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Choose just ONE of the questions below and answer it in essay form

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Choose just ONE of the questions below and answer it in essay form. At the beginning of your essay, please include the question that you have chosen to answer for this. This essay should cover at least 3 single- spaced typewritten full pages with a 12 point, Times New Roman font. Essays that are just summaries of the course material will not do well. I want an organized, well-written, and clearly expressed essay led by your thesis position, made by your arguments, and supported by course content as evidence. (NO OTHER REFERENCES EXCEPT FOR COURSE CONTENT).

ESSAY QUESTIONS

Read the questions carefully to figure out exactly what I am asking you to answer.

1. Considering all those who could be affected, is it an overall benefit or detriment for the rights of everyone in the country for a court to be able to use the “exclusionary rule” and the “Fruit of the Poisonous Tree doctrine” to exclude illegally obtained evidence?
2. In Lochner v. New York, Justice Peckham disagreed with the viewpoint of the New York State Legislature that a law regulating sanitary conditions and working hours for a bakery legitimately related to the safety or health of a community. Do you think that our Constitutional rights and liberties are better protected if a Court can substitute its policy judgment in place of a competing one made by a Legislature or if a Court restricts itself to deciding whether a law is expressly consistent with the Constitution? (You can use the Lochner case as an example in your essay, but you may use other cases as well.)

3) Imagine that a state legislature passes a law requiring everyone in that state to receive one of the COVID-19 vaccines. What kind of a) penalties for the people and b) limitations to the law would have to be included for you to consider it Constitutional?

4) In Jacobson v. Massachusetts, the Supreme Court required that a state law claiming to regulate public health and safety must be necessary and reasonable for it to survive a valid citizen claim that the law affected their Constitutional rights. However, not every Court uses those two limitations. When a Court does not use them, does it allow the concept of State Police Power to extend the reach of the Tenth Amendment too far?

5) Do you agree with the majority in Kelo v. City of New London that the “public use” requirement from the “Takings” clause of the 5th Amendment can be properly satisfied if the government had a legitimate “public purpose” in using eminent domain to take the private property from one private citizen and give it to a private company to own?

6) Should Copyright be considered as a right with a similarly high level of importance and protection as the fundamental rights expressly recognized in our Amendments rather than as an incentivized privilege that the government only grants for a limited time?

7) One purpose of Trademark law is to protect consumers from confusion as to which company a product or service comes from. Therefore, is it an overall benefit or detriment to consumers when a very well-known brand name for a company or its product/service loses its legal status as a valid Trademark due to a finding of “Genericide” by a court?

8) There are five pairs of words below. The first word is a brand name, and the second word is a product type. The legal strength of each brand name fits into one of the five different categories of the “distinctiveness spectrum” of Trademark. For this question you need to do 2 things: A) Name the spectrum category that you think applies to each brand name, B) Explain why the category that you choose for each name is appropriate based on the legal description of the category and level of protection that category gets.

1. a) “Blanket” hamburgers
2. b) “Sodium Chloride” seasoning
3. c) “Illuminating” lamps
4. d) “Flryzx” watches
5. e) “Atlas” mattresses

How to write an argumentative essay This advice will help you write better essays for the Midterm and Final Exams in my classes. I do not know if this advice will help you with other Professors. The first important thing for my essays is to realize that you have to answer the specific question and not just the overall topic. Focus on the actual question and answer every part of the question if there are multiple parts. Take the time to patiently figure out which parts of my question are asking you to write something. If you only answer part of my question, you aren’t going to get a high score no matter how good your essay is for that one part. Read the questions carefully before you start writing or preparing. You need to follow directions and know exactly what you are answering. Do not just write an essay from your prepared notes on the topic that you wanted to talk about. My questions, exactly how I have written them, have to be your focus for you to do well on my exams. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. Give me your viewpoint in the form of a thesis statement that directly answers the question that I am asking. Then give me 2-4 main reasons why you believe in your viewpoint in the form of 2-4 arguments with each argument being a paragraph. Then you can introduce evidence to support the already made arguments. If you have a question with multiple parts, you don’t need 2-4 reasons for each part. Some of the parts may not require more than 1-2 reasons for the way that you feel. You know how deep you have to go with argument based on the approximate page limit and how many parts of the question you have. If I ask a question that has 3 parts to it, you know that you don’t need to go more than 1 page for each part to if I am asking you to write a total of 2-3 pages for the entire essay. If there is only 1 part to a question, then you would want 2-4 reasons supporting your thesis. For the midterm and the final exam, you have to have a strong structure for your essay that acknowledges a central thesis position from the start of the essay and provides arguments and evidence to focus on and support that thesis position. That thesis position should be your answer to the question. Do not end your first paragraph without giving your thesis position as it should be the focal point of the essay. You can’t focus on something if you haven’t introduced it. It is also appropriate in the thesis paragraph to “forecast” your arguments after you give your thesis position. “Forecasting” means to give your thesis position first and then immediately provide very brief statements of your arguments afterward. EXAMPLE: This prompt is from an optional Writing Assignment from a previous course: “In a 2 to 3-page essay, answer this question: Does the power of the Judiciary to override decisions of popularly-elected representatives from other branches of government strengthen or weaken the Constitutional rights of the citizenry? Why?” Here is an example of a thesis statement that has forecasting. “The power of the Judiciary to override decisions of popularly-elected representatives from other branches of government definitely strengthens the Constitutional rights of the citizenry. The reasons I feel that way is because factions have taken control of our representative government, the Judiciary is able to best defend against tyranny of the majority, and Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights.” What I did there was briefly summarize the 3 arguments that I plan to use throughout the essay to support my thesis position. With those 2 sentences ending my thesis paragraph, I now have forecast/previewed to the reader what my main supporting reasons are for why I feel the way I do about my thesis position. It is my responsibility to follow-up on them all, but I have already done the first important thing in writing an academic essay: communicating my intentions to the reader. I have also done the first important thing as a writer: prepare my structure. With that task done, it is VERY easy to structure all of my essay paragraphs: Thesis Paragraph: Brief introduction, Thesis statement, Argument forecasting. Also, it is fine to have a 1-2 sentences to start your thesis paragraph that introduce the topic in general but do not spend too much time discussing the overall topic. Discussing the overall topic will not get you points on my exam. Get right into answering the actual question and you do that