What Jacobson v. Massachusetts Actually Held About State Health Powers

A five-dollar fine. That is the penalty at issue in the case that has been cited, over more than a century, as the justification for orders that closed churches, capped worshippers and shuttered businesses. Five dollars is, give or take, the price of a sandwich. If you ever want to measure how far a precedent has traveled from its facts, start with the fine.

This post is about law and power, not about medicine. I make no claim about any vaccine, and nothing here is a medical opinion. The question is narrower and more important: what did the Supreme Court actually decide in Jacobson v. Massachusetts, 197 U.S. 11 (1905), and what did it not decide?

The facts

In 1902, smallpox was spreading in the Cambridge, Massachusetts area. The state had a statute, passed by the legislature, authorizing the board of health of a city or town to require the vaccination of its inhabitants whenever, in the board's opinion, it was necessary for the public health or safety. Cambridge's board of health adopted a regulation requiring the vaccination of all inhabitants who had not been vaccinated since a given period.

Henning Jacobson, a Swedish-born pastor living in Cambridge, refused. He was prosecuted. The statute provided a penalty of five dollars for a refusal, and nothing in it authorized the officers to restrain a person and vaccinate him by force. Jacobson was convicted, the Massachusetts Supreme Judicial Court upheld the conviction, and the case reached the United States Supreme Court. He argued that the law violated the Fourteenth Amendment's guarantee of liberty, and offered arguments about the dangers of the procedure and the invasion of his person.

Notice three facts, and keep them in mind through the rest of this post.

1. The law was a state statute, passed by an elected legislature, authorizing a local board.
2. The penalty was a fine, and the statute did not permit compulsion by force.
3. The challenger argued from the Fourteenth Amendment. No federal agency and no federal statute was involved.

The question

The question before the Court was whether a state's compulsory vaccination law, enforced through a small fine, violated the liberty protected by the Fourteenth Amendment. In plain terms: does a person have an absolute right to refuse a state-imposed health measure in the middle of an epidemic?

The holding

On February 20, 1905, the Court ruled against Jacobson, by a vote of seven to two. Justice John Marshall Harlan wrote the opinion. Justices David Brewer and Rufus Peckham dissented, without writing an opinion.

The holding, in a sentence, is this: a state may, under its police power, enact a reasonable compulsory vaccination law enforced by a modest penalty, and that law does not violate the Fourteenth Amendment.

Harlan's reasoning

Read the opinion, and the first thing you find is that Harlan is more careful than his admirers or critics tend to admit. Here are the main steps.

Step one: liberty is not absolute. Harlan wrote that the liberty secured by the Constitution does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint." That sentence is often quoted for the proposition that the state may do a lot. The sentence is true, and it is a statement that rights live inside a community that has to hold together, a point almost no one disputes.

Step two: the police power belongs to the states. The "police power" is the old name for a state's general authority to regulate for the health, safety and morals of its people. Harlan said that the police power of a state embraces reasonable regulations established directly by legislative enactment as will protect the public health and safety. Notice the phrase "directly by legislative enactment." The authority he is describing is that of an elected legislature, acting through a statute.

Step three: the courts defer, but they do not abdicate. The Court recognized that where there is a dispute among reasonable people about the effectiveness of a public-health measure, the legislature, not the court, resolves it. That is deference.

Step four: and here is the part that gets forgotten, the limits. Harlan was explicit that the power has boundaries. He said that if a statute purporting to protect the public health had no real or substantial relation to that object, or was, beyond all question, "a plain, palpable invasion of rights secured by the fundamental law," it would be the duty of the courts to say so. He further noted that a regulation could be applied so arbitrarily and oppressively that a court would have to intervene. He gave an example: a person for whom a measure would seriously endanger his health or probably cause death could not, consistent with the law's own reasonable construction, be subject to it, and a court would protect him.

So, put it in order. Jacobson held that a state legislature's authorization of a local health measure, with a small fine, was constitutional. It did so on the premise that the measure was reasonable, that it was tied to an existing epidemic, that it was enforced mildly, and that courts remain available to stop what is arbitrary, oppressive or without a real relation to its purpose.

