A Tale of Two Cases and Two Pandemics

Anthony Sanders · September 8, 2020

When you bring up the year 1905 and “Constitution” most of those schooled in constitutional law think of Lochner v. New York. The famous, or infamous, case (depending on who you talk to) declared that a maximum working hours law for bakers violated the Fourteenth Amendment’s Due Process Clause. It stands as the Supreme Court’s most well-known example of protecting the right to contract. But there’s another U.S. Supreme Court case from 1905 that’s about the Fourteenth Amendment. It too is remembered, but until very recently that memory was mostly confined to public health circles. Suddenly, though, this case—decided by the same nine justices from Lochner—has rocketed to the top of the charts. And the way the case is being used to justify every public health measure fighting COVID-19 has very little to do with its origins. In short, it—Jacobson v. Massachusetts—has become a caricature of itself, appropriated by many for legal reasoning that the 1905 Supreme Court would find unrecognizable.

Before courts reflexively turn to Jacobson without context too many more times, here we’ll examine some of the case’s background, its relationship with its more-famous contemporary, and its long afterlife. Although one was long-ago overruled and one continues to be extolled, the two cases were not that different and should be remembered more for what they agree on than their particular holdings. That includes a skepticism for excesses of state power over the individual. Otherwise the recharacterization of Jacobson, with no appreciation of how different both it and Lochner are from the jurisprudence of today, may transform our current emergency into a long-term weakening of our liberties, with or without a communicable disease.

Smallpox and $5

In Jacobson, the Court addressed whether a Massachusetts man could constitutionally be fined five dollars for refusing a smallpox vaccination. Pursuant to state law the Board of Health for the city of Cambridge mandated that adults be vaccinated. This followed the Board’s determination that smallpox “was prevalent to some extent in the city of Cambridge and the disease was increasing.” The defendant refused vaccination and was prosecuted and fined. The defendant wanted to argue to a jury that the vaccine was not safe, and that it actually caused more harm than good. But the state trial court did not allow this and convicted him. A conviction which the state’s highest court affirmed.

At the U.S. Supreme Court the question essentially was: could the defendant argue that the science behind the law was not sound and that therefore the vaccination lacked a justifiable basis under the Fourteenth Amendment. Justice Harlan, writing for the Court, shut that attempt down, deferring to the political branches over whether a vaccine was effective.

But Harlan didn’t completely defer. He examined facts along the way and provided a standard for when the judiciary could act when the state overreaches in its pursuit of public health.

First, the opinion’s one footnote provided a deluge of statistics on the effectiveness of the smallpox vaccine. That being said, the opinion admitted that judges—and juries—are not very qualified at assessing these technical matters, and that the question lay with the legislature and local health officials. But it stopped short of completely deferring these questions to the political branches. It stated “it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” It then repeated this admonition and provided a standard where a future litigant might properly challenge a public health measure: “if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” And, in case that didn’t sink in, the Court closed by reiterating that sometimes public health measures can go too far because sometimes they “may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” In fact, the Court made clear that it read the Massachusetts law—even though not specifically in statutory text—to perhaps allow for special cases where a person could properly refuse to be vaccinated upon a showing that he was especially at risk from a vaccine (something that Mr. Jacobson had not attempted to do).

Thus, although Jacobson has deferential language—at times quite deferential—about the power of the state to protect the public health as it sees fit, Justice Harlan was careful to say that the “police power” only could go so far before it waded into unconstitutional territory. This included the “real and substantial” test for whether a law is constitutionally justified. We should note that two justices dissented—Brewer and Peckham—but neither penned any opinion.

60 Hours and a Loaf of Bread

Jacobson’s approach is not “on all fours” with Lochner. But it is not too far off either. Lochner—argued four days after the Court decided Jacobson—is well-known enough that we won’t go into detail here. The bottom line was that the Court ruled a New York statute capping a baker’s work week at 60 hours violated the Due Process Clause. The case’s author was Justice Peckham, one of the Jacobson dissenters.

