The Volokh Conspiracy

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Final Version of The Irrepressible Myth of Jacobson v. Massachusetts Published

As the pandemic (hopefully) draws to a close, the validity of vaccine mandates and other public health measures remain.


The Buffalo Law Review has published the final version of my article The Irrepressible Myth of Jacobson v. Massachusetts. This article began during the summer of 2020, in the age of South Bay. It was revised after Roman Catholic Diocese and Tandom v. Newsom. And it was updated when federal and state vaccination mandate cases rocketed through the courts. Now, as the pandemic (hopefully) draws to a close, the validity of vaccine mandates and other public health measures remain.

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.

I hope this 140-page article remains a useful reference for some future debate.