Pox_ An American History - Michael Willrich [192]
Instead, many contemporaries continued to look to Jacobson as the better reference point for understanding the real extent of government power in America’s modern, urban-industrial epoch. Lochner notwithstanding, American judges and legal scholars immediately began citing Jacobson as the authoritative statement of the almost unlimited extent of the police power in the United States.
In the decades after Jacobson, even as antivaccination societies continued to form and fight school vaccination mandates in the state legislatures and courts, the vaccination question became a touchstone in the American legal imagination. In his 1914 book on antitrust law, for example, former president William Howard Taft cited compulsory vaccination as a synecdoche for the entire rising regulatory edifice of modern American government. “Changing conditions prevailing in society,” necessarily led the government to impose a host of new restraints on personal freedom. “Take, for instance, the compulsory vaccination laws sustained by the Supreme Court,” Taft wrote, recalling his years in the Philippines. “I have had an opportunity to witness the effect of such laws in the Philippines upon a people that had not had popular government and had been steeled to arbitrary rule, and yet they resented the health laws as savoring of intolerable cruelty.” That almost primal resistance to compulsory vaccination, he suggested, was all the more strongly resented by a liberty-loving people accustomed to democracy and the rule of law. But a maturing urban-industrial society had to put away such childish liberties. Taft’s very next paragraph traced the connection between modern health laws and the array of other regulations that had necessarily been imposed on industrial society, including tenement house laws, child labor laws, and maximum hours laws. In Taft’s view, Lochner was an aberration. Jacobson better reflected the real state of American constitutional law.118
Despite the careful safeguards Harlan laid out in his Jacobson opinion, the decision initially had a negative impact for civil liberties. With the coming of World War I, the federal and state governments crushed dissenting political speech with an extraordinary wave of repressive measures. Among the thousands of Americans placed under surveillance by J. Edgar Hoover’s new Bureau of Investigation for alleged seditious activities in 1918 were several activists involved in what one special agent called “the anti-vaccination crusade.” They included the chiropractor William Heupel of Iowa, the activist Jessica Henderson of Massachusetts, and the former Liberator editor Lora C. Little, who now lived in Portland, Oregon. The federal agents viewed these antivaccinationists as subversive and un-American—and not only because their propaganda threatened to undermine the Army’s vaccination program.119
The war years opened up a new front of civil liberties controversies—this time over the question of the proper bounds of political speech. Significantly, the landmark constitutional cases that emerged from the wartime civil liberties battles bore distinct echoes of the earlier fights over vaccination, as the phrases “conscientious objector” and “present danger” took on new, now familiar meanings. As Justice Holmes, who had signed Harlan’s Jacobson decision, suggested in a personal letter to Judge Learned Hand in 1918, all of these liberty questions were connected. It was in this wartime context that Holmes told Hand, “free speech stands no differently than freedom from vaccination.”120
Holmes still regarded compulsory vaccination as a reference point for how far the democratic majority might rightfully override the liberty interests of minorities. When Holmes first