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articulated his famous “clear and present danger” standard in 1919, he altered the meaning of a phrase that had arisen in the vaccination cases as a limitation on administrative discretion. In Holmes’s initial formulation, in Schenck v. United States, the “clear and present danger” standard gave Congress sweeping power to restrain speech. Later that same year, however, Holmes restated his own standard in language more receptive to speech rights—and more consistent with the present danger standard that state judges had established in the vaccination cases. “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned,” Holmes declared.121

Even after Holmes established himself as one of the nation’s greatest champions of First Amendment rights, compulsory vaccination remained for him a powerful metaphor for the reasonable sacrifices that the state could demand of its citizens. In 1927, the justice cited Jacobson v. Massachusetts , and nothing else, as he upheld the right of the state of Virginia to sterilize an allegedly “feeble-minded” woman named Carrie Buck against her will. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” Holmes wrote in some of the most chilling words ever delivered from the Supreme Court. “Three generations of imbeciles are enough.”122

Holmes, though, did not have the last word. Over time, Jacobson v. Massachusetts would attain a more complex place in American law—leaving a legacy more in keeping with the double-sided quality of Justice Harlan’s original opinion. For Harlan had attempted to resolve the Progressive Era struggle between individual liberty and government power with a ruling that bolstered both.

In its first century of life, Jacobson has been cited as precedent numerous times in Supreme Court cases to defend extraordinary exercises of governmental power. It has been used to uphold eugenical sterilization laws, to support the claim that a warrantless entry by law enforcement officials may be legal when there is a compelling need and little time, and, in a recent dissent, to defend the federal government’s right during the twenty-first-century war against terror to detain a U.S. citizen as an “enemy combatant” without due process.123

But on the other side of the balance, Jacobson provided a crucial source of constitutional authority for the post–World War II “rights revolution.” Constitutional scholars have often noted that in the great reproductive rights decisions of the late twentieth century, civil liberties attorneys and the U.S. Supreme Court revived the old discredited language of substantive due process and changed its basic purpose from the protection of economic rights to the creation of private rights of bodily autonomy and integrity. But the antivaccinationists had made such arguments well over a half century earlier in the long line of cases that culminated in Jacobson. As civil liberties attorneys, women’s rights advocates, and liberal judges fought to extend constitutional due process to encompass reproductive rights during the 1960s and 1970s, they brandished Harlan’s language from Jacobson. Supreme Court Justice William O. Douglas cited Harlan’s words in Doe v. Bolton, a 1973 decision that overturned Georgia’s abortion law, to support the proposition that “the freedom to care for one’s health and person” was “fundamental” and only a “compelling state interest” could justify interference with that liberty. In other major reproductive rights cases, the Court cited Jacobson to defend the existence of a constitutional right to sexual privacy and to support the claim that “a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”124

The Jacobson decision has assumed a significance that neither Pastor Henning Jacobson nor Justice John Marshall Harlan could have anticipated in 1905. But the long afterlife of that case underscores