The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts

32 Pages Posted: 29 Jun 2020 Last revised: 29 Jan 2021

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: June 25, 2020

Abstract

When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination.

Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today.

During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.

Keywords: public health, coronavirus, emergency actions, executive power, constitutional law

Suggested Citation

Farber, Daniel A., The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts (June 25, 2020). San Diego Law Review, Vol. 57, No. 833, 2020, Available at SSRN: https://ssrn.com/abstract=3635740 or http://dx.doi.org/10.2139/ssrn.3635740

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

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