by giving your thesis position and then getting into your arguments. Forecasting is a way to get points but it’s more importantly a way to get you to focus on the way that you write your essay. Body Paragraph 1: Argument 1. The “factions have taken control of our representative government” phrase will now be turned into a full argument. I will give 2-3 sentences laying out my points with my own opinion and reasoning since this is my argument as to why I feel the way I do about my thesis position. Then I will give some outside evidence while specifically tying the evidence to my arguments. I do not leave it to the reader to make the connection. I make it for them. That is the job of a writer in an academic essay. I also do not include quotes in my paragraph without first introducing them and then connecting them to my points. I will also only choose outside evidence that supports my argument. And I will not use more outside evidence than I need. Just because a quoted sentence comes from a paragraph doesn’t mean I have to use that entire paragraph. Also, do not use the source to make your argument for you. The source just supports your argument by giving some outside credibility/approval/evidence of your points. Body Paragraph 2: Argument 2: “the Judiciary is able to best defend against tyranny of the majority” I do the same to create an argument as I did with the first. Body Paragraph 3: Argument 3: “Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights” ” I do the same to create a full argument as I did with the first and second arguments. Brief Conclusion: You don’t really need a conclusion in one of my timed exams, but you are welcome to provide one. Just don’t bring up a new argument in your conclusion paragraph that you didn’t already bring up and fully make before. Use the conclusion paragraph for any extra insight as to the overall situation. If you use the above structure and provide deep enough arguments with useful evidence and analysis, you’ll have enough of an essay to cover 2-3 page. 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 a fine of $5. And the court ordered that he stand committed until the fine was paid.” He was imprisoned until he could pay the fine. Again, he was not vaccinated. Justice Harlan delivered the opinion for the Supreme Court. The first thing he does is provide a quick resolution to the jury instruction questions that Jacobson tried to raise. However, these are not the “IRAC” issues in this case because Harlan sees them as irrelevant. That is because the responses to those questions aren’t being used to choose a winner in this case. If you can’t use the answer to determine the outcome, the question isn’t the issue of the case. Just like the rule in the case is the one that the judge relies on to decide the winner, the issue is the question in the case that is answered by using the actual rule. However, he quickly answers Jacobson’s questions anyway so that people understand why they aren’t relevant. Question 1: Is the particular section of the statute of Massachusetts now in question (§ 137, chap. 75) in derogation of rights secured by the preamble of the Constitution of the United States?” In other words, does the MA state law violate the Preamble? Response: “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. … 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.” The Preamble has no actual legal effect, so it is irrelevant if the MA law conflicts with it in some way. Only the powers delegated within the Articles or Amendments count to grant power to the government or hold them responsible. Conclusion: Irrelevant question. Question 2: Is the MA statute opposed to the Constitution as a whole? Response: “We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision.” We will use the words in the specific part of the Constitution that we think pertains to this matter rather than the philosophy of the overall Constitution. His rationale: “'the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from its words.' “ In other words, the words of the Constitution hold more legal merit than the spirit of it since you can’t have the spirit without looking at the actual words. Conclusion: Irrelevant question. Then Harlan gets into the case as he, and the majority, sees it. Harlan asks how the state court sees the meaning and effects of the MA statute. He also asks whether it was wrong for the initial court to reject Jacobson’s claims as legitimate evidence. Harlan poses a statement of the issue at the end of section 5. “Is this statute . . . inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?” This “liberty” is under the due process clause of the 14th Amendment. Like Lochner, the sole issue of this case is whether the meaning of “liberty” in the 14th Amendment has been violated by state police power. However, this time it’s not “liberty” of contract, it’s personal liberty against compulsory vaccinations. Harlan’s question at the start of section 7 repeats this inquiry: “We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court.” Essentially, the broad issue of this case is whether the MA statute interferes with any right or liberty given by the Constitution to each person: specifically, the issue is whether the due process clause of the 14th Amendment is interfered with. Sometimes a judge will present the issue in a more general way even though the specifics of the complaint and discussion will be more narrowly focused. Harlan then acknowledges that this is a case about state police power. “The authority of the state to enact this statute is to be referred to what is commonly called the police power. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description. indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” He then provides the rule (as in the “r” in IRAC) guiding this case in a very large statement that spans an entire paragraph. Given the complex issues of the case, it is somewhat common for a rule to require more than just one sentence to express. Rule part 1: “According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Discussion Question: Are you concerned that the term “reasonable” can give the Court too much power since what is reasonable to some may not be to others? That is joined by the part after the case citations. One useful way to find a rule of law is whether the judge has cited previous cases to find it. That points to the fact that the rule is a result of precedent that has guided the court in this field of law. Rule part 2: “The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures.” Harlan is saying that state police power is limited to not infringing the Constitution or rights established by it. Remember that this case came before Lochner v. New York. In Lochner, Peckham gave this as the test to determine when state police power should be able to overcome a liberty in the Constitution: Peckham: “In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Harlan is acknowledging that state police power has its limits but he has not yet shown whether the MA law falls within those limits. That is his task over the next few paragraphs in applying the law to the facts of this case. Harlan’s definition of state police powers is similar to the one that we discussed in the past. He offers a general, but non-committal assurance, that these state police powers should not be allowed to clash with citizen rights. But he is rather vague on the question of whether state police power can clash with the national government. This case does not have any question of Federal legislation being challenged (much as Lochner didn’t) but certainly the Federal Judiciary has to be able to preside over the Constitutionality of this instance of state police power. That ends Section 6 and takes us back to the start of section 7 to his restatement of the issue: “We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court.” Harlan provides a philosophical rationale for why Constitutional rights are limited. “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.” You can sum up Chapter 2 of Locke and end up with a sentence similar to Harlan. He is saying that you can’t allow people do claim the absolute freedom to do whatever they want if it injures others. That isn’t workable. Furthermore, the purpose of society is to avoid this situation and that requires the law to limit people’s rights in certain situations. “This court has more than once recognized it as a fundamental principle that 'persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.” This isn’t specifically a rule as it is a guiding principle for cases involving state police power and the legitimacy of government power in general. He supports his views with a quote from an 1890 case called Crowley v. Christensen: 'The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.' Discussion Question: Do you think that Harlan’s viewpoint does more to protect natural rights/liberties or threaten them? Can this view lead to a conflict between some rights/liberties that are protected vs. other rights/liberties that are threatened? All of this serves to lead to his conclusion as well as to support the idea that state police power can interfere with the limited liberty that we get in a society. He also further supports his argument by showing how state police power in Massachusetts is established by the State Constitution of Massachusetts. “The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Com. v. Alger, 7 Cush. 84.” Having established the legitimacy of state police powers and the legitimacy of the legislation in this case, he then moves onto Section 8. Section 8 is very important in this case, so it is unfortunate that it is so large. It could have been a little more readable had he split it into smaller paragraphs as he did later on in the opinion. He starts the paragraph showing how a city board of health was a logical body in which to vest the power of deciding when the law should be executed. Remember, in order for state police power to legitimately win out in this situation, Harlan is trying to show that it was necessary and reasonable and not arbitrary. Reasonable: “and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement.” One thing the MA law has to its advantage vs. the NY Bakeshop Act was that the MA law allows individual city boards of health to make the decision rather than for the law to apply to the entire state without cities “opting in”. The idea that each city’s Board of Health gets to make the decision is one factor that leads Harlan to see this law as being reasonable because 1) Cambridge’s Board of Health was the proper group to make that decision due to their “fitness” of medical knowledge and 2) it was made on the specific local levels rather than being a decision by the MA legislature affecting the entire state. Here is a particularly interesting sentence defending police powers that takes us a little closer to the purpose of this week regarding the current issue of COVID. “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.” This brings up the question of whether a community itself has rights or whether it’s just a convenient way to collectively define the rights of individuals. In any case, it brings up the question of protecting the community at the cost of the individual. We have said before, spurred on by Locke, that a law without enforcement is no law at all. Rights and liberties have no protection unless they are acknowledged by law and enforced. And without having laws that can be enforced, a community set up to protect people’s rights has no ability to do so in actual effect. So if you have an individual objecting to a law and that stands in the way of the law operating to protect all of society, you have a significant conflict that is difficult to decide. Discussion Question: Can a community, or the people in the community, actually protect itself against an epidemic of disease without having the ability to pass binding laws through its representatives that stop the spread of disease? Harlan established that the law was reasonable. He moves on to the question of whether the law is necessary in achieving its purpose related to state police power. Necessary: “if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, 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.” And here is Harlan’s principle of the need for court restraint in this situation: “Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” Harlan is saying the court must defer to the wisdom of the legislature given the realities of smallpox and the way that the vaccination was set up under MA law. Discussion Question: Do you think Justice Peckham followed this principle in his decision in Lochner v. New York? Is it fair to hold him to this standard given the differences between smallpox vaccinations and hourly limitations in bakeries? I bolded necessity above to show how it addressed Harlan’s earlier standard about when state police power can infringe on a Constitutional right but also because Harlan made it a point to say that the court must establish necessity to be present for state police power to be considered legitimate in this type of situation. “We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” The requirement of necessity stops a law, claiming to be made under state police power, from being arbitrary or unreasonable in its interpretation or enforcement. It’s not enough for the state to claim that a law was made under state police power, the law itself also has to be reasonable and necessary for it to be valid. Harlan is saying that this specific MA law has done that but not every law will. Harlan discusses some past examples of cases that involved laws which had terms that did not establish necessity and were therefore held to be unconstitutional because those laws conflicted with government powers or citizen rights. Harlan goes back to general principles of when individual liberty has to be limited: “The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person 'to live and work where he will' (Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger.” Harlan is saying that in certain situations, the public doesn’t have to rely on people voluntarily submitting themselves to reasonable and necessary regulations created to protect them. During those times, the state has to be able to proactively protect themselves much as they do in drafting citizens to go to war to protect the country. Discussion Question: Do you find the “military draft” analogy to be convincing as to why laws requiring mandatory vaccinations (or other mandatory rules during a public health crisis) should be legitimate even if they conflict with citizen rights? Discussion Question: Although the penalty for Jacobson under the MA law in question was just a fine, do you think that Harlan would have decided this case differently if the penalty was the vaccination itself against Harlan’s will? Discussion Question: If you think that Harlan’s conclusion and rationale was fair in this case, would you disagree with the legitimacy of a MA law saying that Jacobson had to be vaccinated against his wishes rather than just fined for declining the vaccination? How would you draw the line between the two situations based on Harlan’s reasoning for why the fine was fair? Having moved beyond the question of whether the state law was necessary and reasonable to survive a clash with Jacobson’s constitutional rights, Harlan than moves onto other concerns. Here are a few of them: Equal Protection: Jacobson claimed the law was a violation of the “equal protection” clause of the 14th Amendment. The reason for that was because despite the fact that children could be exempt from penalty for refusing the vaccination if they have a Doctor’s note, no such exception exists for adults. Therefore, the law did not equally protect adults on the same level as children. However, Harlan did not agree: “But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.” This was a rather short response from Harlan without as much depth as he could have used to make his point more forcefully. But that was the end of this issue. Keep in mind that the deep Judicial analysis of “Equal Protection” clause (using the scrutiny analysis) wasn’t established by the Court until many years later. If the same issue was raised now, it’s unlikely that it would have any better success than it did when Harlan heard the issue. We’ll get into that in 3 weeks but it has to do with the fact that “age” falls under the “rational basis” standard which means that the citizen has the burden to prove the law is discriminating rather than the government having the burden as they would if the law referred to race or gender. Later in this case, Harlan actually does touch on the issue of an adult needing a specific exception to the law but not as an equal protection issue. Effectiveness/safety of vaccine: Harlan dealt next with Jacobson’s claim that vaccination, or a certain