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?