The constitutional standard that Peckham subjected the law to was different from the standard in Jacobson, but perhaps only nominally so. After noting a number of cases where the Court had upheld various restrictions, including working hour restrictions, Peckham declared that in assessing challenges the Court must inquire “[i]s this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?” Somewhat differently, he later recharacterized the applicable standard as whether the law has a “direct relation, as a means to an end, and the end itself must be appropriate and legitimate.” Thus, the difference in the standard from Jacobson was that the law had to be “unreasonable, unnecessary and arbitrary” or “direct” and “appropriate and legitimate” whereas in the earlier case the law had to have “no real or substantial relation” to the public health, morals, or safety.

Simply on the basis of comparing these two strings of adjectives it’s not clear which standard is harder for the government to satisfy. “Unnecessary” does sound harder than “real,” but “substantial” also sounds like a more robust protection of liberty than simply “arbitrary.” Peckham’s second standard of “direct relation” perhaps is higher than either of these, but not obviously so. Further, Jacobson did use the very deferential phrase “beyond all question,” but confusingly made it an alternative to “real and substantial,” muddying whether a law really must be unquestionably unconstitutional to be ruled so. Indeed, Peckham cited Jacobson itself, although he distinguished it without any helpful analysis. (“That case is also far from covering the one now before the court.”)

But it isn’t because of Lochner’s standard that we remember the case. It’s because of the outcome. In subjecting the law to the standard, Peckham reasoned that if this baking law was a reasonable health regulation, then any occupation could have a cap on the number of working hours. Some occupations are less dangerous than baking, but many are more dangerous, he stated. Since capping the hours of many other occupations (he gave some examples, including attorneys and their support staff) would be absurd, the same is true of bakers—unlike laws regulating miners’ hours, or other especially dangerous occupations, which the Court had previously upheld. Peckham was pretty short on evidence that bakers were no different from most other occupations, although it’s been argued that he probably was referring to Joseph Lochner’s brief, which did contain a number of statistics. (See a helpful summary on page 1495 of this article by Professor David Bernstein. For example the brief cited “[a]n expert at the British Home Office [who] found that bakers ranked eighteenth out of twenty-two occupations for mortality, and they had the lowest rates of pulmonary disease.”) If one assumes these factual assertions, given the standards of both Lochner and Jacobson, Peckham’s reasoning is by no means beyond the Pale.  

In contrast, the author of Jacobson, Justice Harlan, disagreed. Harlan quoted a number of the Supreme Court’s cases on the scope of the police power, including Jacobson itself, which repeated a number of variants of the same “reasonableness” standards we’ve discussed above. He especially emphasized the “beyond all question” language from Jacobson. Harlan then applied the New York law to these standards, marshalling experts who claimed that bakers had especially dangerous work conditions, which justified a cap on hours. (Although he also didn’t cite Lochner’s brief or try and rebut its statistics.) If this were true, or at least supportable, then the law was not “beyond all question” and had a “real and substantial” relation to public health and must be constitutional.

One can argue that the standards Peckham and Harlan utilized actually are quite different in application, even though much of the “reasonableness” language is the same. But the biggest difference between the two cases are the facts emphasized. Harlan quoted from experts asserting that baking, contrary to Peckham’s case, really is a very dangerous profession, causing health maladies and early deaths. Peckham disagreed, and, again, could have saved himself a lot of post-humous criticism if he had simply quoted from Lochner’s brief. Harlan’s basic point, however, was that if there was a disagreement, then the state must prevail. It must be emphasized, though, there’s no reason to think Harlan thought that disagreement could be trumped-up; he believed that in Lochner the state was acting in good faith (there’s evidence that’s not entirely true, and that the hours law was an attempt by unionized bakeries to shut down non-union immigrant bakeries with different technology, but you can read about that elsewhere).

Thus, are Jacobson and Lochner different or not? In emphasis, certainly. And the author of each opinion truly seemed to have disagreed with the other on the legitimate scope of the police power (neither signed either’s opinion, after all). But here we are talking about matters of degree. The standards are similar, and the differences seem to be on matters of good-faith doubt. Neither Jacobson nor Harlan’s Lochner dissent calls for total deference to the legislature, only when there is a good-faith argument in its favor (only Justice Holmes’ dissent—which no other justice joined—could be interpreted as accepting that). And it should count for something that three justices joined both majority opinions, emphasizing that the two couldn’t be that terribly far apart.