one, was not proven to work against smallpox and that there were doctors who didn’t approve of them. The idea here is that the MA statute may not be necessary if it suggests a solution that wouldn’t actually help against the spread of smallpox. However, Harlan says two things: 1) that MA was aware of these viewpoints and chose not to accept them. And 2) it was not the duty of the MA legislature to put it up to a formal vote by society as to whether these anti-vaccination theories were accepted. “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. It could not properly abdicate its function to guard the public health and safety.” Harlan is saying that a legislature should absolutely not allow such a question to go to the general public in a situation regarding public health and safety. On one hand, that sounds like a distrust of democracy but Harlan certainly realizes that the representatives are voted in by the people to begin with. However, what he’s saying is that a situation like a smallpox outbreak isn’t the time for a society vote. Under a representative democracy, the role for the public is deciding who gets to serve on the legislature. Once that is done, we delegate the authority to make laws to them. Remember though – as I mentioned early on in the semester, there are still “ballot initiatives” and other elements of direct democracy in this country. Discussion Question: During some type of public health scare, should decisions of how to deal with it be left to a public vote or to the legislature? Is it significant to you whether the public health scare requires science or some specialized knowledge in order to properly understand and solve the problem? Harlan goes further along this line of inquiry: “the state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best-known, way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population.” He then presents something of a rule for this situation: “If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Harlan is saying that the role of the Court is to 1) question whether a law created by state police power is reasonable and necessary to accomplish the objectives of that law and determine the law’s connection to the state police power requirements. 2) ensure that the law isn’t a clear violation of Constitutional rights. The role of the court isn’t to question whether the legislative action is the most effective way to go about solving the problem and second guess the legislature. Based on that determination, how would Harlan feel about Peckham’s decision in Lochner? It’s actually an easy answer – Harlan dissented to Peckham’s majority opinion! And in Jacobson, Peckham dissented to Harlan’s majority opinion. Clearly, you can’t look to the Supreme Court as a whole to have the same viewpoint on its own role in determining how much deference to give the states. Discussion Question: Should the question of “state police power vs. Constitutional rights” have a more consistent answer among Supreme Court justices or is it a good thing that they can have different answers about this issue? Discussion Question: If the President nominated someone to serve on the Supreme Court, would you support the Senate voting against that nominee purely on the basis of the nominee’s specific views on the limits of state police power? Harlan then issues a statement which reads like a holding: “Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety.” He then goes over some previous cases dealing with vaccination. He also dealt with Jacobson’s claim of whether he should be able to refuse vaccination because he had ill effects when he was a child and had concerns that the same effect would happen to him if vaccinated as an adult. Harlan said that Jacobson offered no evidence or even a claim that he is unfit as an adult to receive vaccination. His entire claim was that since he had ill effects when he was young, that he would have them again as an adult without offering proof of any other current condition that would put him at risk. Harlan also said that excepting Jacobson based on this hypothetical concern would have make it impossible for society to deal with a public health crisis. The entirety of paragraph 17 expresses Harlan’s concern here. Then he says this to start 18: “We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state. That was one expression of the holding as to the issue of whether Jacobson was granted any protection by the Constitution to reject the vaccine based on his concerns. The other expression of that holding is longer and broader: “We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect.” However, Harlan attempted to show some judicial restraint by not allowing his decision to extend to all potential cases of vaccination or public health. He says that there are some situations where the statute should not apply: namely one where an adult who was in poor health would suffer greatly under a vaccination. And in that type of situation, the Judiciary would have the ability to step in. “We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.” A further statement of this holding that could guide other cases but was not directly applicable in this one as Jacobson didn’t claim to fall under its protection: “We are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death.” Rather, he explains why this case is subject to the rule and gives the final holding. “No such case is here presented. It is the cause 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. We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error.” Much like Peckham did in Lochner, he is not necessarily trying to create a broad rule for other courts but, rather, just apply the existing rule to this specific case. Had Jacobson made different claims and supported those claims with evidence, it’s entirely possible that Harlan would have decided this case differently. But we’ll never know. And it’s appropriate to many legal scholars that a Judge (particularly a Justice) would not create a holding that is broader than the facts of the case. Discussion Question: Given the scope of the smallpox health crisis and the likelihood that another person could have sued that fit under Harlan’s own exception, should Harlan have challenged the part of the MA law that did not give an adult an exception if he was able to produce a doctor’s note? Discussion Question: If a claim is not raised or supported by a party in a conflict, should a Justice restrain themselves from striking down part of a law? What if the judge acknowledges that the law has a potential flaw as Harlan did here? Reading Assignment to be completed before Session 20: - “Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law” - https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/ - Read Session 20 notes. Session 20 – Thursday, April 22 Topic: Individual Rights vs. Public Health – Part 2 Today we will be talking about the societal and legal ramifications of Jacobson v. Massachusetts: What is most relevant to us is its potential to apply to COVID-19 rules. The past few sessions delved very deep into cases and legal terminology. Today we are going to approach things from more of a policy perspective as we deal with COVID questions. The reason I assigned Jacobson in this course, and covered Lochner so early, was because I thought the discussion of COVID needed a central role this semester. However, I wanted to first “set the table” with related precedent and legal principles (like state police power) before moving onto the topic of COVID. Now we have come to the class I reserved for discussion of philosophical questions about how the government should respond. Those responses this year have included laws related to masks and quarantines. Jacobson has given us the legal basis to further discuss vaccinations. Before we get into the question about vaccines, I want to clear up some terms. The CDC website defines immunizations and vaccines like this: “Immunity: Protection from an infectious disease. If you are immune to a disease, you can be exposed to it without becoming infected. Immunization: A process by which a person becomes protected against a disease through vaccination. This term is often used interchangeably with vaccination or inoculation. Vaccine: A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease. Vaccines are usually administered through needle injections, but can also be administered by mouth or sprayed into the nose. Vaccination: The act of introducing