COULD YA BELIEVE: 1905 Smallpox Law Good Enough to Close the Country

Evidently, 1905 was a very good year for the ends justifying the means. 

Twice this year, faux conservative U.S. Chief Justice John Roberts has invoked Supreme Court decisions from 1905 that have sparked partisan rulings.

Justice Roberts may deny that the Supreme Court is “becoming politicized and that the justices’ decisions are guided by their partisan affiliation,” but the high court is slammed with criticism because of recent rulings in response to the Corona Virus, which it seems, beyond Bill Gates, the Supreme Court is its biggest fan.

Lawyers and the citizenry are questioning the validity of using 115-year-old decisions to support the nationwide shutdown which happen to directly violate the constitutional rights of individuals being used in partisan fashion.

Three cases in New York State that questioned using a century’s-old law to shut down the economy had actually been moving up the appeals process until Justice Roberts came out with his definitive opinion that 1905’s “Jacobson vs. Massachusetts” was where the buck would stop on the question.

This 115-year-old ruling, from a time before gasoline engines, gave the state a wide berth in mandates during this most modern of pandemics. (And while the pox of the smallpox may have been real, reading the press clipping that begins to describe the original case just goes to show that death from the death, just like today, was coming in ones and twos, not the hundreds millions we keep citing from history.)

Stemming from a 1905 lawsuit over mandatory vaccinations to prevent the smallpox from spreading, the Supreme Court deferred to the Commonwealth of Massachusetts decision against the rights of the individual, creating a separate standard for “evaluating constitutional challenges to state action designed to combat an epidemic,” according to Federal Judge David Hurd, who soundly rejected a constitutional challenge to New York’s quarantine restrictions for travelers deferring to that precedent.

In that case, motorists entering New York City are being questioned at COVID-19 checkpoints by NYC sheriff deputies mandating that they provide information as to where they are going, where they are from, and what the purpose of their travel is. 

Under Gov. Andrew Cuomo’s mandatory travel quarantine order, travelers from the nation’s red states are required to self-quarantine for two weeks prior to entry, while travelers from blue states can freely go about their business.


“Jacobson was decided just after the turn of the last century, at a time when medical science was in its adolescence if not still in its infancy. Because it endorses an approach to constitutional analysis that has fallen out of fashion, it is admittedly strange—and even a little alarming—to discover that Jacobson is still considered the right tool for evaluating state action taken to protect public health,” Judge Hurd wrote. 

“Yet unless and until the Supreme Court revisits Jacobson and fashions a test that demands a more particularized showing from public health officials in light of the unbelievable medical achievements of the twenty-first century, it remains a complete roadblock to (the plaintiff’s) claims.”

In the decision of Jacobson vs. Massachusetts, the plaintiff cited proof that there were many in the medical community who believed the smallpox vaccine would not stop spread the disease. This proof was rejected by the Court, which noted that Jacobson’s opinions were “more formidable by their number than by their inherent value”

Oh, what fun! A smallpox vaccination party.

In another case, Sean McCarthy, owner of Blush, a Long Island strip club, filed a lawsuit last month against Gov. Andrew Cuomo and the federal government, arguing his constitutional rights were violated by shutdown orders.

The Commack strip club has been closed since March 16 due to Corona Virus restrictions.

McCarthy said in the lawsuit he has since suffered “catastrophic financial losses.” He filed for a preliminary injunction May 26 seeking to reopen his club. He argued that the Small Business Administration had discriminated against Blush under the Payroll Protection Program, citing a policy of denying loans to businesses that provide “live performances of a prurient sexual nature.”

McCarthy argued that keeping the doors open would keep his workers employed. 

The governor’s orders “constituted a breach of constitutional duty” and have caused McCarthy “immediate and irreparable harm and actual and undue hardship,” claims the federal lawsuit, filed by Joseph Murray and Peter Crusco in the Eastern District of New York.

U.S. District Judge Allyne R. Ross, a United States district judge, denied McCarthy’s request for preliminary relief, while the Roberts ended their ability to press on with the case. 

Peter Crusco, the former Executive Assistant District Attorney and Chief of Investigations for for legendary Queens DA Richard A. Brown, and now in private practice representing McCarthy, told QMN that far beyond the rights of the strip club, the case really is about using that 1905 law as precedent to shut down their argument.

The Blush lawsuit alleges 11 causes of action; nine were brought against Cuomo where the plaintiffs argued that the governor violated constitutional rights protecting against unreasonable seizures, the freedoms of speech and assembly, the Fifth Amendment’s takings clause, and due process and equal protection clauses under the Fourteenth Amendment.

The Fourteenth Amendment says that nothing can block a citizen’s rights “to life, liberty and pursuit of happiness,” and that means the 1905 smallpox law can’t either.

Crusco said the alternative offered to Blush to keep the establishment open — serve food to patrons outside (“people are not coming there for the food…”) and feature “the ladies” but recorded on TV screens — was absurd.

Maybe Blush could have offered to have their dancers perform in the parking lot while only wear cloth face masks; in the end, the venue remains closed, its employees indefinitely out of work.

In a third case, a lawsuit filed jointly by five racetracks across New York was dismissed by U.S. District Court Senior Judge Lawrence E. Kahn.

