Pox_ An American History - Michael Willrich [240]
31 “Test Vaccination Case.” Defendant’s Exceptions in Commonwealth v. Pear, 1903, Massachusetts Reports Papers and Briefs, vol. 183, 2–3, SLL (hereafter “Pear’s SJC Exceptions”).
32 See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998).
33 “Test Vaccination Case.” “Pear’s SJC Exceptions,” 2–4.
34 “Stands by Albert M. Pear,” BG, Dec. 2, 1902, 4. “In the Brickyards.”
35 “Discuss Vaccination,” BG, Nov. 4, 1902, 7.
36 “Jacobson’s SJC Exceptions,” 4.
37 Ibid., 2–4.
38 Ibid., 4–6.
39 “Smallpox History.” “An $18.30 Tax Rate,” CC, Aug. 23, 1902, 1. “Smallpox Annihilated,” ibid., Sept. 6, 1902, 5. CAMBOH 1902, 9, 22–26.
40 Brief for the Commonwealth, Commonwealth v. Pear, 1903, Massachusetts Reports Papers and Briefs, vol. 183, SLL, 2 (hereafter “Bancroft SJC Pear Brief”). The language is identical to that in Brief for the Commonwealth, Commonwealth v. Jacobson, 1903, Massachusetts Reports Papers and Briefs, vol. 183, SLL, 4 (hereafter “Bancroft SJC Jacobson Brief”).
41 “Jacobson SJC Brief,” 18–19.
42 “About the Court,” Supreme Judicial Court Web site, http://www.mass.gov/courts/sjc/about-the-court.html, accessed December 21, 2009. Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (New York: Knopf, 2002), 290–92. “Ex-Justice Knowlton Dies,” NYT, May 8, 1918, 11.
43 Commonwealth v. Alger, 61 Mass. 53, 84–85 (1851).
44 See generally Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: University of Chicago Press, 1904); William J. Novak, The People’s Welfare.
45 Roberts v. Boston, 59 Mass. 198, 209 (1849).
46 Barron v. Baltimore, 7 Pet. 243 (U.S., 1833).
47 Slaughter-House Cases, 83 U.S. 36 (1873).
48 United States Constitution, Amendment XIV, Sec. 1.
49 Slaughter-House Cases, 83 U.S. 36, 78, 81 (1873).
50 Slaughter-House Cases, 83 U.S. 36, 87, 88, 122 (1873).
51 Freund, Police Power, v.
52 Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1868). See David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888–1986 (Chicago: University of Chicago Press, 1990), 40–50.
53 Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: The F. H. Thomas Law Book Co., 1886), 10. See In Re Jacobs, 98 NY 98 (1885); Ritchie v. People, 155 Ill. 98 (1895).
54 Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897). Currie, Constitution in the Supreme Court, 47.
55 See Willrich, City of Courts, esp. ch. 4.
56 “Political Temperaments,” Outlook, Jul. 30, 1904, 728–29. On this crucial point, see also David G. Ritchie, Natural Rights: A Criticism of Some Political and Ethical Conceptions (London: Swan Sonnenschein & Co., 1895). Ritchie observed, “Compulsory education, compulsory vaccination, compulsory notification of infectious diseases, etc., are infringements of the family, but in the interest of the liberty—the real, positive liberty—of the individuals who belong to the family, and of others. If an individual has a certain minimum of education and of protection from gross neglect and from infectious diseases secured to him, he is to that extent more ‘free’ to make what he can of his natural powers and of his opportunities, than if he is entirely at the mercy of ignorant parents, and of dirty, diseased, or fanatical neighbors.” Ibid., 218.
57 Later historians and legal scholars would adopt the progressives’ perspective, emphasizing that “in the early decades of the twentieth century, substantive due process was by and large confined to the protection of economic liberties from government regulation.” See, e.g., “Due Process, Substantive,” in Encyclopedia of American Civil Rights and Liberties, ed. Otis H. Stephens et al. (Westport, CT: Greenwood, 2006), vol. 1, 281.
58 Freund, Police Power, 109, 16.
59 “Compulsory Vaccination and Detention in a Pest House as an Infringement