Pox_ An American History - Michael Willrich [188]
During an era when justices still read their opinions from the bench, Harlan preferred to deliver his opinions extemporaneously, like a good sermon. In his long judicial career, he had unexpectedly emerged as the Court’s conscience on civil rights. When the Court announced the doctrine of “separate but equal” in Plessy v. Ferguson (1896), giving constitutional sanction to Jim Crow apartheid in the South, the man who had once opposed the Thirteenth Amendment because it invaded states’ rights issued a thundering dissent: “The Constitution is colorblind, and neither knows nor tolerates classes among citizens.” One of the Court’s more progressive members, he championed the right of the federal government to break up business trusts, and he often bristled at laissez-faire arguments dressed up in the language of substantive due process. Recently, Justice Harlan had faced down the army of lawyers representing a group of railroad barons and financiers that included James J. Hill and J. Pierpont Morgan, as he delivered the Court’s decision to allow the Roosevelt administration to dissolve their trust, the Northern Securities Company. “Liberty of contract,” Harlan proclaimed, “does not imply liberty in a corporation or individuals to defy the national will, when legally expressed.”104
So Jacobson and Williams had no reason to expect good news from Justice Harlan. Harlan wasted few words dismissing all of the plaintiff’s claims that depended on the Preamble (it “has never been regarded as the source of any substantive power,” he said) or the “spirit of the constitution” (the “plain” words of the Constitution “must control our decision”). The trial court’s rejection of Jacobson’s offers of proof, he added, “does not strictly present a Federal question.” And he rejected Jacobson’s equal protection argument, stating that there were “obviously” reasons why a regulation appropriate for adults might “not be safely applied to persons of tender years.” Setting all of those issues aside, Harlan arrived at the heart of the matter: “Is the statute ... inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?”105
The short answer was no. Harlan did not give a short answer. In a richly textured if at times convoluted opinion, the justice tacked back and forth between power and liberty.
Harlan’s rendering of the status of American constitutional liberty in 1905 bore the unmistakable impress of its times. Jacobson insisted the state had invaded his liberty—“the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The Court disagreed. Even in America, liberty was necessarily conditional.
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
There were principles here that dated back a century or more, but Harlan tellingly expressed them in the political key words of progressivism. The interests of a modern “organized society”—with its teeming urban centers, powerful business corporations,