I happened to be browsing through RedState yesterday (I don’t go there much, and that trip did nothing to make me feel I was missing anything) and I came across what seems to me to be an embryonic conservative anti-vaxx talking point. Basically it’s: Hey everybody, did you know that the Supreme Court decision that allows vaccine mandates was later used to justify forced sterilization?
I won’t link to the post in question; why should we increase their linkage? If you want to you can probably search for it based on this post. Basically, the writer takes note of how the Supreme Court’s 1905 opinion in Jacobson v. Massachusetts, upholding compulsory vaccination, was cited as precedent a quarter-century later in Buck v. Bell, an infamous case where it upheld the mandatory sterilization of a young Virginia woman on the grounds that her family background had too many criminals and mentally ill or disabled members for society to take the chance on her procreating.
Obviously, the implication is that since Bell allowed for a horrible thing, Jacobson—and by extension all vaccination mandates—had some sort of latent original sin that means that perhaps it should be overturned (although the author doesn’t say this outright, and doesn't say why). I could just refute this with the general logic that it does not follow that a Supreme Court decision you think to be had or outright anticanonical taints any precedent it relies on or flows directly from … I mean, conservatives have in recent years been disliking a number of decisions allowing greater autonomy on the part of the administrative state, but while some of them have been going to the root of the matter and calling for Chevron v. Natural Resources Defense Council to be overturned, most of them still seem to think that case was well-intended and kind of like the way it keeps down the courts’ caseload.
But it helps to go into specifics. While the Bell does indeed cite Jacobson, and indeed only Jacobson, the logic linking the two cases is facile and, as we’ll see, the writer at RedState, while not the worst reader of old Supreme Court decisions, didn’t do all the research.
I. Jacobson v. Massachusetts
The facts of Jacobson are well-known by now: the plaintiff, a Swedish immigrant to Cambridge, refused to get a smallpox vaccination mandated by the city during an outbreak at the beginning of the 20th century due to bad memories of a childhood vaccination. After being fined $5 (about $150 in today’s money) he took his appeal all the way to the state’s Supreme Court, and after that, to Washington.
His argument would probably be right at home with today’s antivaxxers: he quoted, repeatedly and at length, from the preamble to the Constitution, and offered a whole bunch of affidavits and papers by anti-vaccine researchers and physicians questioning the efficacy of a vaccine that had been in existence for a century then, based on techniques developed in the mid-16th century.
Justice John Marshall Harlan (pictured, above), “The Great Dissenter” who had already accumulated the reputation that gave him that sobriquet in the Civil Rights Cases, Plessy, Berea College and is still so well-regarded that people have proposed naming the Supreme Court building after him (but I think Chinese Americans will have something to say about that), wrote for the seven-justice majority.
He wasn’t impressed. Right off the bat, he takes, well, the bat to all that Tea Party-esque waxing rhapsodic about the Preamble in words that, understated as they are, ring as loudly in today’s ears:
We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question ... is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.
I half expect him to have gone into why it doesn’t matter that the flag in the courtroom had gold fringies or not, but I guess Jacobson wasn’t forward-thinking enough to raise that argument. Or maybe he and his lawyers were smart enough not to.
Harlan then goes to re-establishing the legitimacy of the police power of the state (under which it may act to protect the citizenry’s health, safety and security, i.e. from things like war, disease, crime and your neighbor blasting his speakers out the window at 2 a.m.) and discussing how it operates and is constrained. The writer of the RedState piece is smart and/or informed enough to understand this … in fact, he implicitly accepts what most Constitutional scholars do, that Jacobson is considered more important for its role in developing the modern understanding of the police power as necessitating limits on personal freedom than it is for its impact on public-health programs as part of that police power.
Harlan then returns to Jacobson’s Constitutional claim. Did the mandatory vaccination infringe any his rights? The RedState writer quotes (as he should) this memorable passage from the opinion:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
More to the point, now as much as then, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members … It cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety.”
