The United States Supreme Court has long upheld mandates to protect against the spread of communicable diseases. In reference to measures taken to eradicate smallpox, it has said that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
Here are some other really great quotations from that famous SCOTUS case, penned by Justice John Marshall Harlan of Kentucky, a well-known champion of individual liberties known for his dissent in Plessy v. Ferguson (you know, that black mark on American jurisprudence that upheld the evils of racial segregation), just as a reminder of why the public good can, in specific areas, override individual liberties:
- “. . . [the U.S. Supreme Court] has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description’ . . ..” Id. at 25.
- “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.” Id. at 26.
- “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 [principle], . . ., regardless of the injury that may be done to others.” Id.
- “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.” Id. at 26-27, quoting Crowley v. Christensen, 137 U.S. 86, 89 (1890).
- “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.” Id. at 27.
- “. . . [I]t was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.” Id. at 29.
- “There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, — especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Id.
Therefore, dear friends, when you hear yourself or someone else say mask mandates or social distancing or vax-only policies or what-have-you are a violation of the individual liberties guaranteed to you by the Constitution, just think about good ole Justice Harlan, who would most likely tell you that dog won’t hunt.
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