Image credit. "The blunt truth is that even libertarians and other defenders of small government should support the basic constitutional framework that gives public officials extensive powers to control against infection and disease by devices such as quarantine and vaccination."
Writes Richard Epstein:
The current struggles over sound vaccine policy raise a tension between public health on the one hand and competing versions of individual liberty on the other. This conflict was, if anything, more acute a century ago when infectious diseases cut a wide path for which vaccines and other treatments provided only a limited response. The main constitutional lens through which these issues were viewed at the time was one of police power. This all-pervasive notion has no explicit textual authorization in the Constitution. But a moment’s reflection makes it clear that the Constitution’s various provisions protecting individual liberty must at times give way to government control in response to health hazards.
From the earliest times, therefore, the police power has always been construed to allow public officials to take strong action against individuals who posed threats to the health of others by the spread of communicable diseases. In perhaps the most famous statement of this sort, Justice John Marshall Harlan, himself a champion of limited government, wrote in the 1905 case of Jacobson v. Massachusetts that while the Supreme Court had refrained from defining the limits of police power, it had “distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description,’” and then proceeded to sustain a Cambridge Massachusetts compulsory vaccination statute against smallpox, a disease for which Edward Jenner had developed an effective vaccine as early as 1796.
The basic soundness of the constitutional recognition of a police power to deal with communicable diseases is beyond dispute. Even in a free state, quarantines are the only reliable remedy to protect the health of the public at large from the spread of disease. It is sheer fantasy to think that individuals made ill could bring private lawsuits for damages against the parties that infected them, or that persons exposed to imminent risk could obtain injunctive relief against the scores of persons who threaten to transmit disease. The transmission of disease involves hidden and complex interconnections between persons that could not be detected in litigation, even assuming that it could be brought in time, which it cannot. Public oversight should be able to achieve the desired end at a far lower cost.
In making his broad defense of the police power, Justice Harlan did not mean to eradicate the substantive protections otherwise afforded by the Constitution. Thus, only three years later in Adair v. United States, he struck down a mandatory collective bargaining statute on the ground that its interference with the contractual liberties of the employer and individual employees could not be justified on grounds of either health or safety.
That said, the categorical defense of compulsory vaccination statutes raises serious questions of its own. [Emphasis added.]
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