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• Am J Public Health
• v.95(4); Apr 2005

Jacobson v Massachusetts : It’s Not Your Great-Great-Grandfather’s Public Health Law

Wendy k. mariner.

The authors are with the Department of Health Law, Bioethics and Human Rights, School of Public Health, School of Law, and School of Medicine, Boston University, Boston, Mass.

George J. Annas

Leonard h. glantz.

Jacobson v Massachusetts , a 1905 US Supreme Court decision, raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty. We examined conceptions about state power and personal liberty in Jacobson and later cases that expanded, superseded, or even ignored those ideas.

Public health and constitutional law have evolved to better protect both health and human rights. States’ sovereign power to make laws of all kinds has not changed in the past century. What has changed is the Court’s recognition of the importance of individual liberty and how it limits that power. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.

“The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” — Missouri v Holland 1

ONE HUNDRED YEARS AGO, in Jacobson v Massachusetts , the US Supreme Court upheld the Cambridge, Mass, Board of Health’s authority to require vaccination against smallpox during a smallpox epidemic. 2 Jacobson was one of the few Supreme Court cases before 1960 in which a citizen challenged the state’s authority to impose mandatory restrictions on personal liberty for public health purposes. What might such a case teach us today? First, it raises timeless questions about the power of state government to take specific action to protect the public’s health and the Constitution’s protection of personal liberty. What limits state power? What does constitutionally protected liberty include? Second, answers to these questions can change as scientific knowledge, social institutions, and constitutional jurisprudence progress. A comparison of answers to these questions 100 years ago and today shows how public health and constitutional law have evolved to better protect both health and human rights.

Jacobson was decided in 1905, when infectious diseases were the leading cause of death and public health programs were organized primarily at the state and community levels. The federal government had comparatively little involvement in health matters, other than preventing ships from bringing diseases such as yellow fever into the nation’s ports. 3 Few weapons existed to combat epidemics. There was no Food and Drug Administration (FDA), no regulation of research, and no doctrine of informed consent. The Flexner Report was 5 years in the future, medicine would have little to offer until sulfonamides were developed in the 1930s, and most vaccines would not be available for almost half a century. 4, 5 Hospitals were only beginning to take their modern form, 6 and people who had mental illnesses were often shut away in asylums. 7, 8 Contraception and interracial marriage were crimes, 9 women did not have the right to vote, and Jim Crow laws prevented African American men from exercising constitutional rights that it took the Civil War to win. 10

Today, smallpox has been eradicated. The major causes of death are chronic diseases and trauma, which are influenced by multiple factors, including environment, occupation, socioeconomic status, race/ethnicity, diet, behavior, and political inequality. 11, 12 Immunizations prevent many infectious diseases, and new outbreaks are most likely to result from global travel, laboratory accidents, or even criminal acts. 13 Scientific advances have produced an array of health care facilities, drugs, vaccines, and technologies to prevent and treat health problems. Much of the responsibility for regulating the safety of the workplace, air, water, food, and drugs has shifted to the federal government. 14 Women have the right to vote and to decide whether to have children. Patients have the right to refuse medical treatment, 15 and everyone has the right to be free from arbitrary or discriminatory detention. 16

The states’ sovereign power to make laws of all kinds has not changed during the past century. What has changed is the US Supreme Court’s recognition of the importance of individual liberty and how it limits that power. Additionally, states have changed how they use their power and what they regulate as new health problems and solutions emerge. In this article, we discuss these changes by examining (1) the conceptions of state power and personal liberty discussed in Jacobson and (2) 20th-century cases that expanded, superseded, or even ignored those concepts. Finally, we speculate about how challenges to analogous public health laws would be decided today in light of the evolution of science and constitutional law.

JACOBSON V MASSACHUSETTS

As the 20th century began, epidemics of infectious diseases such as smallpox remained a recurrent threat. A Massachusetts statute granted city boards of health the authority to require vaccination “when necessary for public health or safety.” 17 In 1902, when smallpox surged in Cambridge, the city’s board of health issued an order pursuant to this authority that required all adults to be vaccinated to halt the disease. The statutory penalty for refusing vaccination was a monetary fine of $5 (about $100 today). There was no provision for actually forcing vaccination on any person.

Henning Jacobson refused vaccination, claiming that he and his son had had bad reactions to earlier vaccinations. The Massachusetts Supreme Judicial Court found it unnecessary to worry about any possible harm from vaccination, because no one could actually be forced to be vaccinated: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.” 18 Jacobson was fined, and he appealed to the US Supreme Court.

The Supreme Court had no difficulty upholding the state’s power to grant the board of health authority to order a general vaccination program during an epidemic. No one disputed, and the Constitution confirmed, that states retained all the sovereign authority they had not ceded to the national government in the Constitution. 19– 23 There had never been any doubt that, subject to constitutional limitations, states had authority to legislate with respect to all matters within their geographic boundaries, or to police their internal affairs, which Chief Justice Marshall referred to as the “police power.” 24– 26 During the 1800s, the Supreme Court confirmed that this power included the power to pass laws that promote the “health, peace, morals, education and good order of the people.” 27– 29 Most early Supreme Court cases that involved state police powers, however, were disputes over which level of government—state or federal—had jurisdiction to regulate or tax a commercial activity. 30– 37 Jacobson was the rare case in which a state’s jurisdiction was not questioned—because no one claimed that the federal government should control a local smallpox epidemic. Instead, the question was whether the state had overstepped its own authority and whether the sphere of personal liberty protected by the Due Process Clause of the 14th Amendment 38 included the right to refuse vaccination.

Justice Harlan stated the question before the Court: “Is this statute . . . inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?” 2 (p25) Harlan confirmed that the Constitution protects individual liberty and that liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint”:

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. 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. 2 (p29)

Thus, the more specific questions were whether the safety of the public justified this particular restriction and whether it was enforceable by reasonable regulations. The Court answered yes to both questions. It noted that the vaccination law applied “only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety.” 2 (p27) The board of health was qualified to make that judgment, and, consistent with its own precedents, the Court said that it was the legislature’s prerogative to determine how to control the epidemic, as long as it did not act in an unreasonable, arbitrary or oppressive manner. 2, 39, 40 Vaccination was a reasonable means of control: “The state legislature proceeded upon the theory which recognized vaccination as at least an effective if not the best known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population.” 2 (p31)

The Court nonetheless concluded with a note of caution:

The police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. 2 (p38)

For example, it noted that the law should not be understood to apply to anyone who could show that vaccination would impair his health or probably cause his death.

In most respects, Jacobson was an easy case. 41 The decision held that a state may require healthy adults to accept an effective vaccination when an existing epidemic endangers a community’s population. As with all court decisions, what this “means” is a matter of interpretation. Jacobson may be what Sunstein called a narrow and shallow decision—narrow because it is not intended to apply to a broad range of legislation, and shallow because it does not explicitly rely on a general theory of constitutional interpretation to justify its result. 42 People who have quite different world views or philosophies can accept the decision because it need not require the same result for different laws or in different circumstances. Not surprisingly, judges and scholars emphasize different language in the opinion to support different interpretations. 43– 46

JACOBSON’S INFLUENCE DURING THE FIRST HALF OF THE 20TH CENTURY

The Court described police power as essentially unlimited except by provisions of the Constitution and the state’s own constitution. The federal Constitution created federal powers; it did not create state powers. The Court did not attempt to specify what the police power covers, because it is essentially the power of a sovereign state to make and enforce laws. 21 Thus, the real question was, and continues to be, what limits sovereign state power?

The Court confirmed that the 14th Amendment protected individual liberty, which limits state power. It did not attempt to specify everything included in the definition of liberty, because liberty is a broad concept. Beyond freedom from physical restraint or bodily invasion, it includes freedom of thought, belief, expression, and decisionmaking. The constitutional question was whether the state could justify restricting 1 aspect of liberty (the liberty to refuse vaccination). Without justification, the law is unconstitutional. With justification that meets constitutional standards, the restriction on liberty does not violate the Constitution.

