The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Two prominent decisions in the past week turned on Supreme Court jurisprudence from 1905: Jacobson v. Massachusetts and Lochner v. New York.
Regina Metropolitan Co. v. New York State Division of Housing & Community Renewal
First, the New York Court of Appeals decided Regina Metropolitan Co. v. New York State Division of Housing & Community Renewal. This case declared unconstitutional the state's new rent control law. Specifically, New York's highest court found that parts of the statute applied retroactively, in violation of the Due Process Clause of the Fourteenth Amendment.
In dissent, Justice Wilson compared the majority opinion to Lochner. He charged that "the disgraced era of Lochner makes its tragic return home." Of course, Lochner had nothing to do with retroactive laws. Lochner is merely a stand-in for any ruling that provides substantive protection for property rights. Justice Wilson admits as much: "This is Lochner redux: a grotesque usurpation of the legislature's role in determining economic regulation when no fundamental rights are at issue." He adds, "Our Frankensteinian role in resurrecting Lochner by assembling ill-fitting fragments of moribund doctrines frightens me, because it portends ill for the future." (This ghoulish rhetoric reminds me of Stambovksy v. Ackley, another prominent New York property case.)
The majority opinion, per curiam, disclaims any reliance on Lochner: "We agree wholeheartedly with the dissent that legislative judgments are presumptively constitutional and are subject to a rational basis analysis in which the policy preferences of judges have no role." This analysis also has nothing to do with Lochner. The "rational basis test" is a relatively modern innovation. That phrase appeared nowhere in the decisions by Justices Peckham, Harlan, or Holmes.
Rather, the concept of the "rational basis test" emerged in the wake of the New Deal, and Footnote Four of Carolene Products. The Court divided rights into two general categories: fundamental rights and non-fundamental rights. Laws that burdened the former were reviewed with heightened, or strict scrutiny. And laws that burdened the latter were reviewed with lax, or rational basis scrutiny. (People often say that "fundamental rights are reviewed with strict scrutiny." This usage is common, but wrong. The law is reviewed with strict scrutiny, not the right itself.)
It is anachronistic to retroactively graft modern Supreme Court jurisprudence onto old cases. Let's consider Lochner. Justice Peckham twice suggested that the Bakeshop Act was enacted for "other motives." In other words, the Bakeshop Act was class legislation aimed at helping unions, and harming non-unionized bakeshops and their employees. Today, this sort of analysis would be grounded in the Equal Protection Clause. But the Lochner majority held the law violated the Due Process Clause: Lochner was being deprived of his liberty interest on arbitrary basis: helping some groups, while hurting others.
In re Abbott
The second throwback citation of the week came in In re Abbott. A divided Fifth Circuit panel granted mandamus, and allowed a prohibition on abortions to go into effect during the declared "state of disaster." Abbott turned almost entirely on Jacobson v. Massachusetts (1905). Jacobson was decided two months before Lochner. While Lochner was a 5-4 decision, Jacobson was 7-2, though there were no published dissents. Justice Harlan, who wrote the principle dissent in Lochner, wrote the majority in Jacobson.
There are many parallels between the two case. Both cases involved assertions of rights protected by the Due Process Clause. Lochner involved a right of property, as well as a liberty of contract. Jacobson involved a different liberty: the right to be free from physical restraint. That is, the state sought to punish Jacobson for not receiving a vaccination. The case did not impose a vaccine mandate; people who declined the vaccine were forced to pay a $5 criminal penalty. (This model, more or less, is how Chief Justice Roberts rewrote the ACA individual mandate: you don't have to buy an insurance; merely pay a penalty-tax for going uninsured.)
Both Lochner and Jacobson also discussed the state's police power. In Jacobson, the Court unanimously held that the state's police power trumped Jacobson's claim to individual liberty, which was protected by the Due Process Clause. The Lochner majority held that the state did not adduce enough evidence to support the police power law. The principal dissent, by Justice Harlan, found that the state did offer enough evidence to support the law. Justice Holmes, who dissented alone, was not concerned with the evidence provided; he would have simply deferred to the state.
But the similarities do run out. Under modern law, Lochner is considered part of the so-called anti-canon. But Jacobson is good law. Indeed, that precedent has featured in two prominent Supreme Court decision. First, Justice Holmes's decision in Buck v. Bell (1925) relied on Jacobson. This case upheld the state's power to forcibly sterilized so-called "imbeciles." Holmes analogized government-compelled sterilization to government-compelled vaccination. Holmes concluded that "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."
Second, Justice Blackmun's decision in Roe v. Wade (1973) relied on Jacobson. Blackmun rejected the argument that "one has an unlimited right to do with one's body as one pleases." Blackmun explained that "[t]he Court has refused to recognize an unlimited right of this kind in the past." And he cites Jacobson v. Massachusetts (1905) (vaccination) and Buck v. Bell (1927) (sterilization)." Most constitutional law casebooks exclude this passage. Our casebook includes it.
Blackmun's opinion injects both Jacobson and Buck into the Supreme Court's modern substantive due process framework. This analysis is very anomalous. Buck held that the state can sterilize a woman on the flimsiest rationales. But Roe held that the Constitution limits the states power to prohibit abortion. How to reconcile these precedents? I've always read this passage to suggest that Jacobson and Buck serve as limits to the substantive due process right to abortion. That is, the Fourteenth Amendment protects a specific right, but if the state's interest is significant enough, that right can be restricted. And what are examples of state interests that could constrain that right? To prevent an outbreak of a disease (Jacobson), and to prevent "imbeciles" from reproducing (Buck).