A Tale of Two Afterlives

Both decisions have been remembered, and although in their issuing year they were not so very much apart, their use in the 115 years since has made them seem like polar opposites. Lochner’s “legacy” is a story that’s been told many times and doesn’t need to be recounted here. Read Professor Bernstein’s excellent Rehabilitating Lochner for that story. Cited occasionally for the proposition that there are limits to the police power until the “switch in time” in 1937, Lochner was then mostly forgotten until the 1960s when it was exhumed as the paramount example of courts “legislating from the bench,” and became a punching bag for judicial abdicationists of left and right. In recent decades, however, many academics and lawyers have worked to correct this fairy-tale version, culminating in Bernstein’s book. Unfortunately, that correction has not—yet—made its way to the Supreme Court.

Jacobson on the other hand has always remained in good standing while being reimagined over the years. In the Lochner era it was often cited in support of the state’s powers to protect public health. This was taken to the extreme in the horrific Buck v. Bell decision, which was enthusiastically authored by Justice Oliver Wendel Holmes. There, the Court blessed the power of the state to sterilize those it deemed “feeble minded.” It’s worth quoting exactly how Holmes cites to Jacobson: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11, 25 . . . . Three generations of imbeciles are enough.”

It should be noted that under the standard of Jacobson, Carrie Buck in no way should have been sterilized. At the age of 17 she was raped by a relative of her foster parents and then had a child. To hide the family’s shame she was institutionalized. The institution, in turn, wanted to test the constitutionality of Virginia’s new sterilization law, and put Buck through the legal process, giving her a lawyer who half-heartedly defended her but whose real job was to ensure that she could lose her right to have more children. That act hardly had a “real and substantial” relationship to public health. One can wonder whether a fear of later, twisted, applications—such as this sanctioning of the butchering of a young woman—is why Justices Peckham and Brewer withheld their signatures from a mere five dollar fine for not getting a pinprick.

Jacobson is not as remembered as much as many other cases from the ”Lochner era,” but it was often cited even long after Buck v. Bell. This generally has been when issues of public health came up, or were at least tangentially related. Unsurprisingly, as sanitation has improved and infectious diseases became less of a concern, Jacobson was cited less and less. Before 2020 the Supreme Court had cited it just over 80 times, about half of those since the 1930s. These were often, but not always, in cases with a health or bodily integrity connection, including abortion, reproduction, and assisted suicide matters.

An Unenumerated Square in a Fundamental Hole

Along the way, things changed in constitutional law. A lot. Before the 1930s there was an understanding that a state law could violate the Fourteenth Amendment if it went beyond its legitimate police powers. What that exactly meant was contested, as the debate between Justices Peckham and Harlan illustrated. Given the expansive understanding of the police power it was a hard standard for states to fail, but fail states often did, when laws were found to not actually further the public interest but instead further improper ends, such as economic protectionism.

At the same time, the Court began to protect the rights enumerated in the Bill of Rights against the states. This happened very slowly, and the Court did not explicitly apply any of the Bill of Rights against the states until it did so with free speech in (at the earliest) 1925.

Then came the judicial revolution during the New Deal. The court essentially abandoned the protection of unenumerated rights, such as economic liberty. But, at the same time, it said that for enumerated rights, such as those in the Bill of Rights, those would (mostly) receive meaningful protection. This was all spelled out in the famous (or, again, infamous) Footnote Four of the 1938 case United States v. Carolene Products Co. In the years that followed, the Court protected more and more liberties in the Bill of Rights, including reaffirming freedom of speech and adding free exercise of religion.

To be exact, the Court did not absolutely abandon the protection of unenumerated rights. By the 1960s the Court started saying that a few special unenumerated rights got the same protection as enumerated rights (the list is short, and we don’t need to tell that story here). It also said that for all other unenumerated rights a law could still be unconstitutional for violating them, but under an incredibly permissive standard. In that case, for a law to pass constitutional muster, as the 1955 case of Lee Optical v. Williamson decreed, “[i]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” In other words, it doesn’t matter that the legislative measure would actually address a problem but only that the legislators thought that it was “rational.” This was called the “rational basis test,” but it was a very different standard than those with similar terminology applied in both Lochner and Jacobson. Under Justice Harlan’s formulation a law was still unconstitutional if it lacked a “real and substantial” relationship to a legitimate interest such as public health. The test of Lee Optical made that standard look, well, like Lochner.