The Court mentioned 2 justifications for the Massachusetts law. First, it found that the state may be justified in restricting individual liberty “under the pressure of great dangers” to “the safety of the general public.” The statute, by its terms, encroached on liberty only when “necessary for the public health or safety.” 2 (p29) The smallpox epidemic proved the danger to the public. Second, by using the language of earlier decisions, the Court said that laws should not be arbitrary or oppressive. It also suggested that the state should use means that have a “real or substantial relation” to their goal. 2 (p31) In this case, vaccination was a reasonable means to achieve the goal of controlling the epidemic. It was not an arbitrary choice; it had a real and substantial relation to preventing the spread of smallpox.

These standards reflect the classic principle sic utere tuo ut alienum non laeda —so use your own that you do not injure another man’s property—that the Court had applied in earlier cases. 23, 26 One might have expected that these standards would be used to judge the validity of laws that restrict personal liberty. In later cases, however, the Court did not necessarily require states to meet these standards. Instead, it sometimes ignored the standards in favor of a more general principle that permitted more discretionary use of state power. For example, in 1922, in Zucht v King , the only other US Supreme Court decision that addressed immunizations, the Court upheld a city ordinance that prohibited anyone from attending a public or private school without a certificate of smallpox vaccination. 47 Rosalyn Zucht, who refused vaccination, challenged the ordinance as unnecessary after she was excluded from school. The Court did not mention the questions of whether smallpox posed any danger, whether vaccination was necessary, or whether the ordinance was arbitrary or oppressive. Its 3-paragraph opinion noted simply that states can grant cities broad authority to decide when to impose health regulations.

In 1927, in Buck v Bell , the US Supreme Court upheld a Virginia law that authorized the involuntary sterilization of “feeble minded” persons in state institutions. 48 Theories of eugenics enjoyed some medical and scientific support during the 1920s and 1930s. 49 The Court found that the law served the public health and welfare because “mental defectives” would produce degenerate criminal offspring or imbeciles who “sap the strength of the state.” 48 (p207) In a chilling opinion, Justice Oliver Wendell Holmes concluded:

Society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v Massachusetts , 197 US 11. Three generations of imbeciles are enough. 48 (p207)

Jacobson was cited as support for the general principle that public welfare was sufficient to justify involuntary sterilization. The decision extended the police power’s reach from imposing a monetary penalty for refusing vaccination to forcing surgery on a young woman against her will and depriving her of the ability to have children. 50 The Court did not require the state to demonstrate that sterilization was necessary and not arbitrary or oppressive. This suggests that the Court did not view Jacobson as having required any substantive standard of necessity or reasonableness that would prevent what today would be considered an indefensible assault. The Court did not even consider that Carrie Buck might have any right to personal liberty. With the Court’s imprimatur of involuntary sterilization laws, more than 60 000 Americans, mostly poor women, were sterilized by 1978. 51

Such cases diluted the reasons that justified restrictions on personal liberty. The Court did not always say that danger meant an immediate threat to the public at large, and it accepted a broader range of means as reasonable. The Court generally accepted, with little analysis, the legislature’s judgment of what should be done to protect public health and safety, at least where only individual liberty was affected. 52– 54 In contrast, when state laws regulated commercial businesses and economic relationships, the Court typically required a close fit between goals and means. 55 In Lochner v New York , which was decided 2 months after Jacobson, the Court struck down a New York state statute that limited the working hours of bakers to 60 hours per week, because it was “an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to his labor.” 56 The period between 1905 and 1937 is sometimes called the Lochner era, because the Court struck down many laws that regulated private economic relationships, such as labor laws, as a violation of property rights (also protected by the Due Process Clause) and freedom of contract. 43 These decisions reflected a prevalent belief that private property and a laissez-faire economic order were essential to preserve individual liberty and economic opportunity. 22, 23, 26, 57

By 1937, the Depression had shattered the belief that individuals could always take care of themselves, and the Roosevelt Administration pressed for reform legislation. 58 An increasing number of justices and scholars recognized that economic survival and personal freedom required some affirmative government action to provide services and to regulate private industry. 59 Thus, even seemingly private decisions could be viewed as affected by the public interest and subject to regulation. 60 The Court abandoned its Lochner jurisprudence and ultimately overruled or ignored decisions from that era. 61– 63 The Court began to routinely uphold state and federal legislation, and it accepted any plausible means a legislature chose to pursue legitimate ends, unless the law violated the Constitution. 64– 66

The Court then faced the problem of deciding how constitutional provisions limited government action. The Bill of Rights describes individual rights in broad terms, such as freedom of speech and due process of law. In a democracy that has no official religion or ideology, any interpretation of such abstract concepts could be attacked as merely the justices’ personal philosophy. 67 Yet, if they upheld all laws that are purported to serve the common good, such as involuntary sterilization, government power would be unlimited—the definition of tyranny. 68 There was agreement that the Constitution was intended to prevent tyranny by government and that the Bill of Rights (and later amendments) were added to forbid majority rule on matters of fundamental importance. 69 Thus, the Court began to recognize a carefully limited hierarchy of individual rights that deserved protection from government invasion. 70, 71 The Court still struggles with the problem of finding legitimate bounds on government powers. Nevertheless, it has consistently relied on constitutional rights to limit state power.

MODERN CONSTITUTIONAL LAW: RECOGNITION OF HUMAN AND CIVIL RIGHTS

During the second half of the 20th century, the US Supreme Court recognized that the liberty protected by the 14th Amendment included most of the rights guaranteed by the Bill of Rights. 43 Individuals were protected from an abuse of state and federal power. World War II and the Nazi atrocities spurred recognition of human rights, as exemplified by the Nuremberg Code. 72 In the United States, the civil rights movement of the 1950s challenged the assumption that state legislatures could be presumed to act in the best interests of all their citizens in a way that had not been seen since the Civil War. The civil rights movement changed the social structure with as much force as the New Deal changed the economic structure. Brown v Board of Education , 73 which struck down state-imposed school segregation, marked a turning point when it signaled the Court’s new willingness to look closely at what state laws require or forbid and to strike down laws that invidiously discriminated against African Americans. 74 During the next 2 decades, women, people with mental illnesses, and prisoners followed the example of African Americans and challenged laws that treated them unfairly.

The Court created an explicit hierarchy of rights and tests for determining whether laws justifiably restricted different constitutionally protected rights, such as freedom from self-incrimination 75 and unreasonable search and seizure. 76 For constitutionally protected liberty, the Court recognized that some aspects of liberty, such as freedom from arbitrary detention and bodily intrusion, are more important than others, such as freedom to use property or money. 77– 79 The most important, which were deemed “fundamental,” were subjected to the “strict scrutiny” test: the Court determined (1) whether the government could prove that challenged law served a purpose so “compelling” that it was justified in taking action and (2) whether what the law required or forbade was “narrowly tailored” to achieve that purpose and did so with as little interference with individual liberty as possible. 14 Few rights qualify as fundamental. They include freedom of speech and association, 80, 81 voting, 82 freedom from arbitrary physical restraint, 83 and decisions about marriage, 84, 85 contraception, 86– 88 procreation, 89 family relationships, 90, 91 child rearing, and education. 92, 93 For example, a Virginia law that made interracial marriage a felony was struck down in 1967 because “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” 84

