The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am happy to share my long-awaited article, The Irrepressible Myth of Jacobson v. Massachusetts. Here is the abstract:
During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan's decision was very narrow. It upheld the state's power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels.
The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson's limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court's modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice Roberts's "superprecedent" suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal that escape hatch
This article, written in the midst of the pandemic, will revisit, repudiate, and replace the irrepressible myth of Jacobson v. Massachusetts.
This article builds on two other pandemic-related pieces I wrote: The "Essential" Free Exercise Clause (Harvard Journal of Law and Public Policy) and The "Essential" Second Amendment (Texas Review of Law & Politics). The Jacobson article will, I hope, complete the COVID-19 trilogy. I did not plan on writing any of these articles in February 2020, but, as usual, my research agenda spins as the world turns.
Please email me if you have any comments or feedback on the draft. I always benefit from VC readers.