No one in 2020 cites Lochner as “good law.” You might think it’s a good case, but everyone recognizes that when applying what the Supreme Court has said is “up-to-date constitutional law” the case’s standards do not apply anymore. As for Jacobson, although it’s often cited for the proposition that the states have wide powers to protect public health—which still is true—it does not articulate the modern standard for challenges under the Fourteenth Amendment, and does not have anything to do with the application of the Bill of Rights because it far predates the incorporation of those rights to the states, let alone the standards—generally strict scrutiny or some form of intermediate scrutiny—that go along with those enumerated rights. Under those higher standards the burden is on the state to justify a law, a night-and-day difference from any “rational basis test,” especially the one of Lee Optical.

Not Much Hindsight in 2020

Suddenly courts are citing this old, outmoded opinion constantly. Faced with the COVID-19 pandemic and challenges to the multitude of public health measures we’ve seen in the last six months, judges have apparently searched the caselaw and found very little to work with in this extremely odd situation. And so in about 120 cases since the pandemic began (as of early September 2020), courts have cited Jacobson in assessing whether these measures are constitutional. Given we haven’t had an infectious disease emergency on this level since not long after 1905, it isn’t surprising courts have turned to Jacobson for a bit of guidance. What is surprising is how they are using it.

What is Jacobson? A modern rational basis case? A case about how to handle claims invoking enumerated rights? No, it isn’t either of those. But Chief Justice Roberts nevertheless cited it in a free exercise case. And since he spoke on May 29, his invocation has metastasized.

In the case, South Bay United Pentecostal Church v. Newsom, a church challenged a California public health order limiting church attendance to 25% of capacity or 100 parishioners, whichever is smaller. The order also banned gatherings in theaters, concert halls, stadiums, and similar facilities. But it exempted grocery stores and a slew of other businesses. The issue came to the Court on an emergency motion, and the Court itself simply denied the request without comment, as is often true for emergency requests. But Roberts, speaking only for himself, wrote a concurrence where he said the order did not seem to be singling out religious activities differently from similar secular activities, and so there was no discrimination and it was therefore constitutional. He could have made himself more clear by citing the case Employment Division v. Smith—written by Justice Scalia—that says broadly applicable laws that do not discriminate against religion are generally immune from free exercise claims, and it seems that was what he was relying on. He could have left the issue at that. But, instead, he went on to broadly opine that lifting pandemic restrictions “is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” Those quotes are from Jacobson.

The use of Jacobson is understandable, yet a bit odd. Given that Roberts had already concluded the First Amendment did not apply, the modern standard would be the rational basis test of Lee Optical and later cases, not the different standard of Jacobson. Why not just cite a recent rational basis case and leave it at that? Because, of course, Jacobson gives the imprimatur of the Court’s last dalliance with an actual communicable disease. What Robert’s method leaves out, however, is the Lochner-like standard of Jacobson under which plaintiffs in 2020 would have a much better chance at succeeding.

Robert’s use of Jacobson wasn’t too much more than a rhetorical flourish, given that his opinion was merely a concurrence and he had already stated that the Free Exercise Clause did not apply. (Something with which Justices Kavanaugh, Thomas, Gorsuch, and Alito disagreed.) But its use in the lower courts during the pandemic—with similar disregard of its roots—has been much more consequential.

The Fifth Circuit led the way with an opinion, In re Abbott, on April 7, 2020 concerning a Texas order from the first days of the pandemic postponing non-essential surgeries, which included abortions. The Supreme Court has held that abortion is a right that receives a form of heightened scrutiny, so the plaintiffs in the case argued that scrutiny applied to the challenge. Not so said the court, relying in large part on Jacobson, translating its language into a four-part test. Even though the case predated modern fundamental rights jurisprudence, the court took Jacobson’s language stating that “constitutional rights may be reasonably restricted” to apply the same standard to all rights.

