Pox (51 page)

The Court's first opportunity to consider the Fourteenth Amendment involved a public health law. In 1873, delivering the majority opinion in the
Slaughter-House Cases
, Justice Samuel F. Miller announced that the police power had survived the war intact. The decision affirmed a Louisiana statute that had incorporated a massive slaughterhouse, located downriver from New Orleans, and forbade the slaughtering of animals elsewhere in the city. The law aimed to protect the public health by containing a noxious trade. But the law's monopoly provision proved controversial. The plaintiffs, a group of white butchers, charged that the law violated their new rights under the first two Reconstruction amendments. Justice Miller made quick work of the butchers' Thirteenth Amendment claim; the law, he said, did not create a system of involuntary servitude.
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The Fourteenth Amendment claims could not be so easily dismissed. The butchers grounded their claims in the amendment's crucial first section, which had established a framework of new constitutional restraints on state power. The passage forbade any state to “abridge the privileges or immunities of citizens of the United States”; to “deprive any person of life, liberty, or property, without due process of law”; or to deny to any person the “equal protection of the laws.”
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But Justice Miller cautioned the American people that the Fourteenth Amendment had not turned the Court into “a perpetual censor” upon the states. The equal protection clause targeted only state action that discriminated against African Americans; Miller said the Court “doubt[ed] very much” whether any action not directed against “Negroes as a class . . . would ever be held to come within the purview of this provision.” The due process clause gave the federal government power to prevent the states from violating the procedural rights already protected from federal intrusion by the Fifth Amendment. Miller's opinion read the “privileges or immunities” clause narrowly. That phrase, he said, referred to a limited array of long-standing rights, already protected by federal law, such as the right of all citizens to come to the seat of the national government; it did not apply the Bill of Rights to the states. To uphold the butchers' claims, Miller concluded, would effect a great “departure from the structure and spirit of our institutions.” It would “fetter and degrade the State governments” by subjecting them to federal oversight “in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”
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If the majority's astonishingly narrow reading of the Fourteenth Amendment defended the pre–Civil War status quo, the dissenting opinions written by Justice Stephen Field and Justice Joseph Bradley mapped out a new direction in American constitutional jurisprudence. Field and Bradley took aim at the state-created monopoly as a violation of fundamental economic rights. As Field put it, under the “pretense” of a sanitary regulation, the legislature had unjustly invaded the butchers' “right to pursue a lawful and necessary calling”—a liberty and property right protected from state interference by the due process clause. During the next thirty years, the Field and Bradley dissents—and particularly their close identification of “due process” with economic liberty—would become key weapons in the constitutional attack on state social legislation.
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Industrialization had a greater immediate impact upon the police power and its constitutional status than did the Civil War. The police power exploded in the postwar decades, as organized labor and social reformers pushed state legislatures to regulate some of the worst human consequences of America's dramatic and often violent transformation into an urban-industrial society. “The law of the police power is practically a growth of the last thirty or forty years,” the progressive University of Chicago legal scholar Ernst Freund observed in his authoritative 1904 treatise
The Police Power
, “and much of it remains unsettled.” Freund's tome covered everything from the control of monopolies to the suppression of labor strikes. The field of public health and safety alone comprised an extraordinary range of government activities, many of them new: medical inspection of immigrants at the nation's ports, factory regulations in the industrial heartland, tenement laws and pure milk standards in the cities. Much of the social legislation supported by labor-friendly progressive reformers was justified by state lawmakers on the grounds that it promoted the public health—a claim that made many such laws vulnerable to constitutional challenge when the connection between the state action and the health of the public was at all controversial or indirect.
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As the reach of the police power grew, so did the number of constitutional challenges to it. During the 1880s and '90s, plaintiffs, lawyers, treatise writers, and, increasingly, state supreme court judges emphasized the supposedly timeless “constitutional limitations” on the police power. Traces of these arguments could be seen in the prewar period (almost invariably on the losing side of cases), but they were largely a product of the late nineteenth-century struggle over the political economy of industrialism. Building upon the foundation laid by Justices Field and Bradley in their
Slaughter-House
dissents, critics of regulation breathed a new meaning into the due process clauses of the state and federal constitutions. Those clauses—forbidding government to deprive a person of life, liberty, or property
without
due process of law—had their origin in the ancient English Magna Carta, and they had long been understood by American courts as guaranteeing good common law procedure. The passage of reasonable legislation, its enforcement by duly constituted public officers, the right of a defendant to a fair trial—that was the essence of due process. The police power was not at odds with due process, as pre–Civil War judges like Lemuel Shaw understood it. In a fundamental respect, the police power
was
due process. In late nineteenth-century America, the due process clauses were taking on a broader meaning—as critics of government regulation used them to define the substance of the life, liberty, and property rights that could not be invaded, under almost any circumstances, by the state.
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Judges did not simply upend a century of jurisprudence to clear the way for a business-friendly laissez-faire constitutionalism. But dozens of hard-fought labor laws, whether a New York ban on tenement sweatshops or an Illinois eight-hour law for female factory workers, met an untimely death in a state supreme court for interfering with property rights or a newly minted “liberty of contract.” By the turn of the century, conservative treatise writers such as Christopher G. Tiedeman had helped convince many judges that the police power was an almost unnatural force, best kept under close judicial control. “The unwritten law of the country is in the main against the exercise of police power,” Tiedeman claimed.
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By the late 1890s, having largely repudiated the civil rights of African Americans, the U.S. Supreme Court was reading broad economic liberties into the Constitution via the Fourteenth Amendment's due process clause. Several key opinions were written by a newcomer to the Court, Justice Rufus Peckham. In
Allgeyer v. Louisiana
(1897), the Court invalidated a Louisiana statute regulating out-of-state insurance companies that did business in the state. In his opinion for the Court, Peckham imported the controversial new doctrine of “liberty of contract” into the Constitution:

