Your money or your life
posted by Alice Ristroph
A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.
I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?
This latter inquiry obviously relates to my research on Political Anthropomorphism. One could argue that just as I have an interest in keeping each of my toes intact, the state as a super-person has an interest in keeping each of its constituent members intact. But the analogy doesn’t work perfectly. I’m in trouble if I lose a toe, because new toes are not that easy to come by. (But see The Big Lebowski.) The state, on the other hand, is in trouble if no citizen ever dies, because new lives will continue to come into existence. Given limited space and natural resources, no state can sustain an infinitely large population.
Of course, the notion of the inherent dignity or sanctity of human life is a powerful one. But it seems that most arguments for such dignity—at least the secular arguments—ground the life interest in the individual herself. Does the state have an interest in preserving life that is not derivative of the individual’s own interest in staying alive? If it does, should we expect the state not only to fund health care, but to coerce citizens to get it? Or was the Court right in 1905: coercion to save your life or health is permissible only so long as it does not infringe on economic liberty?
March 28, 2007 at 12:42 pm
Posted in: Constitutional Law, Health Law, Legal Theory
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Responses (7)
David - March 28, 2007 at 1:56 pm
With an infectious disease, the externality effect of refusing innoculation seems a bit more visceral than regulating bakers’ working hours.
Patrick S. O'Donnell - March 28, 2007 at 7:05 pm
I don’t think most conceptions of dignity or the sanctity of life (secular or not) ‘ground the life interest in the individual herself,’ rather, it has something to do with the human species as a whole, or a common nature that we all share (what we used to call ‘human nature’), that serve to ‘ground’ these notions: from the Greek and Roman Stoics, through Grotius, implicit in Marx, in Martha Nussbaum’s work….
Patrick S. O'Donnell - March 28, 2007 at 7:05 pm
I don’t think most conceptions of dignity or the sanctity of life (secular or not) ‘ground the life interest in the individual herself,’ rather, it has something to do with the human species as a whole, or a common nature that we all share (what we used to call ‘human nature’), that serve to ‘ground’ these notions: from the Greek and Roman Stoics, through Grotius, implicit in Marx, in Martha Nussbaum’s work….
Edward Still - March 28, 2007 at 9:21 pm
Just for the record, I taught Jacobson in my Con Law class this year, and if I have time, I will bring it up again in connection with the question whether all boys and girls should get the HPV vaccine.
David Bernstein - March 28, 2007 at 10:46 pm
If one reads Lochner closely, it’s clear that Peckham and the majority reject the notion that the Lochner law was a public health measure. Peckham was far more libertarian than any of his colleagues save Brewer, so it’s not surprising that he dissented in Jacobson. But Lochner is NOT a libertarian opinion; the Court acknowledges that the public health aspects of the Bakeshop Act were legitimate and unchallenged. The hours part of the law is unconstitutional only because the Court found that it was not a public health law, and, moreover, that neither common knowledge nor evidence presented to the Court suggested that baking was more unhealthful to bakers than the pursuit of other occupations to other workers. In short, I think you’re comparing apples and oranges, though I agree that Jacobson is any interesting case, if only to show that the caricature of the Lochner Court as extreme anti-statist is wrong.
Scott Abeles - March 29, 2007 at 1:41 pm
The important point distinguishing the two cases, and explaining why one is disdained and the other favored, is, with respect, lost amongst the “pedagogical” and “anthropomorphism” gobblygook clouding this post. Jacobson admits the constitution doesn’t speak to vaccinations, and allows the issue to be subject to the political process. Lochner pretends the constitution speaks to bakers’ hours, and removes the issue from the political process. The question embedded in the post - whether the “state” has a legitimate interest in preserving life - would more properly be stated as whether the citizenry have a right to vote on such contentious issues, or whether they should be enshrined as a matter of constitutional law by unaccountable, unelected lawyers. Assuming one agrees that neither the state “power” or individual “right” being discussed here is found in the constitution (nor, for that matter, is any “right” to health insurance or health care), it seems obvious that the political process is not only the appropriate place, but also the only place, for the issues to be decided.
Dunce - March 29, 2007 at 4:29 pm
I thought that Lochner was favored because it contains arguably the best Supreme Court opinion ever written. Read the dissent by Holmes and weep. It is a thing of beauty.
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