Aspects of liberty that do not qualify as fundamental are subjected to “rationality review,” a test that continues the Court’s earlier deference to the legislature. Laws that restrict nonfundamental liberty rights need only be “rationally related” to any “legitimate state interest,” and the Court continues to accept almost any plausible reason as justification. Laws that regulate industry to reduce risks to health or safety are easily justified under this test. Some justices and scholars have criticized this 2-tiered view of rights, because it is not sensitive to the importance of some aspects of personal liberty that do not qualify as fundamental. 94, 95 In some circumstances, the Court has demanded that the state provide a higher level of justification for limiting personal liberty, even when it does not explicitly call the right fundamental. 96, 97 For example, in cases that involve civil commitment or involuntary hospitalization for mental illness, the Court has required the state to prove—by clear and convincing evidence—that a person is mentally ill and that the illness renders the person dangerous to others. 83, 88, 98– 100 Similarly, the Court has generally recognized the rights of individuals to make decisions about medical treatment, including the right to refuse life-saving treatment. 101– 104 Today, decisions to participate in research or to use experimental and investigational drugs or “therapies” also require the individual’s informed consent, even in the military. 105 Most recently, the Court found that states cannot justify restricting personal liberty solely on moral grounds. In Lawrence v Texas , the Court struck down a Texas statute that made private anal sex between consenting same-sex adults a crime because the law served no legitimate state purpose. 91

At the same time, the ways in which government achieves its goals has been changing. Modern biomedical and behavioral sciences, epidemiological research, and information technology offer tools for protecting health that were not available during the first half of the 20th century. Public health programs have drawn upon scientific advances to create more voluntary services for a more diverse population and new and different health problems. 106, 107 Responsibility for public health has spread from local community officials to cooperation with private organizations, the federal government, and even international organizations. As similar health problems increasingly affect people all across the country, the federal government has assumed substantial regulatory authority, just as it did for civil rights protection during the 1960s and environmental protection during the 1970s. 108– 112

During the past decade, the US Supreme Court has recognized some limits to the federal government’s constitutional authority to regulate interstate commerce when it intrudes on matters traditionally considered part of the police power. 113– 116 But, despite rhetoric about the importance of state sovereignty, its decisions have not expanded state power. 43, 117 The power of a sovereign state can hardly be increased. Instead, the Court has struck down federal remedies for individuals who suffer from abuses of state power. 118, 119

Even with this caveat, the federal government remains a major player in national public health matters. In addition to direct regulation under the Commerce Clause, it wields considerable influence over state and local public health activities with its power of the purse. In practice, therefore, the states’ power is exercised in a somewhat more restricted sphere of human and commercial activity. Yet within this sphere, current constitutional law recognizes few limits on the states’ police power, except in the rare circumstances when it unjustifiably restricts important personal liberties.

APPLYING MODERN CONSTITUTIONAL LAW

Given the changes in constitutional law, public health, and government regulation, what kinds of public health laws that address contagious diseases might be constitutionally permissible today? A law that authorizes mandatory vaccination during an epidemic of a lethal disease, with refusal punishable by a monetary penalty, like the one at issue in Jacobson , would undoubtedly be found constitutional under the low constitutional test of “rationality review.” However, the vaccine would have to be approved by the FDA as safe and effective, and the law would have to require exceptions for those who have contraindications to the vaccine. A law that authorizes mandatory vaccination to prevent dangerous contagious diseases in the absence of an epidemic, such as the school immunization requirement summarily upheld in 1922, also would probably be upheld as long as (1) the disease still exists in the population where it can spread and cause serious injury to those infected, and (2) a safe and effective vaccine could prevent transmission to others.

The legitimacy of compulsory vaccination programs depends on both scientific factors and constitutional limits. Scientific factors include the prevalence, incidence, and severity of the contagious disease; the mode of transmission; the safety and effectiveness of any vaccine in preventing transmission; and the nature of any available treatment. Constitutional limits include protection against unjustified bodily intrusions, such as forcible vaccination of individuals at risk for adverse reactions, and physical restraints and unreasonable penalties for refusal.

Ordinarily, there would be no justification for compulsory vaccination against a disease like smallpox that does not exist in nature. The Centers for Disease Control and Prevention’s recent attempt to persuade health care workers to voluntarily accept smallpox vaccination failed, largely because of concerns about the risks of vaccination in the absence of a credible threat of disease. 120 Protecting the country against a terrorist’s introduction of smallpox would fall within federal jurisdiction over national security. The intentional introduction of smallpox also could be a crime under both federal and state law. Assuming that an FDA-approved vaccine were available, there would be little, if any, practical need for a mandatory vaccination law. People at risk would undoubtedly demand vaccine protection, just as they clamored for ciprofloxacin after the (non-contagious) anthrax attacks in 2001. 121 The real problem in such cases is likely to be providing enough vaccine in a timely manner. The same may be true for a natural pandemic caused by new strains of influenza, for example. On the other hand, if a vaccine were investigational, compulsory vaccination would not be constitutional, and people would be less likely to accept it voluntarily. 122, 123

Likewise, a state statute that actually forced people to be vaccinated over their refusal, such as Florida’s new “public health emergency” law, would probably be an unconstitutional violation of the right to refuse treatment. 124 In the case of Nancy Cruzan, the Court assumed, without having to decide, that competent adults have a constitutionally protected right to refuse any medical treatment, including artificially delivered care such as nutrition and hydration. 102 Even the state’s legitimate interest in protecting life cannot outweigh a competent adult’s decision to refuse medical treatment. 104, 125 Today, a general interest in the public’s health or welfare could not justify sterilizing Carrie Buck against her will. Since Griswold v Connecticut , the Court has repeatedly struck down state laws that interfere with personal reproductive decisions. All competent adults have the right to refuse surgical sterilization. The Court also said that people who cannot make decisions for themselves because they are legally incompetent are entitled to have their wishes respected and carried out. 102 If their personal wishes are unknown, they must be treated in accordance with their own best interests, not the interests of the state.

Such cases underscore an important difference between laws that are intended to prevent a person from harming other people, which can be a justified exercise of police power, and laws that are intended to protect only the health of the individual herself, which are unjustified violations of liberty. A committee appointed by the British government is reportedly considering a proposal to vaccinate children with vaccines that block the highs produced by cocaine, heroin, and nicotine. 126, 127 Which category might this proposal fit? Drug addiction is a public health problem 128 but not a contagious disease. It is unlikely that the possibility of a person becoming addicted to drugs in the future would be sufficient to warrant compulsory vaccination, even if it is assumed that the vaccine would not affect ordinary intellectual or emotional function. The modern public health approach would be to provide education about drug abuse or to offer safe and effective medications in a voluntary treatment program.

Even in an emergency, when there is a rapidly spreading contagious disease and an effective vaccine, the state is not permitted to forcibly vaccinate or medicate anyone. The constitutional alternative is to segregate infected and exposed people separately to prevent them from transmitting the disease to others. Here again, modern constitutional law demands a high level of justification. The Supreme Court has long recognized that “involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law,” 98 and some justices have called freedom from such confinement fundamental in nature. 83 While it has not decided a case that involved isolation or quarantine for disease, it has held that civil commitment for mental illness is unconstitutional unless a judge determines the person is dangerous by reason of a mental illness. 83, 98 Assuming, as most scholars do, that the law governing commitment to a mental institution also applies to involuntary confinement for contagious diseases, the government would have the burden of proving, by “clear and convincing evidence,” that the individual actually has, or has been exposed to, a contagious disease and is likely to transmit the disease to others if not confined. 129, 130

