For centuries governments have enacted laws that restrict personal liberty in an effort to curtail highly contagious diseases that can quickly kill thousands. England, for example, sought to control the spread of the bubonic plague with public health laws that imposed criminal punishment for failing to abide by quarantines.
Today, the coronavirus is quickly claiming thousands of lives in America. The disease it causes, COVID-19, is highly contagious. Infectious disease specialists have learned that many infected people have no symptoms of COVID-19 and thus may unknowingly spread the coronavirus to others. These experts advocate restricting social interaction as a means of slowing the spread of the disease and saving thousands of lives.
City and state governments have thus issued “stay-at-home orders” as a means of protecting their citizens. Chanting such slogans as “liberty and freedom before safety and security,” protesters have ignored those orders as violative of their constitutional rights.
The question thus arises, Would a federal constitutional challenge to a stay-at-home order resting upon sound medical recommendations succeed in the U.S. Supreme Court? History suggests it would not.
In 1901 — decades after English physician Edward Jenner discovered a safe vaccine for the highly contagious and often deadly disease of smallpox — an outbreak of smallpox occurred in Boston, Mass.
Acting pursuant to a state statute, the adjacent city of Cambridge adopted a health regulation imposing a $5 fine upon a person who refused to undergo vaccination for smallpox, because the board of health found that vaccination was the quickest way to exterminate the disease.
Citing possible ill effects from the vaccine and the right to control his own health care, Henning Jacobson refused a vaccination at no cost. A jury convicted him for non-compliance with the city regulation.
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After a state court affirmed his conviction on appeal, he brought his case to the U.S. Supreme Court.
Jacobson argued the statute empowering the city to enact its regulation resulted in a violation of his constitutional rights, specifically the liberty afforded him by the due process clause of the Fourteenth Amendment.
Compulsory vaccination, he asserted, is “hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best.”
When the U.S. Supreme Court decided Jacobson v. Massachusetts in 1905, seven of nine justices rejected Jacobson’s argument.
Justice John M. Harlan, a champion of civil liberties now considered by historians as one of the greatest justices of the era, wrote the majority opinion.
(Oddly, neither dissenting justice wrote an opinion.)
The Supreme Court rejected Jacobson’s theory that people have an absolute right of liberty to do as they please.
“The liberty secured by the Constitution ... does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
“There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution.
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“But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members 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 may demand.
“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Self-defense, it was written, might include employment of quarantines to prevent the transmission of contagions.
The Supreme Court noted the city regulation rested upon the board of health finding that vaccination presented the best means of slowing if not stopping the spread of smallpox. The city had thus acted reasonably in requiring vaccinations and, by doing so, had not violated Jacobson’s liberty interests.
What does Jacobson mean today?
Its teaching — that individual rights are not absolute and must, at times, give way when their exercise likely is to cause injury to others — remains sound. It thus suggests any reasonable stay-at-home order resting upon scientific data and imposing a fine for non-compliance would withstand a constitutional challenge.
Indeed, it really cannot be any other way. As Justice Harlan explained in Jacobson:
“Real liberty for all could not exist under the operation of the principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others ... (L)iberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.”
Bruce Kempkes of Earlham is a former assistant Iowa attorney general.