By itself,
Allgeyer
did not spark a revolution in jurisprudence. During the next several years, the Court upheld a good deal of social legislation, including a Colorado law (upheld over the dissents of Justice Peckham and Justice David Brewer) that forbade the employment of workers in mines for more than eight hours per day. But Peckham's expansive vision of economic liberty foretold the Court's increasing willingness to assume the very role that Justice Miller had warned against in
Slaughter-House
: a “perpetual censor” on state legislation that interfered with individual liberty.
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At the turn of the century, the rising generation of progressive intellectuals and activists regarded such talk of a constitutionally protected sphere of individual liberty with great skepticism. The United States had become a “modern,” urban-industrial society, they observed. The emergence of a national economy—bound by railroads, built by corporate might and wage labor, and giving rise to a new density of urban life—fostered a new era of human association and social responsibility. Leading progressives from Jane Addams of Chicago to Louis Brandeis of Boston valued social interdependence over personal autonomy. The legal scholar Roscoe Pound and the philosopher John Dewey argued that individual rights existed not for themselves but because they served important social interests. Under the press of urban-industrial social conditions, the progressives argued, “real liberty” meant more than freedom from government.
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Outlook
magazine, a leading organ of progressive opinion, expressed the position well. “In our time the man of progressive temperament is an advocate of organization, the man of conservative temper is an individualist,” the magazine said. “Real liberty for the laborer requires labor organization; real liberty of travel requires government control of the instruments of travel; real liberty in food, clothing, and home requires law to guard against disease and death, threatened by conditions of modern society; real liberty to speak and teach effectively requires organization, educational and religious.” In a time when the crowded conditions of everyday urban life evoked the inescapable social connectedness of an epidemic, progressives took up the germ theory as a powerful political metaphor. From the cities to the statehouses to Washington, the reformers decried prostitution, sweatshops, and poverty as “social ills.” A stronger state, they said, held the “cure.”
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With good reason, progressives condemned the judicial language of individual liberty as old-fashioned, formalistic, and fake—thin cover for the presumed laissez-faire prejudices of the judges themselves. The progressives' charges of judicial “usurpation” centered on the courts' invalidation of labor legislation and other forms of economic regulation. But there was another front in the era's great struggle over the police power.
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At the turn of the century, ordinary Americans were just beginning to turn to the law to challenge the increasing reach of administrative power into areas of life to which we now attach the most fundamental of civil liberties: freedom of speech and belief, parental rights, and the right to bodily integrity. No public policy crystallized those inchoate concerns more powerfully than did compulsory vaccination. In the name of public health and safety, Freund acknowledged, the modern state had been “readily conceded more incisive powers than despotic governments would have dared to claim in former times.”
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Critics of the burgeoning interventionist state agreed. St. Louis's
Central Law Journal
, a leading voice of conservative legal opinion, condemned compulsory vaccination as “one of the most serious and unwarrantable encroachments upon the personal liberty of the citizen that has been committed in recent years under the guise of the police power.”
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A
s Bancroft, Pickering, and Ballard researched the state of the art of police power jurisprudence for their briefs, they naturally paid particular attention to the recent proliferation of state court cases challenging compulsory vaccination. Remarkably, the legal issues involved were still novel. Vaccination laws had been on the books in Massachusetts and other states for decades. But the first legal challenge had not reached a state supreme court until 1890—at the very moment police power cases began to stream into the courts. Vaccination litigation escalated dramatically as smallpox spread at the turn of the century. The law remained unsettled. The Supreme Judicial Court had the opportunity to bring some muchneeded clarity to the subject.

So far, the American vaccination cases had taken several distinct forms. In the most common type, parents asked courts to order local school boards or principals to admit their “scarless” children. Unsurprisingly, in a legal culture that privileged men, most of the parents named in these cases were fathers. Some, like George R. Mathews of Kalamazoo, Michigan, were Christian Scientists, who opposed compulsory vaccination as an infringement of their “religious belief and scruples”; others, such as stenographer Frank D. Blue of Terre Haute, Indiana, were members of antivaccination societies; and others followed Michael Breen, a farmer from Lawrence County, Illinois, who demanded his rights as “a resident and taxpayer.” In another type of case, public schoolteachers, including women like Mary Helen Lyndall of the Philadelphia Girls' High School, sued for the right to enter their workplaces unvaccinated. A third class of litigants—including the North Carolina merchant W. E. Hay and a Georgia factory worker named Morris—challenged their treatment under general vaccination orders, arguing that compulsory vaccination was a form of bodily assault.
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