A precedent that has been asked to carry this much weight should have been issued with a weight limit. That is not a blank check. A blank check does not come with a list of conditions printed on its face.

What Jacobson did not say

This is the part that the legal debates of recent years tended to skip. The opinion does not say, and could not have said, the following.

1. It says nothing about federal agencies. The case concerned a state's police power. The federal government has no general police power under the Constitution. It has the enumerated powers, set out in Article I, Section 8. The Tenth Amendment reserves the rest to the states or the people. Jacobson is about the state's authority, and it offers no support for the notion that a federal agency may do what a state legislature may do.
2. It says nothing about executive orders issued without a statute. The measure in Jacobson rested on a statute passed by a legislature. Whether an executive or an unelected official may issue sweeping orders without legislative authorization is a different question, answered by other cases and by separation-of-powers principles.
3. It does not authorize measures untethered to their purpose. The opinion's own test requires a real and substantial relation between the measure and the public-health object.
4. It does not address the First Amendment. In 1905 the Free Exercise Clause had not yet been applied to the states. The Supreme Court incorporated it against the states in Cantwell v. Connecticut in 1940. A claim about religious exercise against a state order was therefore not part of the case.
5. It does not provide a standard of review for modern, intrusive measures. The measure was a one-time act with a small penalty. A different measure, with a different burden, requires a different analysis.

How later courts used it

The case's afterlife is a mixed record, and a fair post has to say so.

For many years Jacobson was cited in cases about school vaccination requirements. In Zucht v. King in 1922, the Court upheld a municipal ordinance requiring vaccination as a condition of school attendance, citing Jacobson.

Precedents, like houseguests, tend to be invited for one reason and stay for another. Then came a use that should give any friend of liberty pause. In Buck v. Bell in 1927, Justice Oliver Wendell Holmes, writing for the Court, upheld a Virginia law permitting compulsory sterilization of people thought unfit to reproduce. Holmes wrote that the principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes, and he cited Jacobson. That decision is one of the most criticized in the Court's history. It shows what can happen when a precedent about a small fine is stretched into a principle that the state may do anything to the body that it deems beneficial to the public. The stretched reading takes the case away from its facts, and its facts are precisely what kept it narrow.

Through the middle decades of the twentieth century, the Court developed a more structured body of law about individual rights, including the tiers of scrutiny: strict scrutiny for fundamental rights, intermediate scrutiny for some classifications and a deferential rational-basis review for most economic and social legislation. The old Jacobson approach of asking whether a measure bears a real and substantial relation to its object looks similar to the lower tiers. But the existence of those tiers means that a modern court has more tools than Harlan did, and the question of which tier applies to an order that burdens a protected right is one that Jacobson does not answer.

The 2020 concurrence

The most important modern commentary came in November 2020. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court, in an unsigned order, blocked enforcement against houses of worship of a New York executive order that limited attendance at religious services in designated zones to a small number of people, while allowing a wide range of businesses deemed essential to operate with no comparable cap.

Justice Neil Gorsuch wrote a concurring opinion that directly addressed the claim that Jacobson settles the matter. His sentence has become famous: "Jacobson hardly supports cutting the Constitution loose during a pandemic." He pointed out that the old case involved a state law that let a person take the vaccine, pay a five-dollar fine or qualify for an exemption, which is a long way from a cap on worshippers. And he argued that even if judges may accept emergency restrictions on rights that some of them have found in the Constitution's penumbras, it does not follow that the textually explicit right to religious exercise should share that fate.

I am arguing law only. I do not need to claim anything about the public-health wisdom of the order, and I make no claim about any medical intervention. The legal point is that the order treated religious gatherings less favorably than comparable secular activity, and the free exercise principle does not permit that without strong justification. The Court's order and Gorsuch's concurrence applied that point.

For more on that line of decisions, see casinos open, churches capped, and the pandemic rulings that restored worship.

