Pox_ An American History - Michael Willrich [172]
The three lawyers had a different historical subject in mind as they compiled their briefs in the cases of Commonwealth v. Pear and Commonwealth v. Jacobson. The cases compelled them to come to terms with the most contentious issue in American constitutional law since the Civil War: the explosive growth of the police power and the great wave of constitutional struggles that had grown up with it.
Bancroft, a novice who graduated from Harvard Law School in 1901, knew enough to understand that he had the easy side of the case. His briefs in the two cases were nearly identical. “The legislature has an extensive undefined power,” he said in both of them, “usually called the police power, to pass laws for the common good.” The legislature’s “wide discretion cannot be controlled by the courts unless its action is clearly evasive.” Whether the theory of vaccination was sound or not was a question for lawmakers, not judges. But if the Supreme Judicial Court should choose to consider that question, it would surely take notice of the fact that vaccination is “the most effective known preventive of one of the most dangerous diseases to which the human race is subject.”40
The briefs for the “plaintiffs in error” contained a few lunatic flourishes. (Again, the bodies of the two briefs were virtually identical; but Ballard contributed an addendum to Jacobson’s brief in order to address the issue of the excluded evidence.) Did Pickering and Ballard really expect the members of the Supreme Judicial Court to swallow their argument that compulsory vaccination was “a greater outrage than the scalping of a living victim by an Indian savage”? Or that this state-imposed “rite” was a “form of worship of the Sacred Cow?” Like the antivaccinationist literature on which they drew, the briefs decried vaccination as a barbaric practice unworthy of a civilized people.41
But the lawyers’ argument for Albert Pear and Henning Jacobson cut much deeper. Their briefs raised the central question of American constitutional law at the turn of the century: Where should the courts draw the line between police power and individual liberty? Was there a line at all?
The Massachusetts Supreme Judicial Court enjoys pride of place as “the oldest court in continuous existence in the Western Hemisphere.” Known in colonial times as the Superior Court of Judicature, the institution opened in 1692 and was immediately busy with the trials of accused witches from Salem. The court acquired its modern name in 1780, when the new Commonwealth of Massachusetts ratified its state constitution, drafted by John Adams (and now the world’s oldest written constitution). In the nineteenth century, the Supreme Judicial Court established itself as a leader in the development of an American common law. Massachusetts industrialized early, and its high court handed down influential decisions in property, torts, and master-servant law, helping to lay the legal foundation for American capitalism. The office of chief justice had been occupied by such legal luminaries as Adams, Theophilus Parsons, and Lemuel Shaw. Marcus Perrin Knowlton, who took it upon himself to write the court’s opinion in the vaccination case, had assumed that position only in December 1902, when President Theodore Roosevelt appointed his predecessor, Oliver Wendell Holmes, Jr., to the U.S.Supreme Court. Holmes stepped into the vacancy left by another former chief justice of the Massachusetts court, Horace Gray.42
In its storied history, the Supreme Judicial Court had more than once had occasion to consider the scope of the police power. Chief Justice Shaw’s 1851 decision in Commonwealth v. Alger remained, more than half a century later, the definitive American statement on the subject. Assistant D.A. Bancroft cited it prominently in his briefs for the vaccination case. Alger involved a classic police power controversy, pitting one citizen’s property rights against the right of the legislature to defend the people’s welfare. The state legislature had established a wharf