saw it as irrelevant. So Jacobson then attempted to submit instructions to the jury to decide his innocence on legal grounds but all three instructions were rejected by the judge so the jury never got to rule on them. The Supreme Court doesn’t give a reason for rejection. However, the claims are interesting: 1) “That § 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights secured to the defendant by the preamble to the Constitution of the United States, and tended to subvert and defeat the purposes of the Constitution as declared in its preamble;” The preamble of the Constitution is not considered to be legally binding. It’s considered to be a philosophical introduction to the Constitution. Also, I’ll add that the Declaration of Independence is not a legally binding document either to hold the government legally accountable against the citizens of the U.S. as it was intended to be a declaration against England. It isn’t legally enforceable now. Discussion Question: Should the Preamble of the Constitution carry any legal weight? Is it specific enough to be able to properly guide the branches of the government? Should it have more or less power than the 9th Amendment? 2)

Session 18 – Thursday, April 15 Topic: State Police Power vs. Individual Rights I want to discuss state police power more and illustrate how their limits are broader than the Lochner case showed due to its specific focus on citizen liberty. During Session 17 we talked about the concept of state police power. Although it was introduced to us in the case of Lochner v. New York, it was not established there. It is actually one of the principles that the United States adopted from English common law. Despite the fact we rebelled against the rule of England, we still adopted a lot of the judge made law and traditions that dated back centuries. There are a number of cases in the United States that set up the concept of state police power. Justice Marshall alludes to it in Gibbons v. Ogden in 1824 and mentions it outright in a case called Brown v. Maryland in 1827. “the power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains and ought to remain with the states.” A case that stands out in its treatment is the 1851 case of Massachusetts v. Alger. “The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinance, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.” The Lochner case referred to the case of Holden v. Hardy – that is a case where the Supreme Court upheld a Utah law which limited the maximum hours for people who work in mines. It was seen as a legitimate exercise of state police power and was able to interfere with 14th Amendment rights of liberty of contract. Of course, Peckham distinguished it from the Lochner case saying how miners have significantly more dangerous careers than bakers. But the point here is that laws legitimately seen as state police powers were given a lot of deference in the courts before the issues in the Lochner and Jacobson cases arose and were decided. From a Constitutional perspective, State Police power has been found by the courts to be derived from the 10th Amendment as a result of its concept belonging to the “The powers not delegated to the United States by the Constitution” clause. This is the text of the 10th Amendment as we discussed a few weeks ago: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The question then becomes when can state police power out-prioritize the 14th Amendment or other rights, liberties, or even powers granted in the Constitution? Let’s ignore Peckham’s controversial decision as to whether the Bakeshop Act should have counted as state police powers. Instead, look to what Peckham’s overall view of state police powers are compared to the 14th Amendment: “The State therefore has power to prevent the individual from making certain kinds of contracts, and, in regard to them, the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment.” By saying “legitimate” exercise, Peckham is saying that not all powers claimed as state police powers can override Constitutional law, but some legitimately can. Peckham’s noted rule defining a fair and reasonable exercise of state police power relates to “the safety, health, morals and general welfare of the public.” Satisfying that rule reaches the maximum limit of state police power. Any state law that does not relate to those topics cannot interfere with citizen liberty. On other hand, the states can use a law that does relate to those topics to interfere with citizen liberty. As a result, you can see “state police power” as an exception to a state’s legal duty to uphold our Constitutional rights and liberties. On the other hand, you can see a state regulating some behavior with the very intention to secure our liberty to perform other life-sustaining behaviors. As we talked about on 10/1, your opinions may vary as to whether that limitation gives the state government the right amount of power vs. our liberties. However, there is another issue to keep in mind when considering that topic: Isn’t this “exception from our Constitution rights” broad when remembering the fact that state police power is derived from the 10th Amendment? Is it possible that the 10th Amendment doesn’t authorize the limits of state police power? Judicial recognition of laws that count as state police power (which flows from the 10th Amendment) allows that state police power to potentially override two things: 1) The Constitutional rights of the citizens – like in Lochner. 