COVID, Civil Liberties, and the Police Power

In its 1905 decision Jacobson v. Massachusetts, the U.S. Supreme Court rejected constitutional challenges to a Massachusetts compulsory-vaccination law and a municipal smallpox vaccination order. Once the COVID-19 virus was classified as a pandemic, Jacobson quickly became the go-to case on the U.S. Constitution and public health.

Jacobson has been getting cited a lot in litigation this fall about mandatory vaccination policies issued by state universities or state or municipal governments. Most of those citations read Jacobson as U.S. Chief Justice John Roberts has—deferentially: “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States.” Public-health experts read Jacobson similarly, as a blank check for state policies promoting public health. And many friends of ordered liberty have found Jacobson troubling. In a post on this website, James Stoner argued that Jacobson needs to be reconsidered. Sean Trende recently called Jacobson a “civil liberties nightmare,” and he warned that it is being cited by courts as an “argumentative checkmate.”

I want to take another look at Jacobson in this essay. Today, many assume that the power to regulate is the power to command people to do things subject to penalties sponsored by the government. Jacobson v. Massachusetts assumes and applies a different conception of the power to regulate—the power to coordinate behavior so that everyone is respecting one another’s rights. Just policies “regulate” in the sense that they make rights in positive law “regular” in relation to their natural rights. That understanding gives people a way to reason about civil liberties and the public health at the same time—even during a pandemic.  

Before proceeding, let me offer three disclaimers, to make clear what this essay is not about. First, this essay avoids questions about federalism. I assume that rights and public health priorities should be set by the level of government closest to the citizenry, but this essay doesn’t show as much. Second, this essay steers around complications that arise when a government requires people to get vaccinations as a condition of using state facilities (students attending state universities) or as a condition of holding state jobs (teaching at public schools). This essay focuses on a tougher question—whether a government may ever compel people who aren’t doing public business to get vaccinated.

Most important, this essay says little about what legal rights Jacobson entitles citizens to in contemporary constitutional law. Josh Blackman argues that, in original context, Jacobson does not require courts to defer to legislatures and public health regulators as much as interventionist scholars and deferential judges now claim. I think Blackman is right, and this essay supplies further proof confirming his arguments. Here, however, I study Jacobson less as a lawyer and more as a political theorist. Jacobson assumes and applies a rich but limited understanding of the police power. That understanding seems to have been forgotten. We do need to recover Jacobson‘smeaning in constitutional law. But we need that meaning even more for our political discourse.

The Opinion in Jacobson

A Massachusetts statute authorized all cities and towns to require residents to get vaccinations deemed necessary for the public health and safety, and it set a $5 penalty for disobeying any municipal regulation issued under its force. In 1902, the city of Cambridge adopted such a regulation, for smallpox vaccinations. Henning Jacobson refused to get the vaccination or pay the penalty, and he challenged the constitutionality of the statute. His most serious arguments relied on the Fourteenth Amendment.

Although the U.S. Supreme Court sided with Massachusetts, its opinion (by John Harlan) took Jacobson’s Fourteenth Amendment arguments seriously. The Court recognized an “inherent right of every freeman to care for his own body and health in such a way as to him seems best.” But it warned that this right was not “an absolute right … to be, at all times and in all circumstances, wholly freed from constraint”; it was instead “freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” And the Court recognized in states lawful authority to protect individual rights. The Court called that authority the police power, the power to make “such reasonable regulations … as will protect the public health and the public safety.”

Those basic principles forced the Court to ask: Were the statute and regulation legitimate police regulations, or unjustifiable invasions of Jacobson’s liberty? To say which, the Court asked whether the statute and regulation “ha[d] no real or substantial relation to the protection of the public health and the public safety.” State power “might be exercised,” the Court acknowledged, “in … 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.”

On that basis, the Court asked a series of questions about ends and means. First, was there any demonstrated basis for believing that smallpox was communicable and deadly? Yes—smallpox was present and infections were increasing. Second, did compulsory vaccination seem reasonably likely to prevent the health threat? Yes—and the Court canvassed vaccination policies in the U.S. and abroad confirming as much.

But the Court then asked whether the statute and regulation seemed to make reasonable efforts to avoid jeopardizing civil liberties. On this issue, the Court limited its holding. Jacobson had not proven that he would face serious effects from getting a smallpox vaccine, but the Court warned that there would be a different case “if it be apparent … that vaccination, by reason of [a challenger’s] then condition, would seriously impair his health, or probably cause his death.” Finally, the Court asked whether any exemptions in the scheme seemed arbitrary. None did; it seemed reasonable to exempt unfit children but to make no corresponding exemptions for adults.

The Police Power

In this discussion, the Jacobson Court assumed and applied a distinct understanding of the police power. When people assume that “police regulation” means the power of government to command and control, they assume that government is more unlimited than it needs to or should be. As others and I have shown in scholarship, the police power should be understood to mean a power consistent with individual rights. Genuine police regulations “regularize” legal rights to natural rights. They make the rights that people hold in law about as broad as the substantive rights to which they are entitled by objective principles of morality.