a vaccine into the body to produce immunity to a specific disease.” The Jacobson case had a specific focus on the question of mandated vaccination. It had broader coverage of the question of when state governments can require individuals to take certain health measures with the intention of immunizing the community as a whole. The first year of the COVID pandemic relied more on the broader question of Jacobson and state police power. Vaccination was not initially an option since one had not been released yet. All of the questions have related to matters such as masks or quarantines. We’ll discuss those questions about general health measures later on in this session. The specific question about vaccines has become more relevant since January due to the various ones that have been created for COVID-19. That is why it’s so important to understand Jacobson and the aftermath of the case in regard to vaccines. Once we cover that, we will talk about the issue of state police power for general COVID health rules. I assigned one article for today but I want to mention one more article that could be useful on this topic. “Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension” Let’s talk about the article assigned for today: - “Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law” - https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/ The article provides broad coverage of the some of the issues we have already studied. I’m not going to go too heavily into the section on Jacobson v. Massachusetts as we already covered that. But I do want to comment the article’s understanding of the court’s analysis for the purpose of showing whether further cases followed those general principles in addition to the rule itself. Then we will get into the general question of state police power interacting with public health law and the connection to COVID. Keep in mind that this article was written in 2005 so it does not acknowledge COVID. However, it was written shortly after the SARS epidemic. The giant COVID announcement at the top of the article is from the website itself, belonging to the National Institute of Health, and is present for all of the journal articles featured here. For more information on the website itself (as it features a lot of informative articles) “PubMed Central® (PMC) is a free full-text archive of biomedical and life sciences journal literature at the U.S. National Institutes of Health's National Library of Medicine (NIH/NLM).” This is the abstract of the article to give you an idea of the topics and purpose: “Jacobson v Massachusetts, a 1905 US Supreme Court decision, raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty. We examined conceptions about state power and personal liberty in Jacobson and later cases that expanded, superseded, or even ignored those ideas. Public health and constitutional law have evolved to better protect both health and human rights. States’ sovereign power to make laws of all kinds has not changed in the past century. What has changed is the Court’s recognition of the importance of individual liberty and how it limits that power. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.” The authors are forecasting a viewpoint that utilizes a concept of balance between the goals of protecting public health and personal liberty. Here are the articles’ objectives: “In this article, we discuss these changes by examining (1) the conceptions of state power and personal liberty discussed in Jacobson and (2) 20th-century cases that expanded, superseded, or even ignored those concepts. Finally, we speculate about how challenges to analogous public health laws would be decided today in light of the evolution of science and constitutional law.” In its broad historical coverage of state police power up to Jacobson v, Massachusetts, the articles raises an issue I discussed in the notes from this past Tuesday’s session about state police power. It is not just a potential impediment to the Constitutional rights of citizens but to the Constitutional powers of the national government as well. “Most early Supreme Court cases that involved state police powers, however, were disputes over which level of government—state or federal—had jurisdiction to regulate or tax a commercial activity.30–37 Jacobson was the rare case in which a state’s jurisdiction was not questioned— because no one claimed that the federal government should control a local smallpox epidemic.” One question for this session today is whether the federal government should either control or share control with the states in dealing with COVID. You can allow each state to control its local outbreak but does that work with a pandemic that spreads across state lines due to the way that people travel more easily in 2020 than they did in 1900? Discussion Question: How much power should the federal government have in responding to COVID compared to the states? Discussion Question: If they share power, what should the dividing line be as to what the federal government can do vs. what the state government should do? Discussion Question: Disregarding politics, is Congress and the President in a better position of power to capably respond to COVID than State Legislatures and Governors? Or do the unique powers that each side share best used working together? Here is the first excerpt on people’s reactions to Jacobson rather than the case itself. “Jacobson may be what Sunstein called a narrow and shallow decision—narrow because it is not intended to apply to a broad range of legislation, and shallow because it does not explicitly rely on a general theory of constitutional interpretation to justify its result. People who have quite different world views or philosophies can accept the decision because it need not require the same result for different laws or in different circumstances. Not surprisingly, judges and scholars emphasize different language in the opinion to support different interpretations.” This comment is in regard to the idea that the Jacobson rule for the legitimacy of state police power is open enough to interpretation that different people can see their desired results in the rule. Therefore, it’s not a controversial rule or necessarily a useful, guiding rule since it can be used to get to very different outcomes. The article mentions the rule for Jacobson but also mentions the justification as to why the MA state law counts as a Constitutional usage of state police power: “The constitutional question was whether the state could justify restricting 1 aspect of liberty (the liberty to refuse vaccination). Without justification, the law is unconstitutional. With justification that meets constitutional standards, the restriction on liberty does not violate the Constitution.” The more interesting thing here is the article’s understanding of the reasons why the MA law was valid. The article says those reasons should be relied upon as part of precedent: “The Court mentioned 2 justifications for the Massachusetts law. First, it found that the state may be justified in restricting individual liberty “under the pressure of great dangers” to “the safety of the general public.” The statute, by its terms, encroached on liberty only when “necessary for the public health or safety.”2(p29) The smallpox epidemic proved the danger to the public. Second, by using the language of earlier decisions, the Court said that laws should not be arbitrary or oppressive. It also suggested that the state should use means that have a “real or substantial relation” to their goal.2(p31) In this case, vaccination was a reasonable means to achieve the goal of controlling the epidemic. It was not an arbitrary choice; it had a real and substantial relation to preventing the spread of smallpox.” The 1) “necessary” and 2) “reasonable” standards are raised here. One can say that “reasonable” was the broader principle that “not be arbitrary or oppressive” principle fell under, or that “reasonable” fell within the “not be arbitrary or oppressive” principle. In either case, Justice Harlan provided a guide for how a court should look at a state law to see if it can be legitimate even if it infringes on a Constitutional liberty. The article points this out so they can show how future cases abandoned those standards even though they continued using Jacobson as precedent. “One might have expected that these standards would be used to judge the validity of laws that restrict personal liberty. In