2) The Constitutional powers of the national government. The “liberty of contract” in Lochner, which is derived from the “liberty” in the due process clause of the 14th Amendment, clearly applies to citizens. While it is controversial that state police power can interfere with citizen liberties, it is one of the issues in Lochner that Peckham clearly addresses and resolves. As a result, we know that State Police Power can override citizen’s Constitutional rights. But is Lochner related to the 10th Amendment issue of states interfering with the power of the national government? It isn’t apparent but there is a connection. The 14th Amendment goes beyond the due process clause and equal protection clause. It also has a clause at the end of it which relates to government power: https://www.ourdocuments.gov/doc.php?flash=false&doc=43&page=transcript “Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” This provides us with two crucial follow-up questions: 1) What happens when a law that counts as state police power clashes with Congressional law created under the Section 5 of the 14th Amendment? Factually, the Lochner case did not involve any Congressional law passed to enforce liberty of contract in the 14th Amendment. This wasn’t at issue. However, what if Congress had created a law to enforce “liberty” in liberty of contract? Would this be a violation of the Supremacy Clause? Supremacy Clause – Article VI, Clause 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Discussion Question: Should Congressional law passed under Section 5 of the 14th Amendment supporting a citizen’s liberty of contract be defeated by a state law challenging a right to contract if that state law is seen as valid police power? In other words, should the state be granted a valid exception to the Supremacy Clause of the Constitution when State Police Power is invoked to create law that involves “the safety, health, morals and general welfare of the public?” Should Congressional legislation be impeded by State Police Power legislation? Discussion Question: Does it matter to you that “liberty of contract” is not a specific liberty enumerated in the 14th Amendment or that “state police power” is not a power expressly granted to the states in the 10th Amendment? 2) What happens when a state law valid as state police power clashes with a Constitutional grant of authority to Congress in Article I? The Due Process clause isn’t the only place one can look to find a protection for liberty of contract. Even though Peckham’s majority decision does not discuss this as part of his rationale, the Constitution expressly gives some protection of Contracts earlier on in the Article section in the Contract clause. The contract clause was in the original Constitution in 1789, predating the 14th Amendment which was only ratified in 1868. “Article 1, Section 10, clause 1: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” If you parse the relevant part of each clause to make sense of the structure: “No state shall make any law impairing the obligation of contracts.” That is a grant of authority to Congress to prevent the states from doing certain things that are specifically reserved for Congress to regulate. Lochner’s lawyer was using the 14th Amendment to attack the Bakeshop law and so it was proper for the court to limit its argument to that Amendment. The Contract clause can be read as an enumerated power granted to Congress to protect our liberty of contract from being interfered with by the states. It is saying that the states are not allowed to create a law which interferes with the requirement for private parties to complete the terms of their contracts. Congress has the authority to prevent states from passing laws that impair contracts. In a case called Manigault v. Springs – which also occurred in 1905 along with Lochner and Jacobson (busy year!), the Supreme Court said that the Contract Clause can not interfere with valid state police power to regulate contracts. “It is the settled law of this court that the interdiction of statutes impairing the obligation of constracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people, and is paramount to any rights under contracts between individuals.” If that precedent continues to hold, then we have two potential conclusions: 1) Any Congressional law protecting liberty of contracts of citizens against the states would have both Article 1 and 14th Amendment legitimacy. 2) Congress has an enumerated power in Article 1 to protect liberty of contracts against state laws that interfere with contracts being fulfilled. Therefore, state police power in some instances can violate the Supremacy Clause despite being held as Constitutional by the Supreme Court. There is a lot of discussion to be had about this topic so feel free to address any of these questions or any combination of these questions. Discussion Question: Should state police power to specifically regulate liberty of contract be seen as unconstitutional under any of the two potential conclusions? Discussion Question: Should state police power itself be questioned as a potential violation of the Supremacy clause due to its potential to disrupt certain powers of the national government and not just the rights or liberties of citizens? Discussion Question: Does the 10th Amendment limit state police power from interfering with any Congressional power? Does it matter if it’s an enumerated power like Article 1’s express grant of power to Congress to stop states from interfering with contracts OR if it’s Section 5 of the 14th Amendment which requires Congress to substitute their own judgement as to what counts as “life, liberty, or property” under due process? State police power itself is implied. Discussion Question: Should a Court look to other Constitutional factors when deciding whether a law claimed under state police power is legitimate? Discussion Question: Should Justice Peckham have done more than just consider whether the Bakeshop Act counts as state police power? Should he have also considered whether state police power was Constitutional as a potential violation of the Supremacy Clause, Article 1, and Section 5 of the 14th Amendment? Reading Assignment to be completed before Session 19: – Jacobson v. Massachusetts – https://www.law.cornell.edu/supremecourt/text/197/11 – Read Session 19 notes. Session 19 – Tuesday, April 20 Topic: – Individual Rights vs. Public Health – Part 1 Jacobson v. Massachusetts Today we will discuss the background, facts, issues, rules, analyses, and conclusions. On Thursday we will talk about the long-term effects and the potential to use Jacobson to apply to current and future COVID-19 rules. This 1905 Supreme Court case involved the state legislature of Massachusetts passing a law requiring that their citizens get vaccinations against smallpox. The law says: “The Revised Laws of that commonwealth, chap. 75, § 137, provide that ‘the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof, and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit $5.’ “An exception is made in favor of ‘children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination.’ § 139.” Rejoice as this is one of the easiest and clearest health-related laws that you’ll ever read. But I’m still going to break it up into smaller segments to analyze. The legislation authorized Boards of Health for each city of MA to enforce this law if that city felt it was necessary. However, this wasn’t a blanket requirement for everyone in the state to get vaccinated. Rather, the law delegated both authority and discretion (power, not duty) to the Boards of Health of each city to determine if vaccination was necessary for the public health and safety of their community. Keep in mind that the penalty here wasn’t a forced vaccination against their will. It was a fine of $5. The vaccinations themselves were free if people agreed to them. However, if the city decided an adult needed one and they refused, they were fined $5. On a quick internet search, $5 in 1905 is about $150 today. If there is someone claiming a child can’t get vaccinated for medical reasons, they can decline as long as they have a certificate signed by a doctor. No such exception existed for an adult though and that is an issue Justice Harlan addresses later. In 1902 the Board of Health for the city of Cambridge, Massachusetts decided that vaccinations were necessary for their citizens. They adopted a regulation implementing the MA state requirement and saying: ‘Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.’ Henning Jacobson was a Pastor living in Cambridge. He had immigrated from Sweden which had a national mandatory vaccination against smallpox. He refused to get the vaccine claiming that he and various members of his family had bad reactions to it when they were younger. He was fined the $5 for refusing. “the defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others.” The initial complaint at the first court of Massachusetts against Jacobson was that: “the defendant, being over twenty-one years of age and not under guardianship, refused and neglected to comply with such requirement. All Massachusetts did was point to the MA law and the Cambridge Board of Health regulations then show factual evidence that Jacobson refused vaccination after the state offered it to him and warned him about the consequences. Jacobson attempted to submit proof but the judge saw it as irrelevant. So Jacobson then attempted to submit instructions to the jury to decide his innocence on legal grounds but all three instructions were rejected by the judge so the jury never got to rule on them. The Supreme Court doesn’t give a reason for rejection. However, the claims are interesting: 1) “That § 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights secured to the defendant by the preamble to the Constitution of the United States, and tended to subvert and defeat the purposes of the Constitution as declared in its preamble;” The preamble of the Constitution is not considered to be legally binding. It’s considered to be a philosophical introduction to the Constitution. Also, I’ll add that the Declaration of Independence is not a legally binding document either to hold the government legally accountable against the citizens of the U.S. as it was intended to be a declaration against England. It isn’t legally enforceable now. Discussion Question: Should the Preamble of the Constitution carry any legal weight? Is it specific enough to be able to properly guide the branches of the government? Should it have more or less power than the 9th Amendment? 2) That the section referred to was in derogation of the rights secured to the defendant by the 14th Amendment of the Constitution of the United States, and especially of the clauses of that amendment providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and This is at least a more specific claim by pointing to a particular section of the Constitution. This would have been even stronger had Jacobson narrowed his complaint to the due process and equal protection clauses. To his defense, the Judiciary has evolved its interpretation and application of the 14th Amendment a lot over the past century. However, it’s been the Appellate courts (especially the Supreme Court) that have done that. Having a trial judge re-interpret the 14th Amendment by accepting jury instructions was a very low probability claim. 3) That said section was opposed to the spirit of the Constitution. This very general complaint was similar in nature to the slightly more specific claim in instruction 1 about the Preamble. An instruction like this will almost never be accepted by a judge on its own or in part with instruction 1. If you take POL 235, you’ll see how people arguing general principles of “the purpose of the Constitution” tends to be a weak argument in courts. As a result of Jacobson’s instructions being refused by the Judge, the case went to the jury based on the simple factual question of whether Jacobson violated the Cambridge regulation and Massachusetts law. They decided that he was guilty beyond a reasonable doubt. That means this was a criminal case, not a civil one. Discussion Question: Should a mandatory vaccination law be under criminal law or civil law? The penalties for criminal law are a lot higher than civil law. After being found guilty, “he was sentenced by the court to pay …
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