Pox_ An American History - Michael Willrich [191]
Many observers instantly recognized that the Jacobson decision had important ramifications beyond the vaccination question. Much of the progressive reform agenda—including the great welter of labor legislation enacted in the states in recent years—had been justified on the grounds that it promoted the public health. If the Supreme Court had ruled that the states had no right to compel vaccination during a smallpox epidemic, how would other measures, less directly related to the public health, have survived constitutional challenge? The New York Tribune observed that the Jacobson ruling had “a special interest for New-York,” because of its implications for an ongoing suit to strike down the state’s tenement house law. “It is reassuring to find the Supreme Court taking a view of the scope of the State’s police power in which the community’s right to protection against sanitary abuses cannot be jeopardized by individual obstinacy or individual greed.”113
But the Supreme Court itself muddied the constitutional waters just a few months after Jacobson with its instantly notorious decision in Lochner v. New York. In a 5 to 4 decision (written by Justice Peckham) the Court struck down the state’s ten-hour law for bakers as an unconstitutional violation of the right of bakers and their employers to contract freely with one another. It was the first time the Court had brandished the controversial concept of liberty of contract, in a case not involving interstate commerce, to override the ruling of a state court and restrain the legislative exercise of the police power. Peckham distinguished the case from Jacobson, claiming there were no legitimate public health purposes at stake in the bakers law.114
In dissent, Justice Harlan made a mockery of that claim. He cited medical studies that documented the many ailments suffered by bakers due to the long days spent working on their feet, inhaling flour dust in the extreme heat of a bakery. Harlan found much evidence to support the legislature’s belief that more than ten hours of work each day in a bakery “may endanger the health, and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the State, and to provide for those dependent upon them.”115
Justice Holmes wrote a separate dissent. Objecting that the majority seemed to have forgotten the Court’s decision, just “[t]he other day” in Jacobson, Holmes said Peckham’s opinion relied on a “perverted,” laissez-faire reading of the word “liberty” in the Fourteenth Amendment. “A reasonable man,” said Holmes of the bakers law, “might think it a proper measure on the score of health.” Without a shred of justification or precedent, the majority had usurped “the right of a majority to embody their opinions in law.”116
For more than a century afterward, constitutional scholars and historians would remember the first decades of the twentieth century as the “Lochner era,” a dark period in the history of American law, when the U.S. Supreme Court used a business-friendly rhetoric of individual liberty to strike down urgently needed social legislation. Lochner was an important decision. But it was less important for its holding than for its cultural reverberations. The decision outraged and focused the intellectual energies of an entire generation of progressive legal thinkers and activists, who would over the next quarter century lay the conceptual groundwork for the New Deal. But even