The plurality opinion in Planned Parenthood v. Casey also cited Jacobson. The plurality reaffirmed "Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims." Once again, I read Jacobson as a limitation on the substantive due process right at issue.
Back to Abbott. Judge Dennis's dissent committed the sin of modernity. He read, and misread language in Jacobson, in light of contemporary rights jurisprudence. Judge Dennis reduces Jacobson to something of a three-factor balancing test.
The Court explained, however, that individual rights are not gutted during a crisis: Courts have a duty to review a state's exercise of their police power where the state's action (1) goes "beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution," (2) "has no real or substantial relation to" "protect[ing] the public health, the public morals, or the public safety," or (3) "is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Id. at 28, 30. Jacobson, then, stands for the proposition that a state by its legislature may utilize its police power to enact laws to protect the public health and safety, even though such laws may impose restraints on citizens' liberties, so long as that regulation is "justified by the necessities of the case" and does not violate rights secured by the Constitution "under the guise of exerting a police power." Id. at 28-29.
I am truly flummoxed by this analysis. The three factors are carved up from three pages of Harlan's opinions (pp. 28-30). Let's take them one at a time.
The first factor asks whether a "state's action (1) goes "beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution." The ellipses are extremely misleading. Judge Dennis excluded an important element. Here is the full sentence from Justice Harlan's decision. I've emphasized the omitted text:
"In Railroad Company v. Husen, 95 U. S. 465, 95 U. S. 471-473, this court recognized the right of a State to pass sanitary laws, laws for the protection of life, liberty, heath or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders. But as the laws [in Husen] involved went beyond the necessity of the case and under the guise of exerting a police power invaded the domain of Federal authority, and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid."
In Railroad Company v. Husen (1877), Missouri prohibited the importation of out-of-state cattle from March to November. The state defended the measure as a quarantine law to prevent the spread of "Spanish or Texas fever." The Supreme Court disagreed, and found that this law violated the Commerce Clause issue. The "rights" Justice Harlan referenced are the rights of the federal government to regulate interstate commerce! Collective rights of the central government. Husen did not involve individual "rights secured by the Constitution," such as the freedom of speech, or a judicially-enforced right to abortion. Far from it. Judge Dennis erred on this first factor. He used ellipses in a misleading way to cast a century-old precedent in a modernistic light. The crux of the analysis is that Missouri "invaded the domain of Federal authority."
Later, Judge Dennis offers this synthesis of Jacobson:
Jacobson, then, stands for the proposition that a state by its legislature may utilize its police power to enact laws to protect the public health and safety, even though such laws may impose restraints on citizens' liberties, so long as that regulation is "justified by the necessities of the case" and does not violate rights secured by the Constitution "under the guise of exerting a police power."
That statement is not accurate. Husen did not involve any "restraints on citizens' liberties." The case involved a purported quarantine measure that actually violated the Commerce Clause. In other words, Missouri was acting "under the guise of exerting a police power," but instead "invaded the domain of Federal authority." On p. 41, Judge Dennis repeats the citation to Husen, and writes, "the Court clearly anticipated that courts would exercise judicial oversight over a state's decision to restrict personal liberties during emergencies." The case had nothing to do with liberties.
What about the other two factors? Judge Dennis wrote:
(2) "has no real or substantial relation to" "protect[ing] the public health, the public morals, or the public safety," or (3) "is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
These two factors come from Justice Harlan's quotation from Mugler v. Kansas (1887). Here is the full passage:
Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that,
"if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Mugler v. Kansas, 123 U. S. 623
Harlan wrote Mugler as well. This case actually discussed individual constitutional rights. But I think it is a mistake of modernism to equate the word "rights" in 2020 with the word "rights" in 1887. Here is how Harlan describes the nature of rights, with a very Vermuelian reference to "common good."
Nor can it be said that Government interferes with or impairs Page 123 U. S. 663 anyone's constitutional rights of liberty or of property when it determines that the manufacture and sale of intoxicating drinks for general or individual use as a beverage are or may become hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our Government by the observance upon the part of all of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare.
Mugler is not a good hook to hang Abbott on. Indeed, this era was not particularly protective of even enumerated rights. Lest we forget the trio from 1919 of Schenck, Debs, and Abrams. These cases upheld explicit prior restraints of speech during the midst of World War I.
Courts should not look to cases from the Progressive Era to bolster contemporary notions of substantive due process. It is a mistake to cherry pick words from a century old opinion, and graft those words onto modern rights jurisprudence. Jacobson can be read to limit cases like Roe. Jacobson cannot be read to provide additional protections for a right to abortion.
Judge Duncan's majority opinion, which was joined by Judge Elrod, accurately states the relationship between Jacobson and Roe:
The district court, however, failed to recognize Jacobson's long-established framework. While acknowledging that "Texas faces it[s] worst public health emergency in over a century," the court treated that fact as entirely irrelevant. Indeed, the court explicitly refused to consider how the Supreme Court's abortion cases apply to generally-applicable emergency health measures, saying it would "not speculate on whether the Supreme Court included a silent 'except-in-a-national-emergency clause' in its previous writings on the issue." App. 268.
That analysis is backwards: Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency. We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so. To the contrary, the Court has repeatedly cited Jacobson in abortion cases without once suggesting that abortion is the only right exempt from limitation during a public health emergency.
Free advice to the lawyers writing briefs in support of petitioners: DO NOT CITE JUDGE DENNIS'S ANALYSIS OF JACOBSON.