When the HIV epidemic began in 1981, these principles from the 1970s reminded legislators at both the state and federal levels that people could not be involuntarily detained simply because they had HIV infection. 131 Only a few individuals who imminently threatened to infect other people by deliberate or uncontrollable behavior would meet the constitutional test. More recently, the same approach has been used by lower courts in some cases that involved people who had active, contagious tuberculosis. 132, 133 Involuntary commitment has been used for a small number of people who were unable to avoid contact with others, typically because of mental illness, substance abuse, or homelessness. 134– 137 In practice, people who can stay in their own homes and have access to adequate care are virtually never subjected to involuntary commitment. They do not need to be committed for effective public health protection. The need for coercive measures like compulsory isolation can be seen as evidence of a failure to provide the public health programs that could have prevented or treated disease. 138– 140 For example, the rise of tuberculosis in New York City during the 1980s, and the city’s increased use of involuntary isolation for people who had untreated tuberculosis, owes more to the collapse of the city’s treatment programs than to the value of involuntary commitment. 141, 142

Today, involuntary isolation and quarantine should be needed and used only in extremely rare cases. The most likely is where a new airborne infectious disease, such as severe acute respiratory syndrome (SARS), for which no treatment yet exists, enters the country. Yet, even with the SARS epidemic, there proved to be almost no need to compel isolation, and quarantine was almost exclusively done in the individual’s home. 143, 144 After all, laws that compel detention necessarily apply to the exceptional person, just as Henning Jacobson was in 1905. Most people were eager to take precautionary measures voluntarily. In Beijing, China, however, where the government was rumored to be planning a large-scale quarantine, almost 250 000 people fled, which increased the risk of spreading the disease. Indeed, historically, large-scale quarantines have had little positive effect on epidemics. 145

As a practical matter, major new epidemics or terrorist attacks are likely to be considered national emergencies. In such circumstances, overreactions are likely and constitutional rights may be trampled, regardless of established law, which is what happened when the military forced Americans of Japanese descent into internment camps during World War II. In 1944, Fred Korematsu’s detention in such a camp was upheld by the US Supreme Court in a decision that has been regretted ever since. 146 In an amicus curiae brief in the cases against the Bush Administration by individuals detained without charges at Guantánamo Bay in connection with the “war on terror,” Korematsu reminded the Supreme Court:

History teaches that, in time of war, we have often sacrificed fundamental freedoms unnecessarily . The Executive and Legislative Branches, reflecting public opinion formed in the heat of the moment, frequently have overestimated the need to restrict civil liberties and failed to consider alternative ways to protect the national security. 147

In 2004, however, the Court was no longer willing to give government “a blank check.” 148 It found that even individuals who were being held as presumed terrorists were entitled to constitutional due process protections. 148, 149

LESSONS FOR MODERN PUBLIC HEALTH

One hundred years after Jacobson , neither public health nor constitutional law is the same. Programs essential to today’s public health, such as those that regulate hazardous industries and products and that provide medical care, which would have been struck down in 1905, are routinely upheld today because they serve a legitimate public purpose and do not interfere with personal liberty. In contrast, deprivations of liberty that might have been upheld in 1905 would be struck down today. Public health now has better tools at its disposal: better science, engineering, drugs and vaccines, information, and communication mechanisms for educating the public.

The history of US Supreme Court decisions about states’ power to restrict personal liberty shows the different ways in which states’ power can be characterized. At bottom, however, all doctrinal interpretations begin with 1 of 2 presumptions: (1) the state has complete power to do anything that is not expressly prohibited by the federal or its own state constitution, or (2) the state has only those powers granted to it by the people or that constitute an essential aspect of sovereignty for which governments are formed. 150, 151 Although traces of both views can be seen in the opinions of different justices, the Court has generally adopted the first view: the Constitution provides the only limit on state power. Thus, the Court’s interpretation of what counts as a constitutional right assumes extraordinary importance. As Justice Charles Evans Hughes noted, “We are under a Constitution, but the Constitution is what judges say it is. . . .” 152 (p199)

During the past decade, the Court has been reluctant to recognize constitutional protection for new aspects of liberty. Some scholars and conservative justices have argued that the Due Process Clause does not or should not protect personal liberty, such as the freedom to use contraception, and that states should have freer reign to impose restrictions on people. 153– 156 Others argued that, without such protection, we might as well not have a Constitution. 157 Although the Court is not likely to soon abandon what it has already recognized, the renewed debate makes clear how fragile constitutional rights might be.

At a time when terrorism threatens the entire world, people may be easily convinced that their security depends upon giving up their liberty. People also may believe laws that restrict personal freedom will not apply to them. History supports the view that coercive laws have largely targeted disadvantaged minorities. Quarantine laws were most often directed at disfavored immigrant groups. 39, 138 During the 19th and early-20th century, people who were poor, non-white, or recent immigrants were widely believed to live in filth, intoxication, violence, and debauchery or were often blamed for harboring and spreading disease. 158, 159 Such attitudes may have surfaced when the Boston Board of Health sent police officers to inoculate “tramps” against smallpox. Police reportedly held some men down and beat others to accomplish their task. 160 Although we may believe we are more enlightened today, similarly disfavored groups are targets of antiterrorism laws. 161

In an era of increasingly limited state funds, there is a danger that legislatures will turn to laws that restrict personal liberty as a substitute for providing the resources necessary for positive public health programs that actually prevent disease and improve health. Such symbolic “grandstanding” may be especially tempting for representatives whose reelection depends more on those who finance their campaigns than on the voters. 162 But it shifts responsibility for protecting the public health from the government to individuals and punishes those who are least able to protect themselves. The Bill of Rights was designed to protect individuals against abuses by the state, even when the abuses have the support of the majority. This is why constitutional protection of liberty remains so important.

One practical reason for protecting constitutional rights is that it encourages social solidarity. People are more likely to trust officials who protect their personal liberty. Without trust, public officials will not be able to persuade the public to take even the most reasonable precautions during an emergency, which will make a bad situation even worse. The public will support reasonable public health interventions if they trust public health officials to make sensible recommendations that are based on science and where the public is treated as part of the solution instead of the problem. Public health programs that are based on force are a relic of the 19th century; 21st-century public health depends on good science, good communication, and trust in public health officials to tell the truth. In each of these spheres, constitutional rights are the ally rather than the enemy of public health. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.

Peer Reviewed

Contributors All the authors contributed to the origination, research, and writing.

Human Participant Protection No protocol approval was needed for this study.

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The National Constitution Center’s Supreme Court Cases Library includes materials on the most influential Supreme Court cases in American history. To ensure nonpartisan rigor and ideological diversity, we enlisted a pair of leading scholars from diverse constitutional perspectives—Caroline Fredrickson and Ilan Wurman—to help choose the landmark cases included in the Supreme Court Cases Library . The Supreme Court Cases Library also includes landmark cases curated by the National Constitution Center team.

Constitutional Topics

Kennedy v. bremerton school district.

597 U.S. __ (2022)

Dobbs v. Jackson Women’s Health Organization

597 U.S. ___ (2022)

Roman Catholic Diocese of Brooklyn v. Cuomo

592 U. S. __ (2020)

Our Lady of Guadalupe School v. Morrissey-Berru

591 U.S. __ (2020)

Espinoza v. Montana Dept. of Revenue

Carpenter v. united states.

585 U.S. ___ (2018)

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

584 U.S.__ (2018)

Obergefell v. Hodges

576 U.S. ___ (2015)

Zivotofsky v. Kerry

Town of greece v. galloway.