From the perspective of an American 120 years later living in a country coping with the first worldwide pandemic in a century, and the corresponding insane opposition to vaccine mandates, I particularly appreciate (as we all should) Justice Harlan’s take on Jacobson’s mountain of the equivalent of stuff he downloaded from the Internet the night before (although it probably actually looked more respectable at the time) offered as evidence. \
Basically, “So?”
Looking at the propositions embodied in the defendant's rejected offers of proof it is clear that they are more formidable by their number than by their inherent value. Those offers in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief and is maintained by high medical authority. We must assume that when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.
The writer at RedState seems to also acknowledge that this deference to a state legislature by the Supreme Court is … exactly the sort of thing conservatives always say they want. That they have been so ready to run to the courts at the first whiff of a mask mandate is to me further irrefutable evidence that the main reason they took that position in the first place was because of how they thought things would always turn out, not because of their undying admiration for federalism and the separation of powers as so exercised.
To support the majority’s position further, Harlan quoted at length from Matter of Viemeister v. White, a then-recent decision of the New York Court of Appeals (our state’s highest court), which similarly upheld a school-vaccination mandate in Brooklyn. Harlan seems to have found a lot in Judge Irving Vann’s opinion, and this passage is even more relevant today.
The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm with no good. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people as well as by most members of the medical profession. It has been general in our state and in most civilized nations for generations. It is generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law. Nearly every state of the Union has statutes to encourage or, directly or indirectly to require vaccination, and this is true of most nations of Europe. It is required in nearly all the armies and navies of the world.
Vann knew how to deal with conspiracy-theory insane troll logic, at least in a court of law:
A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts …
The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong and that science may yet show it to be wrong is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country where the government is by the people through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution and would sanction measures opposed to a republican form of government.
In closing, Harlan left no doubt as to how the majority saw Henning Jacobson:
[This is] the case of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.
There were two dissenting justices, Rufus Peckham and David Brewer, but they did not write opinions, conveniently making it easier to uphold Jacobson against future attempts to get it overruled (not that there have been any).
II. Buck v. Bell
Buck v. Bell is a sadder case. Eugenics had been brewing in the international intellectual pot since the 1880s, but only got to be really a thing in the years around World War I. In the 1920s eugenicist theories were at their high point, and influenced the passage of laws in the U.S. and elsewhere.
Most of these were related to immigration, but some went as far as allowing or mandating the sterilization of certain categories of people, usually those with mental health problems and disabilities. In 1924 the director of a Virginia institution that cared for “the feebleminded and epileptic”, himself an ardent eugenicist, decided to make a test case for the state’s newly passed law and petitioned to sterilize an 18-year-old girl there, Carrie Buck, born to a woman whom he claimed had the mental capacity of a child, to break the chain of (supposed) de-evolution (Mary Buck had reached sixth grade; she was alleged nonetheless to have inherited her mother’s disabilities)
The state board regulating the institution gave its permission. Buck’s legal guardian appealed the case into the state courts, which kept upholding the board, all the way to the state’s Supreme Court. So they petitioned for cert.
Buck’s main argument against the constitutionality of the sterilization statute was that, since it hadn’t been applied to every person it could be, it was selectively enforced and so its application to her violated the Equal Protection Clause of the 14th Amendment. This is a pretty steep hill to climb in almost any case regardless of the law you’re challenging, and so it shouldn’t come as too surprising that a Supreme Court composed of nine completely different justices (including its only Chief who had previously been President, William Howard Taft), held 8-1 for the state.
The justice who wrote for the Court was another remembered today for his eloquence, Oliver Wendell Holmes. While his pithiness and directness is present, including the decision’s most memorable line, it is not one of the cases he is remembered for, and shouldn’t be. For it shows just how thoroughly eugenics had become normalized and respectable at the time:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.
Yes. That is the only case cited in the entire opinion. It is a stark contrast with the forest of precedent Harlan planted throughout Jacobson. While it’s true that there wasn’t much precedent for bodily autonomy in the law at the time (Union Pacific Railway Co. v. Botsford notwithstanding; it would have been interesting if that case had been brought up at oral argument), one would at least expect some consideration of the specific issues of what the state sought to do to Carrie Buck and her interests. One gets the feeling that the Court had more or less decided this case as soon as it granted cert.
