For a century, Jacobson v. Massachusetts was largely an obscure precedent. Yet, in a quartet of landmark cases—Buck v. Bell, Sherbert v. Verner, Roe v. Wade, and Roman Catholic Diocese of Brooklyn v. Cuomo—Justices invoked Jacobson. These simple citations elevated a narrow Lochner-era precedent into a complex, four-leveled myth.
First, under Jacobson, the federal government could forcibly sterilize people to promote the common good. Second and third, Jacobson provides an escape hatch from the tiers of scrutiny; the government has emergency powers to abridge enumerated and unenumerated rights. Fourth, during public health crises, courts must provide across-the-board deference to the government. Jacobson said nothing at all about these four principle. But Jacobson had been retconned to support each myth. During the COVID-19 pandemic, courts reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom. Yet, I suspect these cases would have come out in the exact same fashion even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in times of crisis.
Justice Gorsuch launched a fusillade at those judges who relied on Jacobson to defer to COVID measures. He asked, “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”
Putting aside the Chief Justice’s South Bay concurrence, Gorsuch could “only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis.” Justice Gorsuch concluded that “things never go well” when judges “shelter in place when the Constitution is under attack.” He added, “Jacobson hardly supports cutting the Constitution loose during a pandemic.”
Jacobson proved to be a useful prop for judges who otherwise sought to exercise judicial minimalism. Its use of terms such a deference, the common good and fundamental rights and its historical origins as a case that arose during a virus outbreak was the ideal case through which judges could refract their own passive virtue was reason enough to waste no time and exercise no caution to elevate this case to the apotheosis of constitutional law.
One way in which this case has been useful is in the way it has shown the most prominent divide in our judicial system is not so much between liberals and conservatives as much as it is a divide between authoritarian jurists and libertarian jurists. Some jurists looked at this never-ending and ever-changing series of restrictions as arbitrary and capricious executive lawmaking. While other jurists welcomed all efforts from the state to do something-anything-to fight the coronavirus. The actual holding in Jacobson had virtually no impact on how judges viewed its proper interpretation and construction. Those inclined toward restraint found Jacobson to be the rubberstamp, authorizing ever manner of state action that they would have dimply found in some other irrelevant provision of law, had Jacobson not rose out the ashes of the Locherian period where such a case would have had to come from since you find little to nothing in the time before and after this era to justify similar curtailment of individual liberty and such a low valuation of the most fundamental of our liberties—that of bodily autonomy.
Conclusion
For a century, Jacobson v. Massachusetts was largely an obscure precedent. Yet, in a quartet of landmark cases—Buck v. Bell, Sherbert v. Verner, Roe v. Wade, and Roman Catholic Diocese of Brooklyn v. Cuomo—Justices invoked Jacobson. These simple citations elevated a narrow Lochner-era precedent into a complex, four-leveled myth.
First, under Jacobson, the federal government could forcibly sterilize people to promote the common good. Second and third, Jacobson provides an escape hatch from the tiers of scrutiny; the government has emergency powers to abridge enumerated and unenumerated rights. Fourth, during public health crises, courts must provide across-the-board deference to the government. Jacobson said nothing at all about these four principle. But Jacobson had been retconned to support each myth. During the COVID-19 pandemic, courts reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom. Yet, I suspect these cases would have come out in the exact same fashion even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in times of crisis.
Justice Gorsuch launched a fusillade at those judges who relied on Jacobson to defer to COVID measures. He asked, “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”
Putting aside the Chief Justice’s South Bay concurrence, Gorsuch could “only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis.” Justice Gorsuch concluded that “things never go well” when judges “shelter in place when the Constitution is under attack.” He added, “Jacobson hardly supports cutting the Constitution loose during a pandemic.”
Jacobson proved to be a useful prop for judges who otherwise sought to exercise judicial minimalism. Its use of terms such a deference, the common good and fundamental rights and its historical origins as a case that arose during a virus outbreak was the ideal case through which judges could refract their own passive virtue was reason enough to waste no time and exercise no caution to elevate this case to the apotheosis of constitutional law.
One way in which this case has been useful is in the way it has shown the most prominent divide in our judicial system is not so much between liberals and conservatives as much as it is a divide between authoritarian jurists and libertarian jurists. Some jurists looked at this never-ending and ever-changing series of restrictions as arbitrary and capricious executive lawmaking. While other jurists welcomed all efforts from the state to do something-anything-to fight the coronavirus. The actual holding in Jacobson had virtually no impact on how judges viewed its proper interpretation and construction. Those inclined toward restraint found Jacobson to be the rubberstamp, authorizing ever manner of state action that they would have dimply found in some other irrelevant provision of law, had Jacobson not rose out the ashes of the Locherian period where such a case would have had to come from since you find little to nothing in the time before and after this era to justify similar curtailment of individual liberty and such a low valuation of the most fundamental of our liberties—that of bodily autonomy.