The steelman, and the answer

Let me state the best case for the broad reading of Jacobson, in words its defenders would use.

A public-health emergency is exactly when the government must act quickly and decisively. Epidemics do not wait for litigation. Courts lack the expertise to second-guess health officials, and the cost of error is measured in lives. A rule requiring close judicial scrutiny of every emergency order would paralyze a state's ability to protect its people. Jacobson reflects a sound judgment that in these circumstances courts should defer to the political branches.

That is a serious argument, and I think the first half is right. Emergencies do call for speed. Courts are not epidemiologists. A reasonable measure, tied to a real threat, adopted by an accountable body, deserves respect.

But here is the answer, in four numbered points.

1. Deference to a legislature is not deference to an official. Jacobson involved a statute. The deference was to the people's representatives. A rule that gives the same deference to a single executive or an agency inverts the structure. Federalist No. 47 warns that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands" may justly be pronounced the very definition of tyranny, and a sustained emergency order issued, enforced and interpreted by the same office comes uncomfortably close.
2. The deference was conditioned. The very opinion that grants deference lists its limits: real and substantial relation, no plain and palpable invasion of fundamental rights, no arbitrary or oppressive application. A court that applies Jacobson but ignores its conditions is not applying Jacobson.
3. The measure was mild. A five-dollar fine is not a closure order, and a one-time requirement is not a months-long prohibition. The weight of the burden matters to the analysis, and a precedent about a light burden does not authorize a heavy one.
4. An emergency does not suspend the structure. The Constitution was written by people who had lived through war, plague and rebellion. It contains no emergency exception to the Bill of Rights. A power that is justified only by an emergency should come with a clock, a legislative check and a standard for ending it.

If the ordinary workings of separation of powers interest you, Federalist 47 Defines Tyranny as All Powers Gathered Into the Same Hands reads that passage in full, and Federalism Lets Fifty States Experiment, and the Constitution Planned It explains why a state's police power and a federal agency's authority are different things.

Measure it against the Constitution

The structure of the Constitution gives the answer to the question of who may do what. The states hold the general police power. The federal government holds only the powers delegated to it. Article I, Section 1 provides that "All legislative Powers herein granted shall be vested in a Congress of the United States." If a federal agency claims authority over a health matter, it must find that authority in a statute that Congress wrote, and the statute must be clear enough for a court to enforce.

That is why Jacobson is such a poor foundation for sweeping federal action. It is a state-power case. The right question for any federal order is not "does Jacobson allow it?" but "which statute authorizes it, and does the text say what the agency says it says?" I take up one example of that question in When a Health Agency Decided It Could Freeze Every Eviction in America.

What a citizen should take from it

A few practical lessons follow. First, when a politician or a commentator says that Jacobson settles a question about a health order, ask three things: who issued the order, what did it burden, and what statute authorized it? Second, read the opinion. It is short, it is in the public record and it says less than its reputation. Third, remember that a rule justified by emergency should expire with the emergency. The people who are comfortable with a power when their side holds it should ask whether they would be comfortable when the other side does.

The case in brief

1. Jacobson v. Massachusetts (1905) upheld a state statute authorizing a local board's smallpox vaccination requirement, enforced by a five-dollar fine, by a vote of seven to two, in an opinion by Justice Harlan.
2. The opinion rests on the state police power and on legislative authorization, and it states limits: a real and substantial relation to the public health, no plain and palpable invasion of fundamental rights, and no arbitrary or oppressive application.
3. It says nothing about federal agencies, executive orders without a statute, or the First Amendment, and its facts, a mild penalty and a one-time requirement, are what kept it narrow.
4. Later courts stretched it, as in Buck v. Bell (1927), and Justice Gorsuch's 2020 concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo pushed back on the stretch.
5. Deference to a legislature's reasonable judgment is not deference to every order an official issues in an emergency.

What you can do: read Jacobson v. Massachusetts, 197 U.S. 11, on the Supreme Court's website or a free case-law library, and underline every sentence that limits the state's power.