572 U.S. 565 (2014)

Shelby County v. Holder

570 U.S. 529 (2013)

National Federation of Independent Business v. Sebelius

567 U.S. 519 (2012)

Citizens United v. Federal Election Commission

558 U.S. 310 (2010)

District of Columbia v. Heller

554 U.S. 570 (2008)

Lawrence v. Texas

539 U.S. 558 (2003)

Bush v. Gore

531 U.S. 98 (2000)

Printz v. United States

521 U.S. 898 (1997)

Washington v. Glucksberg

521 U.S. 702 (1997)

United States v. Virginia

518 U.S. 515 (1996)

United States v. Lopez

514 U.S. 549 (1995)

Employment Division v. Smith

494 U.S. 872 (1990)

Texas v. Johnson

491 U.S. 397 (1989)

Morrison v. Olson

487 U.S. 654 (1988)

Hazelwood School District v. Kuhlmeier

484 U.S. 260 (1988)

South Dakota v. Dole

483 U.S. 203 (1987)

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

467 U.S. 837 (1984)

Lynch v. Donnelly

465 U.S. 668 (1984)

Harlow v. Fitzgerald

457 U.S. 800 (1982)

Regents of the University of California v. Bakke

438 U.S. 265 (1978)

United States v. Nixon (The Tapes Case)

418 U.S. 683 (1974)

Frontiero v. Richardson

411 U.S. 677 (1973)

Roe v. Wade

410 U.S. 113 (1973)

Wisconsin v. Yoder

406 U.S. 205 (1972)

New York Times Co. v. United States (The Pentagon Papers Case)

403 U.S. 713 (1971)

Brandenburg v. Ohio

395 U.S. 444 (1969)

Tinker v. Des Moines Independent Community School District

393 U.S. 503 (1969)

Terry v. Ohio

392 U.S. 1 (1968)

Katz v. United States

389 U.S. 347 (1967)

Loving v. Virginia

388 U.S. 1 (1967)

Miranda v. Arizona

384 U.S. 436 (1966)

South Carolina v. Katzenbach

383 U.S. 301 (1966)

Griswold v. Connecticut

381 U.S. 479 (1965)

United States v. Seeger

380 U.S. 163 (1965)

Reynolds v. Sims

377 U.S. 533 (1964)

New York Times Company v. Sullivan

376 U.S. 254 (1964)

Sherbert v. Verner

374 U.S. 398 (1963)

Gideon v. Wainwright

372 U.S. 335 (1963)

Engel v. Vitale

370 U.S. 421 (1962)

Mapp v. Ohio

367 U.S. 643 (1961)

Sweezy v. New Hampshire

354 U.S. 234 (1957)

Brown v. Board of Education of Topeka

347 U.S. 483 (1954)

Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)

343 U.S. 579 (1952)

Terminiello v. Chicago

337 U.S. 1 (1949)

Everson v. Board of Education of Ewing Township

330 U.S. 1 (1947)

Korematsu v. United States

323 U.S. 214 (1944)

West Virginia State Board of Education v. Barnette

319 U.S. 624 (1943)

Wickard v. Filburn

317 U.S. 111 (1942)

Thornhill v. Alabama

310 U.S. 88 (1940)

Erie Railroad Co. v. Tompkins

304 U.S. 64 (1938)

United States v. Carolene Products Co.

304 U.S. 144 (1938)

West Coast Hotel Co. v. Parrish

300 U.S. 379 (1937)

Crowell v. Benson

285 U.S. 22 (1932)

Stromberg v. California

283 U.S. 359 (1931)

Olmstead v. United States

277 U.S. 438 (1928)

Whitney v. California

274 U.S. 357 (1927)

Gitlow v. New York

268 U.S. 652 (1925)

Pierce v. Society of Sisters

268 U.S. 510 (1925)

Abrams v. United States

250 U.S. 616 (1919)

Schenck v. United States

249 U.S. 47 (1919)

Lochner v. New York

198 U.S. 45 (1905)

United States v. Wong Kim Ark

169 U.S. 649 (1898)

Plessy v. Ferguson

163 U.S. 537 (1896)

Chinese Exclusion Case—Chae Chan Ping v. United States

130 U.S. 581 (1889)

The Civil Rights Cases

109 U.S. 3 (1883)

Strauder v. West Virginia

100 U.S. 303 (1880)

Reynolds v. United States

98 U.S. 145 (1879)

Minor v. Happersett

88 U.S. 162 (1875)

Bradwell v. The State of Illinois

83 U.S. 130 (1873)

The Slaughter-House Cases

83 U.S. 36 (1873)

Dred Scott v. Sandford

60 U.S. 393 (1857)

McCulloch v. Maryland

17 U.S. 316 (1819)

Marbury v. Madison

5 U.S. 137 (1803)

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The Supreme Court decision gutting public sector unions, explained

How to understand Janus v. AFSCME.

by Dylan Matthews

The Supreme Court has issued a sweeping ruling that dramatically undermines unions for teachers, firefighters, police officers, and other public employees throughout the United States.

The case, Janus v. AFSCME , involved a challenge to the practice of public sector unions charging “agency fees” to employees who decline to join the union but who still benefit from the deals it bargains. The fees are typically similar to, but a bit lower than, union dues. In a 5-4 opinion written by Justice Samuel Alito and joined by the four other conservative justices (Anthony Kennedy, Clarence Thomas, John Roberts, and Neil Gorsuch), the Court ruled that requiring public employees to pay agency fees is unconstitutional under the First Amendment.

The logic is that unions are political actors, and by allowing unions to charge agency fees, state governments are effectively compelling employees to financially support a political organization that they may or may not agree with. That, the plaintiffs claim, is compelled speech and thus unconstitutional.

Twenty-eight states already have “right to work” laws banning agency fees. Such laws create a free-rider problem: People don’t have to join unions or pay agency fees to get the unions’ benefits, so the unions lose members and political influence .

The 22 states that don’t have these laws include heavily populated ones like California, New York, Pennsylvania, Illinois, and Ohio; those five states on their own account for nearly half of America’s total union members . That helps explain why the union movement views agency fees as necessary if they are to survive at all, and as valid as any other provision in an employment contract. Without the fees, public sector unions could shrivel and take the broader union movement with them.

The Court punted on a similar case in 2016 , deadlocking 4-4 in the wake of Antonin Scalia’s death. With Scalia replaced with a fellow conservative, Neil Gorsuch, there was finally a 5-4 majority to rule against the unions.

The status of public sector unions in America, explained

In 2017, there were about 117 million private sector workers in America, and 21 million public sector workers, according to the Bureau of Labor Statistics . But the number of unionized workers in the private and public sectors were nearly identical: 7.6 million versus 7.2 million. So while a fairly tiny share of private sector workers (6.5 percent) belong to a union, about a third (34.4 percent) of public sector workers do.

This is the culmination of decades of decline in private sector unions in America, caused by a variety of factors including slower employment growth in unionized workplaces (compared to nonunion workplaces); anti-union legislation, particularly in the South and more recently the Midwest; the automation, offshoring, and general decline of union-heavy industries like textiles and auto manufacturing; and more sophisticated corporate anti-union drives.

As all that happened, public sector unionization actually got stronger. According to one study (using a slightly different data set than the one graphed above), only 10.8 percent of public sector workers were unionized in 1960; in 1962, after action by John F. Kennedy to unionize the federal government, 24.3 percent were. In 1970, 32 percent were, and by 1976, more than 40 percent were. In two years, the rate doubled; in a decade, it tripled; in 16 years, it quadrupled.

Basically, the federal government (through Kennedy’s Executive Order 10988 ) started allowing employees to unionize, and state and local governments followed suit. Before long, unions for teachers, sanitation workers, police officers, firefighters, prison guards, and more became standard in much of America. The union representing most state and local employees, the American Federation of State, County and Municipal Employees (AFSCME), and teachers unions like the National Education Association (NEA) and American Federation of Teachers (AFT) became powerful political actors and in some cases the public image of labor unions.

The forces that stifled private sector unions did not, generally, hit public sector unions as hard. While higher wages for employees meant that private sector firms with unions hired less than their nonunion competitors, state and local governments don’t really have competitors. Globalization and automation didn’t push public sector workers into other public sector jobs that are less likely to be unionized, unlike the way they pushed private sector workers in that direction.