Not all courts have gone “full Jacobson.” Some have recognized that heightened scrutiny still applies to certain rights even during a pandemic, including in a free exercise case in New York. At least one other, in the Sixth Circuit, interpreted Jacobson to apply but to have a pretty substantial (as in not modern rational basis) standard anyway.

But other courts have incorrectly paired Jacobson with the modern rational basis test, citing language from both while emphasizing the very low standard the government is faced with in defending public health measures. Courts have cited the rational basis test’s most extreme articulation of FCC v. Beach Communications (1993) (merely requiring “any reasonably conceivable set of facts” to uphold a law (emphasis added)), and then elaborate on that with the various terms from Jacobson. Of course, those same cases do not cite Lochner, which had, again, similar language to Jacobson, but other than the fact that Lochner has been overruled they might as well have. Neither case has much more of a “real and substantial” relationship to Beach Communications than the other.

A recent district court decision in New Jersey crystalizes this unironic reimagining of Jacobson. After first citing Beach Communications and similar modern cases it said “Jacobson teaches that this Court will not substitute its judgment over the judgment of those who are politically accountable to the citizens of its state. Therefore, rational basis is the appropriate review for this claim, and Plaintiffs have not satisfied their burden to demonstrate Defendants’ orders are not rationally related to the legitimate state interest in stopping the spread of COVID-19.” In other words, a case teaches us to apply a standard of review that did not exist when the case was issued.

The take-away from these cases is that Jacobson is often relevant to challenges to COVID-19 restrictions, including in cases where an enumerated, “fundamental,” right is being infringed, and is also relevant in rational-basis challenges applying modern caselaw. Of course, Jacobson itself doesn’t make any sense in either of these contexts.

In the Future Get Your History Straight

A thoughtful reader will now ask what’s the big idea anyway? Perhaps Jacobson is being used and abused, but does it really matter? Most of these measures are temporary, and although brushing away fundamental rights might have short term harms, that is only happening because of a unique emergency. Further, rational basis cases are hard cases to win in anyway, so how does applying Jacobson make the law any worse?

Those are very good points, but unfortunately there is a lot of damage the courts can do through their ahistorical citations. Just ask Carrie Buck.

First, using Jacobson as a trump card against heightened scrutiny is extremely dangerous. We at IJ are not fans of modern “fundamental rights” jurisprudence, because we think all constitutional rights deserve strong protection, not just those few the judiciary has anointed to that status. But for those rights, such as free speech and free exercise, heightened scrutiny is an extremely important tool against government meddling in people’s lives. An “emergency” exception in the case of public health (which is what applying Jacobson to fundamental rights amounts to, despite the Fifth Circuit’s unconvincing explanation to the contrary), opens the door to other “emergencies” in other areas that might chip away at hard-fought gains for judicial engagement in those areas. Search and seizure protections, parental rights, and procedural due process safeguards are a few of several examples.

Second, when it comes to rational basis, it hurts the long-term cause of reviving real protection for other rights, such as economic liberty, if Jacobson is reimagined as a modern rational-basis case. Reading together Jacobson, Justice Peckham’s opinion in Lochner, and Justice Harlan’s dissent in Lochner demonstrates what real protection can look like. These three-not-that-dissimilar opinions tell us facts matter and the state can overreach if its laws become “arbitrary” and lack a “real and substantial” connection to a legitimate interest. The Lee Optical/Beach Communications approach is very different from that. Then, facts don’t matter very much and laws must be downright “irrational.” If courts are to move to protecting liberties beyond just a chosen few “fundamental” ones, both Jacobson and Lochner (including Justice Harlan’s opinion, but not Justice Holmes’) have a lot to teach them. It’s less likely that will happen, though, if Jacobson morphs into Beach Communications.

However long our current pandemic lasts, litigation regarding the response to it will be with us for a while. As an iconic pandemic case it’s not surprising, or improper, that Jacobson is part of that litigation. But it is my hope that it is used with its antiquity in mind and its relation to its partner from 1905. Without that context courts may continue weakening liberty at the expense of the few rights they have protected in recent years, and at the expense of the history we need if we are to protect more in the future.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.