later cases, however, the Court did not necessarily require states to meet these standards. Instead, it sometimes ignored the standards in favor of a more general principle that permitted more discretionary use of state power.” As an example, the article mentions a case that I want to briefly talk about. In 1922, about 15 years after Jacobson, a case was decided in the Supreme Court called Zucht v. King. This case is very short and rather easy to read. In fact, the relevance of the case to this discussion can be seen by how short it is. The court’s heavy reliance on Jacobson was evidence of how settled the precedent was to the point where the court did not bother to spend much time analyzing the case. And that is one of the article’s concerns. Zucht uses the general rule that Jacobson used but without applying the specific Jacobson standards. Given how short the case is, it’s surprising they agreed to hear it to begin with. Perhaps they just wanted to show how certain the Supreme Court still was that the Jacobson precedent was good law for immunization cases despite the fact this case was occurring during the Lochner era where state police power itself was suspect. Perhaps they also wanted to show that the Supreme Court still believed it was good law in light of the founding of the Anti-Vaccination League 3 years after Jacobson was decided. Due to the rising sentiment against vaccinations, Zucht could be seen as a step by the Judiciary to affirm a previous precedent that became less popular over the preceding years. This issue in this case was whether an ordinance from San Antonio, Texas could exclude students from school who had not provided evidence of being vaccinated for smallpox. Zucht sued the city of San Antonio claiming that her liberty under the “due process clause” of the 14th Amendment was violated by being forced to submit to a vaccination against her will in order to go to school. She also alleged that “equal protection” was violated as well. The equal protection claim was quickly rejected by the court due to a lack of argument by Zucht that the ordinance actually violated equal protection. “A long line of decisions by this Court had also settled that, in the exercise of the police power, reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing.” The more significant part of the case dealt with Zucht’s due process claim. However, even this part wasn’t that long as it was largely a statement of the general state police power rule that was then very quickly applied to the Zucht case. A unanimous court acknowledged the authority of the Jacobson decision: “Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11, had settled that it is within the police power of a state to provide for compulsory vaccination. That case and others had also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” The opinion doesn’t delve much deeper in choosing Jacobson as precedent and applying it to this case. They also make one final point showing the deference that the Judiciary gives state legislatures in determining the Constitutionality of public health laws. “Unlike Yick Wo v. Hopkins, 118 U. S. 356, these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.” That is one final punctuation point on the concept that the Judiciary will read laws with a lot of leeway for state authority as long as they properly fall under state police power. From the article: “The Court did not mention the questions of whether smallpox posed any danger, whether vaccination was necessary, or whether the ordinance was arbitrary or oppressive. Its 3-paragraph opinion noted simply that states can grant cities broad authority to decide when to impose health regulations.” The point is that Zucht does not even use the word “necessary” and only uses the word “reasonable” to allude to Jacobson without applying it to the statute in the Zucht case. The article then discusses a disturbing case from 1927 called Buck v. Bell. In this case, the Supreme Court declines to strike down a law from Virginia that allowed people in mental health institutions to be sterilized against their wills. “Jacobson was cited as support for the general principle that public welfare was sufficient to justify involuntary sterilization. The decision extended the police power’s reach from imposing a monetary penalty for refusing vaccination to forcing surgery on a young woman against her will and depriving her of the ability to have children.50 The Court did not require the state to demonstrate that sterilization was necessary and not arbitrary or oppressive. This suggests that the Court did not view Jacobson as having required any substantive standard of necessity or reasonableness that would prevent what today would be considered an indefensible assault. The Court did not even consider that Carrie Buck might have any right to personal liberty.” It’s not just that the article has an issue with the legal outcome or concerning philosophical implications of the case. Rather, the article is concerned that Jacobson precedent is relied upon in an incomplete way without the specific standards Harlan gave. That is further evidence of the article’s concern that the Jacobson precedent is not understood in a specific enough way that it provides any real guidance. Therefore, it is a case that can be used, and has been used, to support radically different outcomes. Without the “necessary” and “reasonable” standards, Jacobson becomes a case that can be relied upon by courts to support many state laws that should not be allowed to exist. Discussion Question: How important to you are the “necessary” and “reasonable” standards as part of Jacobson’s precedent? Do you see those two standards as a crucial part of how future judges should use Jacobson as precedent to analyze state laws, or just the way that Justice Harlan happened to analyze the MA state law? The article goes back to showing the danger of incompletely using Jacobson. “Such cases diluted the reasons that justified restrictions on personal liberty. The Court did not always say that danger meant an immediate threat to the public at large, and it accepted a broader range of means as reasonable. The Court generally accepted, with little analysis, the legislature’s judgment of what should be done to protect public health and safety, at least where only individual liberty was affected.52–54 After a brief review of the Lochner era, the article brings up another point. “The Court then faced the problem of deciding how constitutional provisions limited government action.” This started a section on the 14th Amendment in general, scrutiny analysis, and the Civil Rights movement. Some of these principles we’ll be covering after the Midterm. “In the United States, the civil rights movement of the 1950s challenged the assumption that state legislatures could be presumed to act in the best interests of all their citizens in a way that had not been seen since the Civil War. The civil rights movement changed the social structure with as much force as the New Deal changed the economic structure.” The main point in this “MODERN CONSTITUTIONAL LAW: RECOGNITION OF HUMAN AND CIVIL RIGHTS” section is that the Civil Rights movement led the Courts to more closely scrutinize and limit state police power for various reasons. And that the Court began determining what specific rights we have and the hierarchy of those rights. However, there are rights that are not considered fundamental. Those rights are not protected as strongly by the Judiciary as others. As a result, state legislatures have had more success passing laws regulating those rights that are not struck down by the Courts. “Aspects of liberty that do not qualify as fundamental are subjected to “rationality review,” a test that continues the Court’s earlier deference to the legislature. Laws that restrict nonfundamental liberty rights need only be “rationally related” to any “legitimate state interest,” and the Court continues to accept almost any plausible reason as justification. Laws that regulate industry to reduce risks to health or safety are easily justified under this test.” This low-level review, often called “rational basis, “ continues the tradition of the Court assuming the legitimacy of state laws if they can show a reasonable relation to the purpose that the state is trying to accomplish. The “necessary” part of the Jacobson standard can be found in the higher-level review, often called “strict scrutiny.” And