Right-to-work laws in 25 states apply to public sector employees, which does appear to be at least associated with lower levels of unionization (in 2012, 17.3 percent of public sector workers in right-to-work states were union members , compared to 49.1 percent in other states), but it’s not clear how much of the differential is caused directly by right-to-work laws. That said, it appears likely that abandoning agency fees and making the whole country right-to-work would reduce public sector union membership at least somewhat.

The upshot of this history is that while the public sector was once barely unionized, it has, over time, become an increasingly large and important share of a dramatically weakened labor movement. And that means a Supreme Court ruling forcing a right-to-work approach for all public employees poses a grave threat not just to public sector unions but to the union movement as a whole.

The history behind the Janus case

For the union movement, this case was about survival. For a certain group of anti-union conservative lawyers, with whom the Court has now sided, it’s about the First Amendment and free speech.

In 1977, the Supreme Court heard a case from Detroit schoolteacher D. Louis Abood, who objected to being forced to become a member or pay agency fees to a teachers union. To force him to give money to a group whose political ideas he disagreed with was, he claimed, compelled speech. In a unanimous ruling, the Court rejected that argument , instead ruling that while agency fees could not be used to pay for lobbying or political activity, unions could still force nonmembers to pay them in exchange for collective bargaining and other apolitical services the union provides.

The ruling was typical of how the Court thinks about First Amendment issues. There’s a strong presumption against any burdening of free speech. But when a compelling interest is at stake (like a need to prevent free-riding on the union’s bargaining ability, and the union’s need to be compensated for the work it does to raise worker wages), that interest can trump an apparent burdening of speech.

The question in these cases is always how to weigh that burden on speech and the interest being served in burdening it. As Elena Kagan would write in a case nearly four decades later, “Our decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts.”

The Abood precedent hasn’t sat well with some of the conservative legal movement, and the conservative majority on the Supreme Court in recent years has been chipping away at the conclusion. In the 2012 case of Knox v. SEIU , Samuel Alito wrote that a public employees union could not assess a midyear fee explicitly to pay for political activities. (SEIU literally called it an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.”) The case was clear enough that even Sonia Sotomayor and Ruth Bader Ginsburg concurred in the judgment.

But Alito went further and hinted that he wanted to overturn Abood , writing that “our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” In her concurrence, Sotomayor agreed the SEIU went too far, but argued that Alito’s insinuations that he wanted to rule against agency fees in general “disregard[ed] principles of judicial restraint that define the Court’s proper role in our system of separated powers.”

In 2014, the Court ruled in Harris v. Quinn that home health aides who are paid by Medicaid could not be obligated to pay agency fees to public employee unions. The ruling, which was a 5-4 conservative/liberal split, rested on a distinction between partial public employees (like Medicaid-funded health workers) and fully public employees whose direct employer is the government.

But once again, Alito used his decision to argue against the logic of Abood . “The Abood Court’s analysis is questionable on several grounds,” Alito wrote. “Abood failed to appreciate the conceptual difficulty of distinguishing in public sector cases between union ex­penditures that are made for collective-bargaining pur­poses and those that are made to achieve political ends.”

At the time, the case was taken as a strong sign that the Supreme Court was ready to overturn Abood and ban agency fees altogether. “Today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead,” the conservative litigator John Eastman wrote at SCOTUSblog .

In 2016, a lawsuit by a California teacher, Rebecca Friedrichs, against the California Teachers Association, making a similar compelled speech argument, reached the Supreme Court. “We’re being asked to fund collective bargaining that’s highly political using taxpayer money and I don’t have a choice,” Friedrichs told the Washington Post .

Conservatives were encouraged by the oral arguments in the case. In National Review , Carrie Severino, who runs the conservative Judicial Crisis Network, noted that while Scalia had in past cases been sensitive to union arguments about free-riding , here he “embraced the idea that public unions are inherently political and seemed confident that unions would be able to survive even without the ability to collect fees from non-members.” Anthony Kennedy’s questions, she wrote, “again and again took the teachers’ side [against the union].”

Then Scalia died, leaving the Court with a 4-4 liberal/conservative split. Sure enough, the Court deadlocked , and the ruling of the Ninth Circuit Court of Appeals in favor of the teachers union was allowed to stand.

If Merrick Garland had taken Scalia’s seat, the odds of an Abood reversal likely would have evaporated. But with reliable conservative Gorsuch in the seat, the odds appear reasonably high. Along with the four conservatives who wanted to side with Friedrichs in 2016, he could form a majority overturning the ruling and eliminating agency fees for public sector unions altogether.

During Gorsuch’s second year on the Court, it took up the suit Mark Janus (an employee of the state of Illinois) filed against AFSCME for compelled speech, offering another go at the question.

Alito, once again, was tasked with writing the case against Abood , this time in the process of overturning it entirely. Alito’s decision fully embraces the First Amendment case against agency fees, building on his opinions in Knox and Harris:

We recognize that the loss of payments from nonmem­bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

Even some conservatives wanted to keep Abood

The ultimate outcome of Janus may feel obvious in retrospect: There are five conservative justices now, so why would there not be a conservative conclusion? One of the most fascinating aspects of Janus , however, is that it was not a simple left/right debate.

Two very prominent libertarian law professors, UChicago’s William Baude and UCLA’s Eugene Volokh, authored an amicus brief siding with the union in the case. “I don’t think there’s any First Amendment problem with compelled payments of union agency fees at all,” Volokh explained in a blog post . “The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.”

The problem with Abood , he argues, is that it conceded too much to the First Amendment case by suggesting that agency fees couldn’t be used for specifically political spending. Even things like the SEIU political fund, on this view, appear perfectly legitimate. “I don’t say this because I support unions generally — indeed, I’m somewhat skeptical of modern American unionism, both public-sector and private-sector,” Volokh continued. “But I don’t see any principled First Amendment reason for forbidding governments from requiring such payments from public employees.”

Other conservatives, predictably, thought this argument too clever by half. Matthew J. Franck, a lecturer at Princeton, wrote in National Review , “Taxes are paid to fund the public interest,” not the interests of union members.

But Volokh is, in a way, following in Scalia’s footsteps here. While he joined in Alito’s anti-union rulings in 2012 and 2014, in 1991, Scalia partially concurred in a ruling finding that public sector unions could compel agency fees. He wrote that to rule otherwise would be to have the government effectively force unions to help nonmembers who do not pay them, which itself could be constitutionally problematic. “The free ridership (if it were left to be that) would be not incidental, but calculated, not imposed by circumstances, but mandated by government decree,” Scalia wrote.

Gorsuch is famously a huge admirer of Scalia, and travels in the same broad intellectual circles as Baude and Volokh. It’s not inconceivable that he would be moved by either Scalia’s narrow argument against compelling unions to help nonmembers or the more expansive argument of Volokh and Baude that compelling any and all payments to public sector unions is constitutional.

Moreover, some union advocates have argued that conservatives will rue a ruling overturning Abood for what it might imply about the application of the Constitution to public employment more generally. “Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment,” Moshe Marvit , a fellow at the Century Foundation, wrote in the New York Times. “Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.”

Shaun Richman, a veteran union organizer, warned in the Washington Post that a ruling against agency fees could require public employers to allow multiple unions to compete for workers, instead of dealing with just one. That could lead to greater union militancy and power as unions fall over each other to show they’re the most committed worker advocates.

Now that the anti-union forces have won, expect challenges like that from unions trying to make whatever lemonade they can out of a lemon of a ruling.

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Preview of United States Supreme Court Cases

An online version of Preview of United States Supreme Court Cases that provides comprehensive expert analysis of all cases argued before the Supreme Court prior to the arguments. 

About Preview of United States Supreme Court Cases

The American Bar Association’s  Preview of United States Supreme Court Cases  is a publication that provides comprehensive expert analysis of all cases granted certiorari before the Supreme Court prior to the arguments. A subscription to this online publication includes eight issues annually. Issues 1-7 summarize the Court’s seven argument sessions from October through April. Issue 8, which is published subsequent to the close of the Court’s term at the end of June, reviews the entire term using statistics, charts, essays, and case summaries.

