Pox_ An American History - Michael Willrich [180]
Fethers’s argument raised a question of high importance in the Progressive Era: what were the limits of administrative power—especially when important liberties were at stake? The modern administrative-welfare state was still in its infancy. But municipalities, states, and even the federal government were rolling out new administrative agencies—from railroad commissions to parole boards—to govern new fields of social and economic regulation. The new administrative bodies made their own rules, adjudicated cases, and exercised extraordinary discretionary powers. Critics protested that the rule of law was withering away in America. State boards of health, which first appeared in some places as early as the mid-nineteenth century, were among the oldest administrative agencies. And Fethers was asking the Wisconsin Supreme Court to rein in their rule-making powers.
Remarkably, the court did just that. The opinion in Adams v. Burdge was written, with passion, by sixty-year-old Justice Silas U. Pinney, a former mayor of Madison and a veteran on the court. Pinney noted that the board of health was “purely an administrative body” and one “not directly responsible to the people.” (The Wisconsin Supreme Court, unlike the health board, was an elective body.) The board had “no legislative power, properly so called, and none could be delegated to it.” Pinney conceded that in order to fulfill its statutory purpose, the board must have authority to make reasonable regulations. But in the absence of a public emergency, the board’s sweeping vaccination order was not reasonable. “[T]here was no epidemic of smallpox in or near the city of Beloit,” Pinney wrote, “and yet, by an arbitrary rule, as by a single stroke of the pen, every child of school age, throughout the entire state, that had not been vaccinated, was excluded from the common schools.” The rule would not stand.72
Adams v. Burdge was roundly praised and condemned as a victory for religious freedom. The New York Times lamented that once a state court yielded to the conscience claims of Christian Scientists and antivaccinationists, legalized polygamy was around the corner. But Justice Pinney had in fact said little about religion. He did say that since the police power pressed upon “the natural and private rights of individuals,” it must be founded upon “the law.”73
The Adams case set an important precedent for holding modern administrative power accountable to law. Its logic was widely adopted. In three more cases from 1897 to 1902, state supreme courts imposed clear limitations on the power of administrative boards to order pupils to get vaccinated. In the absence of a state law mandating vaccination as a condition for admission, no board could impose such an order unless confronted with the “pressing necessity” of a smallpox epidemic. Ernst Freund described the rule as a “present danger” standard. Some fifteen years before Justice Oliver Wendell Holmes, Jr., immortalized this phrase in the American law of free speech, state courts had articulated this civil liberties concept in order to protect citizens against unwarranted government health orders.74
Other parents pressed state courts for relief from the double bind that compulsory education and compulsory vaccination measures imposed upon them. A public education might be a privilege, but in a growing number of states compulsory education laws now made that privilege a legal obligation for parents who could not afford to send their children to a private school. By a bare 3 to 2 majority, in 1901 the Michigan Supreme Court ordered the Kalamazoo school board to admit the healthy but unvaccinated children of George R. Mathews, a Christian Scientist.