Speaking Law to Power

Main Ideas:
“Human freedom means little without purposeful governmental action”

“Greatest constitutional questions may arise from the most humble of places”: Anyone can question the law.

The explosive growth of the police power and the great wave of constitutional struggles that had grown up with it.

Story:
Dr. Spencer approaches small town Pastor Jacobson, informing him about the Board of Health’s vote to declare smallpox
prevalent in the city and ordering all unvaccinated people (within the last 5 years) to do so or be fined $5 (a heavy fine
considering average wage per week was $13).

Dr. Spencer offered to vaccinate the pastor “right there and then”, free of charge. Jacobson “absolutely refused” and he
was summoned to court, tried, and found guilty (crime: “refusing vaccination”). Jacobson appealed; stretched on for 3
years and all the way to the Supreme Court, causing the SC’s first ruling on the subject of compulsory vaccination
(Jacobson vs. Massachusetts) which ruled in favor of Jacobson.

“…a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and

therefore, hostile to the inherent right of every freeman to care for their own body
and health in such way as to them seems best.” – Justice John Marshall Harlan,
opinion of the majority

Background
Trauma, which is the reason for Pastor Jacobson’s protest against vaccination: Born in Sweden, he was subjected to the Swedish national law of
compulsory vaccination. His vaccination went badly and he experienced “great and extreme suffering”. One of his sons also suffered adverse effects
from a childhood vaccination, leading him to believe that a hereditary condition in his family made vaccines hazardous for them.

Board established a pesthouse, opening public vaccination stations, where thousands of citizens lined up for free vaccine.
Vaccination process suffered a setback upon news report that five-year-old Annie Caswell had “died of tetanus, or
lockjaw, following a vaccination.” It was swiftly declared by chief inspector Dr. Edwin Farnham that vaccination could
not have caused the death. There would be no investigation.

Multiple refusals for vaccines popped up across the county. Normalcy eventually returned to Cambridge but it did not last,
as on June 5, a dead body was found (Norfolk Street, a densely populated neighborhood) to display “one of the worst
cases of small pox I have ever seen” (Dr. Spencer). A full-blown outbreak in Norfolk Street followed this event. Deaths
and disinfection movements were conducted. A lot panicked and went to get vaccinated but still, a lot refused.

Board: all vaccine refusers would now be prosecuted.

Jacobson was eventually charged with the crime of refusing vaccination. Under Judge Daniel, Jacobson was tried together
with four other refusers; represented by Pickering.
Pickering: this violated my client’s rights as a citizen of Massachusetts and of the US (entering into an argument of
constitutionality)
All four men were found guilty and fined. 3 of the 4 people decided to continue with the case, raising it to the SC.

A constitutional test case was born.

Commonwealth v Pear was the name of the case of the three people.
Arguments:
1. state law is void because it violated “the rights secured to the defendant by the preamble of the Constitution of the
United States”
2. law violated the Constitution’s 5th and 14th Amendment, and several provisions of the Massachusetts constitution,
including it’s “free and equal” clause

Massachusetts Anti-Compulsory Vaccination Society continued to support Pear.

Jacobson continued his case, stating reasons, which arose more from experiences rather than anti-vaccination ideology.
Judge ruled all of his assertions as “immaterial”.

Bancroft (representing the Commonwealth):

Whether the theory of vaccination was sound or not was a question for lawmakers, not judges.
“The legislature has an extensive undefined power usually called police power to pass laws for the common good.”
Legislature’s “wide discretion cannot be controlled by the courts unless its action is clearly evasive.”

Lawyers for Pear and Jacobson:

“Where should the courts draw the line between police power and individual liberty? Was there a line at all?”

Police Power, defined:

- comes from the wellspring of sovereignty itself
- “the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution,
as they shall judge to be for the good and welfare of the Commonwealth” –CJ Shaw on Commonwealth v. Alger, a
case involving building a pier.
- in determining scope of police power, 19th century jurists referred to two great common law maxims: “use your
own so as not to injure another” and “the welfare of the people is the supreme law”

Reconstruction Period - remade the constitution, adoption of the 13th, 14th, and 15th Amendments
- had remarkably little immediate impact on the theory and practice of police power (US SC made
sure this was so)

Industrialization Period- organized labor and social reformers pushed state legislatures to regulate working conditions,
police power was used to control monopolies and suppress labor strikes.

As police power grew, so did the challenges to it; emphasizing “constitutional limitations” on the police power.
Fundamentally, police power is due process. But by the end of the century, conservatives have convinced judges that
police power was an almost unnatural force, best kept close to judicial control.