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Since the American Bar Association’s  Preview of United States Supreme Court Cases  has been added to HeinOnline, subscribers now have a substantial advantage when accessing this publication online. HeinOnline allows users the ability to view the most current issue and archives in a fully searchable database. All PDFs of the publication are available in full color.

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Each month, the American Bar Association features a current case before the Court along with a modified case study and focus questions for classroom use. Access these ready-to-use resources through the American Bar Association.

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Each case study provides key definitions relating to the case, as well as the case at a glance and the facts of the case.

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• The Power of Judicial Review

Article III of the U.S. Constitution describes the powers and duties of the judicial branch.  Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional.  This power, called Judicial Review , was established by the landmark decision in Marbury v. Madison , 1803.

“ It is emphatically the province and duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Courts must decide on the operation of each.  So, if a law be in opposition to the Constitution… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty .” Chief Justice Marshall, Marbury v. Madison, 1803  

• Facts about Judicial Review
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• No law or action can contradict the U.S. Constitution, which is the supreme law of the land.
• The court can only review a law that is brought before it through a law suit.
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• Legislative actions (laws made by congress)
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Case Studies

Marbury v. madison , 1803.

• Case History

When President John Adams did not win a second term in the 1801 election, he used the final days of his presidency to make a large number of political appointments.  When the new president (Thomas Jefferson) took office, he told his Secretary of State (James Madison), not to deliver the official paperwork to the government officials who had been appointed by Adams.  Thus the government officials, including William Marbury, were denied their new jobs.  William Marbury petitioned the U.S. Supreme Court for a writ of mandamus , to force Madison to deliver the commission.

Section 13 of the Judiciary Act of 1789 (a law written by Congress), gave the Supreme Court the authority to issue writs of mandamus to settle disputes such as the one described here.  This power to force actions of government officials went above and beyond anything mentioned in Article III of the Constitution.

Therefore, in addition to deciding whether or not William Marbury had a right to his job, the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution (the birth of Judicial Review ).

This case did not reach the U.S. Supreme Court the way most issues do.  Most cases reach the Supreme Court as the court of last resort, when the Justices are asked to review a decision of a lower court.  In this case, William Marbury petitioned the U.S. Supreme Court directly due to the provision in Section 13 of the Judiciary Act of 1789.  Note:  The power to directly accept petitions such as these is not granted to the Supreme Court in the Constitution.

What Do You Think The U.S. Supreme Court Decided?

Though the Justices agreed that William Marbury had a right to his job, they also ruled that issuing the writ of mandamus to force that to happen did not fall under their jurisdiction as stated in the Constitution. The Supreme Court opinion explained that it is within their power and authority to review acts of Congress, such as the Judiciary Act of 1789, to determine whether or not the law is unconstitutional. By declaring Section 13 of the Judiciary Act of 1789 unconstitutional, the U.S. Supreme Court established the doctrine of Judicial Review.

The Supreme Court said “ The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the (first) part of the alternative be true, then a legislative act contrary to the Constitution is not law .” by author of opinion, Chief Justice John Marshall.

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• The opinion of the U.S. Supreme Court
• The official version of the opinion can be found in the U.S. Reports at your local law library. Marbury v. Madison , 5 U.S. 137 (1803)

Ladue v. Gilleo, 1994

In 1990, Margaret Gilleo placed a sign in the yard of her home in Ladue, Missouri. The sign said “Say No to War in the Persian Gulf, Call Congress Now.” The city of Ladue had a law against yard signs, and told Ms. Gilleo to take her signs down. Ms. Gilleo sued the city of Ladue for violating her 1 st Amendment rights.

Was Ladue’s law against signs unconstitutional?

Margaret Gilleo sued the city of Ladue in the U.S. District Court for the Eastern District of Missouri. The court ruled in her favor and stopped Ladue from enforcing the law. Ladue appealed the decision, and the Eighth Circuit Court of Appeals also found in Ms. Gilleo’s favor. The city of Ladue then asked the U.S. Supreme Court to review the case.

The U.S. Supreme Court affirmed the decision of the lower courts. Ladue’s law against yard signs violated the 1 st Amendment of the U.S. Constitution. The 1 st Amendment protects political speech, and banning yard signs takes away the main avenue by which people traditionally express their personal political views. The value of protecting personal political speech is more important than Ladue’s desire to keep the city free of clutter.

The Supreme Court said “ They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression .” by author of opinion, Justice John Paul Stevens.

• The official version of the opinion can be found in the U.S. Reports at your local law library. Ladue v. Gilleo , 512 U.S. 43 (1994)

Harper v. Virginia Board of Elections, 1966

Annie Harper was not allowed to register to vote in Virginia because she wasn’t able to pay the state’s poll tax. Virginia law required voters to pay $1.50 tax to register, with the money collected going to public school funding. Ms. Harper sued the Virginia Board of Elections, claiming the poll tax violated her 14 th Amendment right to equal protection. Note: The 24 th Amendment to the Constitution already banned poll taxes in federal elections, but not in state elections.

Was the Virginia law requiring a tax to vote in a state election unconstitutional?

The U.S. District Court dismissed Ms. Harper’s suit in favor of the Board of Elections. She then asked the U.S. Supreme Court to review the case.

The Supreme Court declared the Virginia poll tax law unconstitutional. By making it more difficult for poor people to vote, the state was violating the 14 th Amendment guarantee of equal protection. Voting is a fundamental right, and should remain accessible to all citizens. The amount of wealth someone has should have no bearing on their ability to vote freely.

The Supreme Court said “ We conclude that a State violates the …(Constitution).. …whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax …. Wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. ” by author of opinion, Justice William O. Douglas

• The official version of the opinion can be found in the U.S. Reports at your local law library. Harper v. Virginia Board of Elections , 383 U.S. 663 (1966)

The Supreme Court seems likely to preserve a gun law that protects domestic violence victims

The justices are set to hear arguments in u.s. v. rahimi, a case involving domestic violence and guns, by mark sherman • published november 7, 2023 • updated on november 7, 2023 at 2:23 pm.

The Supreme Court seemed likely Tuesday to preserve a federal law that prohibits people under domestic violence restraining orders from having guns.

In their first guns case since last year’s expansion of gun rights, the justices suggested that they will reverse a ruling from an appeals court in New Orleans that struck down the 1994 ban on firearms for people under court order to stay away from their spouses or partners.

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Liberal and conservative justices sounded persuaded by arguments from the Biden administration's top Supreme Court lawyer that the prohibition is in line with the longstanding practice of disarming dangerous people.

The case before the court involves a Texas man, Zackey Rahimi, who was accused of hitting his girlfriend during an argument in a parking lot and later threatening to shoot her.

The justices peppered Rahimi's lawyer, J. Matthew Wright, with skeptical questions that seemed to foretell the outcome.

“You don't have any doubt that your client is a dangerous person, do you?” Chief Justice John Roberts asked Wright. When Wright said it depends on what Roberts meant by dangerous, the chief justice shot back, "Someone who's shooting at people, that's a start."

Justice Brett Kavanaugh voiced concern that a ruling for Rahimi could also jeopardize the background check system that the Democratic administration said has stopped more than 75,000 gun sales in the past 25 years based on domestic violence protective orders.

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The court’s decision in the new case could have widespread ripple effects, including in the high-profile prosecution of Hunter Biden. President Joe Biden’s son has been charged with buying a firearm while he was addicted to drugs, but his lawyers have indicated they will challenge the indictment.

The federal appeals court in New Orleans struck down the domestic violence law, following the Supreme Court's Bruen decision in June 2022. That high court ruling not only expanded Americans' gun rights under the Constitution but also changed the way courts are supposed to evaluate restrictions on firearms.

