The Irrepressible Myth of Jacobson v. Massachusetts

107 Pages Posted: 23 Sep 2021 Last revised: 24 Sep 2021

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: August 17, 2021

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.

Keywords: Constitutional Law, Jacobson v. Massachusetts, Buck v. Bell, Sherbert v. Verner, Roe v. Wade, Roman Catholic Diocese of Brooklyn v. Cuomo

Suggested Citation

Blackman, Josh, The Irrepressible Myth of Jacobson v. Massachusetts (August 17, 2021). Buffalo Law Review Vol. 70, No. __, Available at SSRN: https://ssrn.com/abstract=3906452

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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