July 20, 2021
Horowitz appeared to be responding to news that a Trump-appointed federal judge refused to block Indiana University’s COVID-19 vaccine mandate.
Relying heavily on Jacobson v. Massachusetts to justify his decision, Judge Damon R. Leichty concluded, “In sum, the law today recognizes Jacobson as a precursor to rational basis review. This is consistent with statements of many justices who continue to acknowledge Jacobson as good law, albeit with constitutional restraint.”
What is the Jacobson case?
In Jacobson, Massachusetts passed a law allowing cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, with some exceptions. Henning Jacobson refused vaccination, claiming that he and his son had had bad reactions to earlier vaccinations. The state fined Jacobson $5 (about $150 in 2020).
Jacobson appealed Massachusetts’ law to the Supreme Court, which held that the law was a legitimate exercise of the state’s police power to protect its citizens’ public health and safety. Local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed, the Court reasoned.
An Constitutional Tragedy: ‘Three Generations of Imbeciles Are
Two decades after Jacobson, the Supreme Court upheld (8-1) a Virginia State law that allowed for the sexual sterilization of institutionalized persons to promote community health.
Carrie Buck was committed to a Virginia state mental institution in 1924. That same year, Virginia passed a eugenics-based law allowing for the sexual sterilization of institutionalized persons.
Looking to determine if the new law would pass a legal challenge, Albert Sidney Priddy, superintendent of the Virginia State Colony for Epileptics and Feebleminded, filed a petition to his Board of Directors to forcibly sterilize Carrie Buck. She appealed the decision to the United States Supreme Court.
Justice Oliver Wendell Holmes Jr. delivered the opinion of the Supreme Court. Relying on the earlier Jacobson case, Holmes wrote, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
Holmes justified the state statute, arguing it was a constitutional exercise of the state’s police power to promote the health and safety of its citizens. Offering a chilling justification, Holmes concluded, “[t]hree generations of imbeciles are
Buck is More Than A One-Off
In his opinion regarding forced vaccines for university students, Judge Leichty flatly dismissed assertions that Jacobson set a dangerous precedent. “This case isn’t Buck…,” he proclaimed. But the same could be said about Judge Leichty’s reliance on Jacobson. The case against Indiana University’s forced vaccination policy isn’t Jacobson. More than one hundred years after Jacobson, neither public health nor constitutional law is the same.
First, the university’s policy makes a COVID-19 vaccine a prerequisite for continued employment for faculty and staff, and continued enrollment at the university for students (never mind that students have a very low risk of death). That’s a far cry from Jacobson’s $5 fine.
Second, the policy requires individuals to receive a temporary emergency use authorization vaccine without providing any alternatives, such as proof of a negative COVID testing or the ability to work remotely.
Judge Leichty furthered argued that Buck v. Bell was just a “[o]ne over-extension…” of the Jacobson decision. But that reading neglects the context in which Jacobson was decided.
The opinion was handed down during the Progressive Era of the Court, where emphasis on enhancing governmental power at the expense of the individual (that included the eugenics movement) culminated with Buck. In sum, Buck was not an aberration; it was the logical extension of Jacobson.
Second, Buck opened the floodgate to numerous states enacting sterilization laws of their own, initiating a massive increase (27,000 within the first ten years following the decision) in the number of annual involuntary sterilizations. That’s more than a mere “over-extension”; that’s a national tragedy made possible by Jacobson.
Third, some have argued persuasively that the reasoning underpinning compulsory vaccinations and sterilizations from Jacobson and Buck influenced later arguments supporting the compulsory roundup of the Japanese in Korematsu v. United States, 323 U.S. 214 (1944).
Without Meaningful Review, Courts Risk Sustaining Gross Civil Rights Violations
Fundamentally, the problem with Jacobson and Buck is the near carte blanche deference many courts have shown the government during the COVID pandemic.
The pandemic is severe, and the government should take reasonable steps to mitigate the virus’ impact. But too many judges have given the government a near a blank check by requiring only minimal justification for the government’s COVID policies.
History is replete with examples where government officials in the heat of the moment “[f]requently have overestimated the need to restrict civil liberties and failed to consider alternative ways to protect the national security.“
Courts have a duty to defend the Constitution, even during a national emergency. Without an independent judiciary, there is no institution to push back against the overreach of governors and mayors and other officials.
Said another way, “When constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances.”