And Holmes, as the next paragraph makes clear, believed he was doing her favor, since after her forced tubal ligation she would be able to leave the institution and live an otherwise normal life outside of it. “So far as the operations enable those who otherwise must be kept confined to be returned to the world,” he wrote, “and thus open the asylum to others, the equality aimed at will be more nearly reached.”
The one dissenting justice, Pierce Butler, like his colleagues in Jacobson, declined to explain his opposition (Holmes supposedly observed in his diary that he felt Butler actually sympathized very much with the majority, but could not reconcile it with his Catholic faith, so dissenting without an opinion was his way of dealing with the situation. (Just as well, perhaps. Butler’s resolute opposition to civil rights do not make his opinions in cases on that subject from the era fun to read; I’m not sure I’m ready to read him in a case like this where I actually might want to agree with him).
The effect of Bell was not isolated. Much as Plessy’s green light to racial segregation had kicked off the rise of Jim Crow, after Bell eugenics became a growth industry, with both laws mandating sterilizations and those sterilizations themselves multiplying, in the U.S. and abroad. Popular media was touched by this, from classic science fiction stories like “The Marching Morons” (it is hard now to remember when that word had primarily clinical connotations and was not used purely as an insult) to Tomorrow’s Children, an anti-eugenics film in which you can see some of the prototypes for narratives of the modern anti-abortion movement (and which was banned in all but two states on its initial release, not so much for its politics (ostensibly) but for its frank depictions of alcoholism, genetic deformities and the sterilization process)).
III. And Korematsu ...
It’s not enough for the writer at RedState to use Bell to taint Jacobson. He draws his line of malign further a decade or so, to Korematsu v. United States! I suppose he just felt on better ground heading for a case more universally recognized as anticanonical. No, it wasn’t enough that mandatory vaccination led to mandatory sterilization, without it we would never have had the internment of Japanese Americans (Yup, it wasn’t like there was a war against Japan on that might’ve given people the idea to do that. It was just someone thinking, hey, since we can make people get vaccinations any time we damn well want, why don’t we just take a whole bunch of people of one particular race and seriously restrict their movements?). Never mind that Korematsu cites neither Jacobson nor Bell, nor mentions the police power (Or that there are more conservatives than you might think who don’t really have a problem with Korematsu, even if they dare not say so out loud).
IV. Do the research!
At the end, our RedStater tells us that to his knowledge neither Bell nor Korematsu has ever been overturned, also seeming to imply that the Nazis used the former as precedent (It was raised by the defense at Nuremberg, where it successfully embarrassed the American prosecutors, but I haven’t come across any evidence that it was actually used to justify some of the Nazi programs, which often went a good deal further than their counterparts over here by actually exterminating their subjects and not just sterilizing them).
Nice qualifier that. A little basic research would require modifying that claim. Yes, it is literally truthful, but very much misleading to say that, and I will assume the writer really didn’t finish his inquiry.
For one thing, almost everyone familiar with Bell knows that it didn’t even make it past the war. In 1942, while it was busy signing off on the internments, the Court heard Skinner v. Oklahoma, in which the petitioner, convicted of theft and two separate armed robberies, sought to block his mandated sterilization as a serial offender (Maybe I shouldn’t be surprised the RedState writer isn’t mentioning this case; most conservatives today would probably support sterilizing convicted criminals, even those with such a minor record as Skinner’s. I’m sure they would, were it their decision, deny a prison inmate the right to have his wife artificially inseminated with his sperm). He, too, challenged the law on equal-protection grounds, noting that it had no such requirement that men convicted of what we would today call white-collar crime like embezzlement and fraud, also felonies, get snipped. If the state’s goal was to reduce the spread of genes conferring a predisposition to criminality, why make that distinction? What rational basis was there for that? (Other than, perhaps, most of the state legislators who had passed the law identifying more with the sort of men who committed those crimes and more willing to believe that their criminality wasn’t encoded in their genes).
