Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Courts deciding constitutional challenges to governmental COVID stay-at-home and business-closure measures and the like have struggled to make sense of how to apply the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. Jacobson rejected 14th Amendment challenges to the state’s mandatory (with criminal penalty) smallpox vaccination requirement. Read with modern spectacles Jacobson looks extraordinarily deferential to the state. “[I]n every well-ordered society charged with the duty of conserving the safety of its members,” Justice Harlan for the Court wrote, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public demand.” Brushing aside arguments by the defendant, convicted for refusing the vaccine, that according to some experts the vaccine wasn’t necessary, didn’t work, indeed was dangerous, the Court explained that the legislature, in enacting the statute that empowered the public health board to require vaccines, had taken account of the scientific evidence (on all sides), that the health board itself had acted on the basis of expert opinion, and therefore there was no basis for the Court to substitute its own judgment.
Recently, courts and commentators have wondered about the full meaning of Jacobson. Does it apply in evaluating all public health measures? Does it apply when other rights (to travel, to religious exercise, for instance) are in play given that more recent cases involving those rights require strict scrutiny analysis? Is Jacobson even good law?
It is helpful to read Jacobson alongside the more famous public health case the Court decided two months later: Lochner v. New York. There, as everyone knows, the Court held unconstitutional under the Fourteenth Amendment a New York statute criminalizing employment of bakers for more than 60 hours per week or 10 per hours per day. New York argued that the law was a valid public health measure: bakers who spend long periods in poorly-ventilated bakehouses develop respiratory illnesses and that the quality and quantity of bread (access to which the public health itself depended) would suffer as a result.
Invoking Jacobson, Justice Peckham in Lochner stated that public health measures that implicate constitutional rights must be reasonable. But unlike the Massachusetts vaccination law, the New York bakery law was unreasonable and therefore invalid. The problem, in a nutshell, was that the public health rationale New York supplied was not trustworthy, was not the product of a reliable process grounded in science. While Massachusetts had legislated on the basis of scientific evidence (some uncertain), New York, the Court concluded, had invoked science as a mere cover for enactment of a labor law. “The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best.” (To be sure, determining whether a process was defective might be contested (Justice Harlan, author of Jacobson, would have upheld the New York statute and Justice Peckham dissented in Jacobson); the point is the Court’s distinction not the result in any particular instance.)
Lochner clarifies many things about Jacobson (Jacobson also sheds light on Lochner: I’ll be assigning the two case together when I teach next year).
One significant point is that the requirement of reasonableness in Jacobson is not our modern rational review test but is something much closer to strict scrutiny. Courts today therefore need not view Jacobson as inconsistent with our modern approaches to resolving rights-based constitutional challenges. Differences in terminology should not obscure similarities of substance.
Second, to the extent Jacobson holds fast today, a great deal turns on whether an asserted public health measure falls within the Jacobson framework because it was adopted on the basis of scientific expertise. That point might have some important implications going forward. Most courts have so far rejected rights-based constitutional challenges to COVID-responsive measures. That makes perfect sense in a world in which we assume our public health experts make decisions and recommendations based on the best available science.
Courts, though, might well take a different approach, and justifiably so under Jacobson itself, if they perceive COVID measures to reflect more politics than science.
Today, then, public health experts and government officials have some explaining to do. We were told for weeks that the coronavirus is so dangerous that we must stay home, can’t be in school, can’t go to church or to the beach or the playground, indeed that there are no measures that could safely allow visits to dying family members in the ICU units. And yet these past days, in response to police misconduct, thousands of people have been able to assemble and march—touching, shouting, sweating—many with homemade masks (we were once all told they were not especially reliable) or none at all. Gone are the grim warnings and reminders of our responsibilities to each other. Indeed, government leaders and health experts themselves have joined the marches. A robust commitment to constitutional rights—including to assemble and speak—requires an explanation so far not given.
These protest events will either increase infections and deaths or they won’t. Neither outcome is good for government asking courts to apply Jacobson to other COVID measures. In either case, courts might wonder—Jacobson seems to demand it--whether it can trust that the public health justification reflects a decision based upon scientific expertise or something else.