now the article delves into more modern issues regarding public health: “At the same time, the ways in which government achieves its goals has been changing.” “Responsibility for public health has spread from local community officials to cooperation with private organizations, the federal government, and even international organizations. As similar health problems increasingly affect people all across the country, the federal government has assumed substantial regulatory authority, just as it did for civil rights protection during the 1960s and environmental protection during the 1970s.” The role of the national government is key here in balancing state police power vs. individual liberties. Will the national government’s presence outrank the states using the Supremacy Clause to defeat state police power? And if that happens, will the national government’s legislation infringe Constitutional rights less than the state legislation? “the federal government remains a major player in national public health matters. In addition to direct regulation under the Commerce Clause, it wields considerable influence over state and local public health activities with its power of the purse.” In the next section, called “Applying Modern Constitutional Law”, this issue is raised: “Given the changes in constitutional law, public health, and government regulation, what kinds of public health laws that address contagious diseases might be constitutionally permissible today?” “A law that authorizes mandatory vaccination during an epidemic of a lethal disease, with refusal punishable by a monetary penalty, like the one at issue in Jacobson, would undoubtedly be found constitutional under the low constitutional test of “rationality review.” However, the vaccine would have to be approved by the FDA as safe and effective, and the law would have to require exceptions for those who have contraindications to the vaccine.” The article takes for granted the idea that “rational basis” scrutiny level of review would be used in this kind of situation. If the Court decides that people’s liberty to not be immunized against their will counts as a fundamental liberty under due process, than we’d see the Court use the “strict scrutiny” standard which is much harder for the government to satisfy. Even the “intermediate scrutiny” level would be hard for the government to satisfy as it still has the burden of proof, like it does with strict. The article discusses what would happen if there was a smallpox outbreak. “Assuming that an FDA-approved vaccine were available, there would be little, if any, practical need for a mandatory vaccination law. People at risk would undoubtedly demand vaccine protection, just as they clamored for ciprofloxacin after the (non-contagious) anthrax attacks in 2001.121 The real problem in such cases is likely to be providing enough vaccine in a timely manner. The same may be true for a natural pandemic caused by new strains of influenza, for example. Likewise, a state statute that actually forced people to be vaccinated over their refusal, such as Florida’s new “public health emergency” law, would probably be an unconstitutional violation of the right to refuse treatment.” The article turns to questions about privacy as well. It mentions a few cases that we’ll be covering on Tuesday: Cruzan v Director, Missouri Dept of Health and Griswold v. Connecticut. “In the case of Nancy Cruzan, the Court assumed, without having to decide, that competent adults have a constitutionally protected right to refuse any medical treatment, including artificially delivered care such as nutrition and hydration. Even the state’s legitimate interest in protecting life cannot outweigh a competent adult’s decision to refuse medical treatment” Is there a significant difference between laws that prevent people from refusing medical treatment for their own health vs. laws that prevent people from refusing medical treatment which affect others? If a patient with cancer refuses treatment, how does that differ from one with COVID? The article recognizes this distinction too. “Such cases underscore an important difference between laws that are intended to prevent a person from harming other people, which can be a justified exercise of police power, and laws that are intended to protect only the health of the individual herself, which are unjustified violations of liberty.” The article discusses the illegality of coerced medications by the state. “Even in an emergency, when there is a rapidly spreading contagious disease and an effective vaccine, the state is not permitted to forcibly vaccinate or medicate anyone.” Then discusses alternatives that would also likely be struck down as unconstitutional: “While it (The Supreme Court) has not decided a case that involved isolation or quarantine for disease, it has held that civil commitment for mental illness is unconstitutional unless a judge determines the person is dangerous by reason of a mental illness. Assuming, as most scholars do, that the law governing commitment to a mental institution also applies to involuntary confinement for contagious diseases, the government would have the burden of proving, by “clear and convincing evidence,” that the individual actually has, or has been exposed to, a contagious disease and is likely to transmit the disease to others if not confined” The article continues getting closer to discussion related to COVID: “The need for coercive measures like compulsory isolation can be seen as evidence of a failure to provide the public health programs that could have prevented or treated disease.138–140 For example, the rise of tuberculosis in New York City during the 1980s, and the city’s increased use of involuntary isolation for people who had untreated tuberculosis, owes more to the collapse of the city’s treatment programs than to the value of involuntary commitment” Discussion Question: Would the need for mandatory COVID vaccines point to a failure of public health programs and the public in not following earlier, less intrusive measures? Discussion Question: Even if it does point to a failure of public health, does that effect whether a mandatory vaccine should be considered legitimate once the state determines that the necessity for one is high and the rules are reasonable? “Today, involuntary isolation and quarantine should be needed and used only in extremely rare cases. The most likely is where a new airborne infectious disease, such as severe acute respiratory syndrome (SARS), for which no treatment yet exists, enters the country. Yet, even with the SARS epidemic, there proved to be almost no need to compel isolation, and quarantine was almost exclusively done in the individual’s home.” And now we get to the closest analogue to COVID in this article: SARS. At home quarantines, social distancing, isolation, etc have been early ways of attempting to deal with COVID. But the effects have varied from state to state based on people’s behavior. The last paragraph of the article is interesting as it goes back to the initial point that a balance is required between personal liberty and public health laws. “One practical reason for protecting constitutional rights is that it encourages social solidarity. People are more likely to trust officials who protect their personal liberty. Without trust, public officials will not be able to persuade the public to take even the most reasonable precautions during an emergency, which will make a bad situation even worse. The public will support reasonable public health interventions if they trust public health officials to make sensible recommendations that are based on science and where the public is treated as part of the solution instead of the problem. Public health programs that are based on force are a relic of the 19th century; 21st-century public health depends on good science, good communication, and trust in public health officials to tell the truth. In each of these spheres, constitutional rights are the ally rather than the enemy of public health. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.” Essentially, the best way to encourage public health is for public health officials and the states to respect Constitutional rights and trust their citizens to make good choices. When the states mandate certain restrictions, they lose the trust of the citizens and, as a result, end up losing the ability to steer the public in the right direction of health. Discussion Question: After the past year of COVID, do you find that final argument of the article persuasive? Would the public take better precautions on their own if they are given more room by the government to act and not be mandated to do (or not do) certain things? Is it enough for public health officials to point out the science and expect citizens to behave in ways that do not spread COVID without any further regulations? Let’s get fully into the modern-day issue of COVID vaccines. Despite the call for vaccines over the past year, they have not been greeted with universal acceptance over the past few months. There has been resistance to some or all available vaccines from groups of people whose views can be organized into roughly 4 approaches: 1) Those who refuse all vaccines for a variety of reasons (health, religious, etc.) 2) Those who doubt that COVID is dangerous enough to require a vaccine, so they don’t want to accept the potential health risks that come with taking a vaccine. (Those who think COVID isn’t even real could fall into this group too.) 3) Those who believe COVID is real and deadly but doubt whether the specific vaccines have been properly or safely tested by the labs or by the government. 4) Those who believe the vaccines are intentionally dangerous for people’s health and may also endanger their privacy due to theories about microchips. Inclusion of the first group is not a surprise. What is surprising is the potential alliance of the last few groups given how opposed they have been about COVID over the past 6-9 months. It is likely that members of those groups will seek Constitutional protection against vaccines despite seeking that protection for very different reasons. These groups have disagreed over the past 6-9 months on issues such as masks and quarantines but may unite against any state or federal laws that attempt to mandate vaccination. Some people are already refusing to accept the idea of being vaccinated in the future. All 4 groups also have members whose concerns about vaccine go beyond Jacobson’s. Jacobson was concerned that he would have a bad reaction due to his past. He didn’t like mandatory vaccination as an idea but did not allege any harmful intentions. However, there are many people who feel that the companies who are creating the vaccines, and/or the government, would use the vaccine to intentionally harm their health or privacy. These splintering groups and accusations are a result of a loss of trust the citizens have for each other and the government. They are manifesting at the same time as a polarizing election and Supreme Court nomination. Of course, divisions in society existed in 1905 around the time of Jacobson. Specifically, the Reconstruction Era was still occurring, and the Industrial Revolution was testing the relationship between workers and companies. One can argue that right now we’re facing a situation that can push the precedent of Jacobson to a breaking point. Even the precedent of Lochner, which acknowledges some state police power as legitimate, can potentially being challenged and overturned here. For state police power to possess any legitimacy, people have to trust in the legislature of their states. But that also means they have to trust the democratic process that elected the legislature, which means they also have to have some respect for the other voters. Let’s put aside the question of whether a specific law (like the NY Bakeshop Act or the MA vaccination law) should count as state police power. The bigger issue is this: if people can’t believe the legislature is 1) trying to protect us from a threat and 2) believe it is capable of doing so, then state police power itself will lose all credibility. The federal government as a whole can lose it too. Making things even more complicated is that people are divided as to whether this threat is real. To contrast modern times with 1905, Jacobson never doubted that smallpox existed or was dangerous. He just wanted the ability to refuse it without having to pay a penalty. Jacobson never thought that the vaccination was unsafe due to it being rushed or that there were other intentions by the legislature besides stopping smallpox. Rather, he believed that he specifically would have a bad reaction due to past reactions to vaccines. Both the Lochner and the Jacobson court had the luxury of assuming that the state legislature and vaccine makers had good intentions, and that the people largely agreed. The balancing of Constitutional law was difficult enough to analyze on its own, but the courts did not have to factor in a rising public sentiment mistrusting vaccine intentions: especially not from those who were scared of smallpox and wanted to eradicate it. The courts also did not have to factor in doubt about whether smallpox was real and the way that doubt caused criticism of the state legislatures when creating laws beyond vaccines. In Jacobson, Justice Harlan believed that state legislatures had good intentions in passing mandatory vaccination laws for the health and safety of the community. In Lochner, Justice Peckham didn’t doubt the issue of vaccines specifically but instead expressed a high degree of concern as to whether state legislatures had other motives when passing a law claimed under state police power. That is one reason they disagreed in each case. Discussion Question: How much trust should a court give the state’s intentions? Do you prefer Justice Harlan optimistic or Justice Peckham’s cynical approach for the question of Constitutional legitimacy of a mandatory vaccine law passed by a state? Discussion Question: If state legislatures have lost the trust of a significant number of voters in regard to their potential intentions for mandatory COVID vaccination, what is the Judiciary’s role in paying deference to those state legislatures and their laws? Discussion Question: Does your support for a law establishing a mandatory COVID vaccine depend on whether the punishment is monetary or a required vaccination? In other words, if you do support the idea of a law, does a specific punishment trouble you? Discussion Question: Does it matter to you whether COVID regulations (vaccinations or in general) are created by state legislatures or by state executives? Go beyond the issue of what political parties may occupy each branch of any given state. This is a question about the proper role of state legislatures vs. state executives in making these decisions. Discussion Question: Is it possible in the U.S. today to have mandatory vaccination law under state police power that would not anger the majority of the country? Discussion Question: If the Supreme Court strikes down a state law related to COVID (vaccinations or otherwise) for being illegitimate, how many people would assume the Court’s decision was for political reasons rather than those of Constitutional ones? What role do those assumptions have in hurting the long-term legitimacy of the Judiciary? Discussion Question: Are we close to a “new Lochner era” with the federal Judiciary (including the Supreme Court) potentially striking down COVID laws that are intended as state police power but that the Court sees as not necessary or reasonable? Discussion Question: Are we close to the Jacobson rule and precedent being overturned by the Supreme Court within the next year? How likely is it that a state creates a law mandating a COVID vaccine which is then struck down as violating the 14th Amendment Due Process clause? Would you support that result? Would your support for that result (or the opposite result) depend entirely on the specifics of the state law? At the start of the course, we talked about the continuum or spectrum of United States politics. On one end is the popular will and on the other end is the protection of individual rights and liberties. One of the historical roles the Judiciary has played since the start of this country is protecting rights/liberties against tyranny of the majority. Discussion Question: What kind of role can the Judiciary continue to play in a country where civil trust is shattered to a degree where there is no widespread agreement about what constitutes a threat or what a necessary and reasonable response to that threat is? Reading Assignment to be completed before Session 21: - Read Session 21 notes Inside Constitutional Law – Chapter 7: Pages 192 – 202, 206 – 207. Read Kelo v. City of New London 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.