The Oklahoma Supreme Court narrowly ruled against him. The U.S. Supreme Court unanimously overturned the Oklahoma Supreme Court. Another legendary justice, William O. Douglas, wrote for the Court that, yes, there was really no good reason for the state to make that distinction. While not expressly overruling Bell, he distinguished the two cases by noting that at least in that case the point of the sterilization was to allow those so treated to enjoy the fuller freedoms of society, while in the instant case Skinner’s forced vasectomy would have been indisputably punitive and (at that time) irreversible no matter how much he might reform and mend his ways.
Chief Justice Harlan Fiske Stone concurred, but argued that the case was more about the denial of due process. In his concurrence, Justice Robert Jackson said the case offended both the Equal Protection Clause and the Due Process Clause to an extent that made it pointless for Douglas and Stone to disagree on which was worse.
All three opinions discussed Bell (though not Jacobson, casting doubt on the idea that the Skinner Court saw any link between those two cases, Holmes’ wayward citation aside). They agreed that Holmes had correctly held that an allegation of selective enforcement alone is usually not going to be enough to sustain an equal-protection claim but were mostly silent on the other aspects of Bell.
So Bell stood, but it was unclear how, exactly, it could continue to. Jackson’s concurrence ends with a hint that he would take a dim view of forced-sterilization laws as a whole if their constitutionality was before the Court. Stone avoided that question but for his part noted that the science was from clear on whether genetic traits believed to correlate with criminal predispositions “of any class of habitual offenders are universally or even generally inheritable.”
With these two skeptical notes, and the Court’s holding, the cloud of legal uncertainty that Bell had lifted again descended on the sterilization laws and programs. And it got dimmer after the war. If World War II accomplished one thing right away once it was over, it was to thoroughly discredit eugenics. All those rosy utopian visions of Shiny Happy People Holding Hands once scientists with compassion and vision figured everything out just couldn’t hold up against the grisly realities of Aktion T4 and the death camps. Sterilizations slowly declined to almost none by the early 1960s, and many of the laws that had authorized them were repealed in the 1980s. Bell is largely impracticable legally, and all that remains of it as citable (and cited) precedent is Holmes’ line that selective enforcement “is usually the last resort of constitutional arguments.” It has effectively been overturned, as anyone who had bothered to look up Skinner could easily conclude.
Korematsu was a harder nut to crack. Everyone (save more of the RedState readership than I think the writer realizes) has known it was a mistake and regretted it for generations, but the right set of circumstances for a case that would lead to it being overturned was … well, not exactly likely to recur anytime soon, and they were beyond the facilitation of a test case.
However, the writer could have been paying attention a few years ago when, in the midst of siding with the administration in Trump v. Hawaii, Chief Justice Roberts got so fed up with dissents likening the case to Korematsu that he just up and went and said:
[This] affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear— "has no place in law under the Constitution."
This has widely been seen as ending any possible value Korematsu has as legal precedent, even if it doesn’t come in the form of a full ruling rejecting it on a similar set of facts. You can’t otherwise get much better than the sitting Chief Justice saying that a precedent is bad law in a majority opinion.
The RedState writer also quotes at some length a description of the Cambridge police raiding flophouses and regularly using excessive force to ensure that uncooperative bums got their shots (the sort of thing that we have seen drive the typical RedState reader to the nearest closet or bathroom, pants down and one hand furiously pumping away, when is meted out today to anyone Black). While I don’t deny this was unjust and outrageous, I somehow don’t think most urban police forces of the time needed a vaccination drive as a go-ahead to treat the socially and economically marginal to their latest police brutality innovations.
As our understanding of our laws has become more humane in its regard for the procreative capacities of all, and our understanding of genetics and its complexities far more advanced, advanced so that we know there’s so much more that we didn’t know we didn’t know (and still is), it would be ridiculous to imagine that we could or would make the leap from our current vaccine mandates to forced sterilizations of those we might find undesirable.
And thus is another conservative talking point blunted ...