The plaintiffs include Airborne Speedway in Plattsburgh, Albany-Saratoga Speedway in Malta, Fonda Speedway in Fonda, Genessee Speedway in Batavia and Lebanon Valley Speedway in West Lebanon.

That suit alleged that Cuomo’s executive order barring spectators at motorsports venues violates several constitution protections, including the First Amendment violation for infringement on the right to assemble.

However, Kahn rejected the constitutional grounds of the complaint, citing, you guessed it, the 1905 Jacobson vs. Massachusetts ruling. 

He wrote that the Supreme Court’s ruling required lower courts to “afford politically accountable officials significant discretion in striking the appropriate balance during pandemics.”

Even though the plaintiffs compared track spectators to demonstrators and rioters who protested unrestricted nationwide, Kahn wrote, “The court does not find the requisite rough equivalence between private, capacity-limited sports venues on one hand and attendees of public protests on the other.”

So far, more than 3,900 lawsuits related to COVID-19 have been registered in state and federal courts since the arrival of the virus in the U.S, according to a database maintained by law firm Hunton Andrews Kurth.

The cases range from complaints lodged against nursing homes and objections to prison conditions to workplace safety claims, requests for university tuition reimbursements, and, above all, constitutional challenges to state and local lockdown policies, according to the database.

 Beyond using a 1905 law to keep the economy, Justice Roberts was also the swing vote that decided against cases in California and Nevada to open churches during the pandemic.

By the slimmest of margins, 5-4, the two religious liberties cases have found adverse decisions from the high court.

In the California religious liberties case—South Bay United Pentecostal Church v. Newsom, decided on May 29 “revealed deep, dangerous and familiar ideological divisions on the court, with Chief Justice John Roberts yet again casting the tribunal’s swing vote.” 

After the Nevada case, Calvary Chapel v. Sisolak on July 24th, Republicans voiced their disapproval with the Court’s adverse decision. Texas Senator Ted Cruz tweeted that Roberts had “abandoned his oath.”

That time when Supreme Court Justice Roberts was photographed with a briefcase in Malta.

And if you thought 1905 was a good year for pandemic rulings, Justice Roberts also reached back to that fine year during U.S. President Donald J. Trump’s surreal impeachment trial.

Roberts invoked the 1905 Swayne decision as he admonished both sides following a dust up between House impeachment manager Jerry Nadler and Trump attorney Jay Sekulow. 

“In the 1905 Swayne trial, a senator objected when one of the managers used the word ‘pettifogging,'” he added, referring to Judge Charles Swayne’s 1904 impeachment and 1905 Senate acquittal. “And the presiding officer said the word ought not to have been used. I don’t think we need to aspire to that high a standard but I do think those addressing the Senate should remember where they are.”

“I think it is appropriate at this point for me to admonish both the House managers and the president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body. One reason it has earned that title is because its members avoid speaking in a manner and using language that is not conducive to civil discourse,” Roberts said.

According to Webster’s, Pettifogging is dishonest or unethical in insignificant matters; meanly petty.” Sounds like the past 3 years, 9 months — expect 72 days more of it til the election.


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  1. Your criticism of reliance on Jacobson is warranted, but based on the wrong reason.

    The case was decided against Jacobson because the Massachusetts legislature had passed a law authorizing smallpox vaccinations. Jacobson did not question the constitutionality of the law within Massachusetts, but instead tried to argue about the science behind vaccinations. The court rejected his arguments based on the very reasonable argument that an unelected judicial body should not second-guess complex decisions that a legislature made after careful deliberation. The Jacobson court left the door open for constitutional challenges to state legislation, and the Supreme Court has developed systematic ways to analyze such questions as they related to specific constitutional rights.

    In South Bay, Justice Roberts dramatically misrepresented the situation in Jacobson (and the other cases he cited) by suggesting that public health and safety are entrusted “to the politically accountable officials of the States.” In fact, the Jacobson court clearly said the “police power” of a state resides in the legislature of a state. The Jacobson court deferred to the Massachusetts legislature for two reasons. First, the legislature is politically accountable, but more importantly, because it is a deliberative body with multiple points of view that can be presumed to fairly represent the interests of all the state’s citizens.

    Obviously state Governors and Public Health Directors are not deliberative bodies of people. Moreover, in many states, such as my state Oregon, administrative officials are explicitly barred from exercising legislative powers by the state constitution. In such states, the conditions under which Jacobson was decided simply do not apply, although no one seems to have argued that point yet.

    Moreover, few if any voters consider the ability of their governor to manage an emergency when they vote for the Governor. Since most Governors hold office for several years at a time, and most state recall processes are quite complex, Governors cannot easily be removed from office if the voters become unhappy with their orders during an emergency. Public health directors are not elected, and the voters have no control at all over them. Many emergency laws have been on the books for years and current voters may have no idea what they actually say. Most states appear to require a super majority within the legislature to end an emergency, because the legislature must be able to over-ride a Governor’s veto.

    Under such conditions, it makes no sense at all to claim as Justice Roberts did in South Bay, that there is any public accountability in executives/administrators who exercise almost unlimited power at a time when the legislature is actually able to meet.


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