Pox_ An American History - Michael Willrich [181]
And so by the time the Massachusetts Supreme Judicial Court heard the Jacobson and Pear cases, the school vaccination cases had established a complex line of precedents. No court had invalidated a statewide school vaccination law, but at least five courts had imposed some form of “present danger” standard as a limitation on the rule-making powers of boards of health and education. As the Central Law Journal proclaimed after the Mathews victory, “Compulsory vaccination is evidently a gross interference of individual liberty and can be justified on only one ground—an ‘overwhelming necessity,’ which is the only real justification of what is known as the police power.” Overruling necessity—the community’s right of self-defense—was a very old rationale for police power. But it had never been the only one. The vaccination litigants were pressing the courts toward a subtle shift in their understanding of that doctrine. Once a phrase that could justify all manner of state action, “overruling necessity” was taking on a double life as a legal standard for limiting official action—particularly of administrative bodies—whenever personal liberties were at stake.76
Of course, Albert Pear and Henning Jacobson were not schoolchildren. In the thirty years since Slaughter-House, laws that interfered with the economic rights of men—whether for their own good or for the good of the community—had become vulnerable to substantive due process arguments. In 1886, the Pennsylvania Supreme Court invalidated a state law that forbade iron mills to pay their workers in company scrip, rather than real currency. The court declared the provision “utterly unconstitutional and void” because it prevented two competent individuals—employer and employee—from freely contracting with each other. Never mind that the companies always had the upper hand. The court called the scrip ban “an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.” Since 1886 state courts had repeatedly used similar reasoning to invalidate state laws that set maximum hours or minimum wages for American workingmen. If the government couldn’t tell a grown man to call it a day after eight or ten hours on a sweltering factory floor, could it tell him to bare his arm and take his medicine?77
During smallpox epidemics, local councils and boards of health issued general vaccination orders, sometimes under the express authority of a state law (as the Cambridge Board of Health had done) but more often not. These orders were not directed at children seeking access to a public institution; they applied, at least officially, to everybody. Whether carried out in big cities by virus squads or in small towns by sheriffs or physicians, these orders were wildly unpopular, especially among the workers, African Americans, and immigrants who bore the brunt of them.
Reports of excessive force enraged some judges. In 1895, Judge William Gaynor of the Kings County Supreme Court (a trial-level court) lashed out against Brooklyn’s overzealous health commissioner. Z. Taylor Emery had ordered vaccination raids without authority of a state law. In habeas corpus proceedings, Judge Gaynor (the future mayor of New York) ordered the release of two Brooklyn expressmen, William H. Smith and Thomas Cummings, who had been quarantined in their own Franklin Street stable after they refused to be vaccinated.