Governments regulate rights through three complementary strategies. Governments regulate when they institute laws that make rights determinate. (On that basis, speed limits regulate rights to travel and to be safe during travel.) Governments also regulate when they coordinate complex activity for the benefit of all of its participants. (On this basis, conveyancing laws regulate rights to dispose of and acquire property.)  And governments regulate when they prevent harm to people’s rights—as through well-crafted public health measures.

But the principles that justify these three strategies limit government power just as surely as they authorize its exercise. The Jacobson Court made as much clear when it warned that there needed to be a “real and substantial” relation between the justification for a government policy and its details. This test does not give the government what Trende calls an “argumentative checkmate” against critics. “Real” requires some serious basis for the government’s regulating in one of the three strategies just mentioned. And “substantial” requires the policy chosen to advance the government’s concern do so reasonably and proportionately.

Today, many assume that the power to regulate is the power to command people to do things subject to penalties sponsored by the government. Jacobson v. Massachusetts assumes and applies a different conception of the power to regulate—the power to coordinate behavior so that everyone is respecting one another’s rights.

The Police Power and Compulsory Vaccination

When the police power is understood as it was in Jacobson, governments will often have legitimate authority to compel vaccinations. As a threshold matter, compulsory vaccinations seem to violate people’s rights to bodily integrity. But imagine that an infectious and dangerous disease enters a population. Those same rights entitle people not only not to be pricked or injected but also to reasonable protection against getting infected in places where they gather with others. Every community needs some institutional mechanism to decide when the right to decide for oneself to get vaccinated must give way to others’ rights to expect fellow citizens to get vaccinated.

When communities make such decisions justly, they prevent harm to people’s rights to health, and they supply determinate policies for protecting those rights. Their laws and policies are then just regulations. If that possibility seems a civil liberties nightmare, think about all the immunizations students need to get to attend schools—among others, against diphtheria, pertussis, tetanus, mumps, measles, rubella, polio, and chicken pox.

To be sure, governments can order vaccinations when they do not have just grounds to do so, and those orders are not genuine regulations but violations of citizens’ rights. But since the government may justly order vaccinations in some cases, there is no shortcut for asking something like whether a government has a “real and substantial” basis for ordering vaccination for a particular disease in a particular context.

The Police Power, Vaccinations, and COVID-19

Today, political discourse is too fragmented. Many public-health advocates make claims about public health and the common good but give short shrift to individual rights. And many libertarians assert rights but do not concede the possibility that each person’s rights might need to be regulated to accord with the rights of all. Jacobson offers a middle ground.

Let me illustrate using Jacobson’s framework. As a threshold matter, compulsory COVID vaccination orders require justification. Some COVID-19 vaccines threaten takers with adverse effects—especially blood-clotting and heart-muscle inflammation—and people should be allowed to decide for themselves whether they’re more afraid of COVID-19 infection or of injections and adverse effects. A state might be able to justify compulsory vaccinations. To do so, however, it must show that vaccinations are necessary to secure the rights of others. To do that, a state must show real grounds for believing that COVID-19 is highly dangerous. And also that COVID-19 vaccines are substantially likely to prevent others from getting infected.

To consider those possibilities fully, we’d need to work through all of the medical studies coming out about COVID-19 and vaccines for it, and we can’t do that here. But Jacobson’s account of rights clarifies what medical evidence is relevant and why. And the case’s account of the police power makes clear that states bear the burden of persuasion when they claim just grounds to force people to get vaccinations. Citizens and officials can then argue with one another about the rights and the threats that COVID-19 patients pose to others.

For my part, I doubt that COVID-19 is dangerous enough to justify compulsory vaccination. As serious as COVID-19 is, mortality rates for COVID-19 are far lower than 1% for patients younger than 65 and patients not in a few high-risk categories (like being obese). I also doubt that vaccinations are effective enough to justify compulsory vaccination. I find convincing studies showing that people who are vaccinated spread COVID-19 viruses at least as often as people who contract and develop natural immunities to them. (Vaccinations seem to help immune systems fight COVID-19, but they seem not to stop people from spreading viruses through their mouths and noses.) And the most persuasive justifications for vaccinations do not argue that they are outright effective; they argue only that vaccinations help as one of seven or eight complementary strategies to fight COVID-19. Now, reasonable people could marshal other evidence, they could easily criticize the evidence I’ve marshaled here, and we can all argue how to prioritize people’s rights not to be injected forcibly and their rights not to be exposed to COVID-19 viruses. For almost two years, however, political leaders, academics, and journalists have been making recommendations about COVID-19 policy—without a common framework connecting the public health to individual freedom. That is really troubling. Jacobson points the way to a juster public discourse.

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