Thursday, April 23, 2020
Report: Common-good constitutionalism been spreading in Cambridge, Massachusetts for decades, maybe centuries
Some of the recent alarms about a flare-up of common good constitutionalism in Cambridge, Massachusetts may have underestimated its prior spread. Recent research in the U.S. Reports confirms that high legal authorities deployed common good constitutionalism over a century ago to overcome the resistance of Cambridge resident Henning Jacobson:
The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But 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. 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. 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." Railroad Co. v. Husen, 95 U.S. 465, 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 628, 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont, 140, 148. In Crowley v. Christensen, 137 U.S. 86, 89, we said: "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." In the constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men." 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. Commonwealth v. Alger, 7 Cush. 53, 84.
Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905)
Asked for comment on these findings, area law professors disagreed with this diagnosis of Mr. Jacobson's losing liberty interest. One said this diagnosis mistakes common good constitutionalism for standard police powers analysis rooted in social contract theory. Another claimed compatibility with, and ultimate justification in, John Stuart Mill's "harm principle." A third commented cryptically, "Harlan was no Hercules, but this is the Constitution in 2020."