Justice Clarence Thomas' opinion for the court tossed out the balancing test judges had long used to decide whether gun laws were constitutional. Rather than consider whether a law enhances public safety, judges should only weigh whether it fits into the nation’s history of gun regulation, Thomas wrote for the six conservative justices on the nine-member court.

The Bruen decision has resulted in lower court rulings striking down more than a dozen laws. Those include age restrictions; bans on homemade ghost guns, which don't have serial numbers; and prohibitions on gun ownership for people convicted of nonviolent felonies or using illegal drugs.

Solicitor General Elizabeth Prelogar, defending the domestic violence law, urged the justices to use this case to correct lower courts' “profound misreading” of the Bruen decision.

It was unclear how far the high court would go in this case, and some of the justices sounded interested in a limited ruling that might leave open other challenges to the same law. “Do we need to get into any of that?” Justice Neil Gorsuch asked Prelogar.

Rahimi, who lived near Fort Worth, Texas, hit his girlfriend during an argument in a parking lot and then fired a gun at a witness in December 2019, according to court papers. Later, Rahimi called the girlfriend and threatened to shoot her if she told anyone about the assault, the Justice Department wrote in its Supreme Court brief.

The girlfriend obtained a protective order against him in Tarrant County in February 2020.

Eleven months later, Rahimi was a suspect in shootings when police searched his apartment and found guns. He eventually pleaded guilty to violating federal law. The appeals court overturned that conviction when it struck down the law. The Supreme Court agreed to hear the Biden administration's appeal.

Rahimi remains jailed in Texas, where he faces other criminal charges. In a letter he wrote from jail last summer, after the Supreme Court agreed to hear his case, Rahimi said he would “stay away from all firearms and weapons” once he's released. The New York Times first reported the existence of the letter.

Guns were used in 57% of killings of spouses, intimate partners, children or relatives in 2020, according to data from the federal Centers for Disease Control and Prevention. Seventy women a month, on average, are shot and killed by intimate partners, according to the gun control group Everytown for Gun Safety.

“Guns and domestic are a deadly combination,” Prelogar said in court Tuesday.

A decision in U.S. v. Rahimi, 22-915, is expected by early summer.

Associated Press writer Lindsay Whitehurst contributed to this report.

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Criminal Trials & Prosecutions Supreme Court Cases

A defendant in a criminal prosecution faces the potential loss of their liberty. In addition to basic due process protections, defendants have certain rights under the Sixth Amendment to the U.S. Constitution, including:

• Speedy and public trial
• Trial by an impartial jury
• Assistance of counsel
• Confrontation of opposing witnesses

The right to confront opposing witnesses includes the right to cross-examine those witnesses. Under Crawford v. Washington , the modern standard for determining whether confrontation is required hinges on whether a statement is testimonial. Decisions following Crawford have sought to define testimonial statements. Confrontation Clause questions also may involve the meaning of “confrontation,” such as whether a confrontation must be face to face.

Beyond the Confrontation Clause, the Supreme Court has shaped constitutional rights related to lawyers and juries in criminal cases. For example, a defendant is entitled to the assistance of counsel regardless of whether they can afford a lawyer. This right even attaches before the start of a trial. The Supreme Court has interpreted the Sixth Amendment to require “effective” assistance of counsel. Meanwhile, a jury must be selected from a representative cross-section of the community. Jury pools and juries must be formed in a non-discriminatory way.

Below is a selection of Supreme Court cases involving criminal trials and prosecutions, arranged from newest to oldest.

Author: Elena Kagan

When an expert in a criminal trial conveys an absent analyst's statements in support of their opinion, and the statements provide that support only if true, the statements come into evidence for their truth. If those statements are also testimonial, the Confrontation Clause will bar their admission.

Author: Clarence Thomas

The Confrontation Clause does not bar the admission of a non-testifying co-defendant's confession when the confession has been modified to avoid directly identifying the non-confessing co-defendant, and the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing co-defendant.

Author: Neil Gorsuch

The Sixth Amendment right to a jury trial, incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense.

Author: Ruth Bader Ginsburg

The Sixth Amendment's speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.

Author: Samuel A. Alito, Jr.

The Confrontation Clause does not necessarily bar the introduction of all out-of-court statements that support the prosecution's case. Instead, a court asks whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.

Out-of-court statements that are related by an expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.

If an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable, and the accused has had a prior opportunity to confront that witness.

Author: Sonia Sotomayor

An identification and description of a shooter and the location of a shooting were not testimonial statements for Confrontation Clause purposes because they had a primary purpose to enable police assistance to meet an ongoing emergency.

Author: Antonin Scalia

Affidavits reporting the results of forensic analysis are testimonial, rendering the affiants “witnesses” subject to the defendant's right of confrontation under the Sixth Amendment.

Author: David Souter

A criminal defendant's initial appearance before a magistrate judge, where they learn the charge against them and their liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger the attachment of the Sixth Amendment right to counsel.

Author: Stephen Breyer

The Constitution does not forbid states from insisting on representation by counsel for people competent enough to stand trial but who suffer from severe mental illness to the point that they are not competent to conduct trial proceedings by themselves.

A trial court's erroneous deprivation of a criminal defendant's choice of counsel entitles them to reversal of their conviction.

Statements are testimonial for Confrontation Clause purposes when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

Author: Sandra Day O’Connor

The right to confront accusatory witnesses may be satisfied without a physical, face-to-face confrontation at trial only when the denial of such a confrontation is necessary to further an important public policy, and only when the testimony's reliability is otherwise assured.

A screen placed between the defendant and the complaining witnesses, which blocked the defendant from their sight, violated the defendant's Sixth Amendment right to confront the witnesses against him.

The Confrontation Clause guarantees an opportunity for effective cross-examination but not successful cross-examination. It is satisfied when the defendant has a full and fair opportunity to bring out the witness' bad memory and other facts tending to discredit their testimony.

The Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name but also any reference to their existence.

Author: Lewis Powell

When the state obtains incriminating statements from the accused after the right to counsel has attached, a defendant does not make out a violation of the right to counsel simply by showing that an informant reported their incriminating statements to the police. Instead, the defendant must demonstrate that the police and their informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks.

While a defendant has no right to a jury composed in whole or in part of persons of their own race, the Equal Protection Clause guarantees the defendant that the state will not exclude members of their race from the jury venire on account of race, or on the false assumption that members of their race as a group are not qualified to serve as jurors. In addition, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.

Author: William Rehnquist

A criminal defendant states a violation of the Confrontation Clause by showing that they were prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. However, the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias is subject to harmless error analysis. Whether an error is harmless depends on factors such as the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.

The Sixth Amendment becomes applicable only when the government's role shifts from investigation to accusation through the initiation of adversary judicial proceedings. Also, Miranda should not be extended to require the reversal of a conviction if the police are less than forthright in their dealings with an attorney or if they fail to tell a suspect of an attorney's unilateral efforts to contact them.

Author: Warren Burger

The Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at their trial.

Author: William Brennan

The right to assistance of counsel attaches at critical stages in the criminal justice process, at which the results might well settle the accused's fate and reduce the trial itself to a formality.

The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

By intentionally creating a situation likely to induce the accused to make incriminating statements without the assistance of counsel, the government violated his Sixth Amendment right to counsel, and the resulting statements should not have been admitted at trial.

The Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has provided them with the right to assistance of appointed counsel in their defense. However, these Amendments do not require a state trial court to appoint counsel for a criminal defendant who is charged with a statutory offense for which imprisonment on conviction is authorized but not imposed.

Author: Potter Stewart

The Sixth Amendment right to counsel means at least that a person is entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against them. To show a waiver of the right to the assistance of counsel, the state must prove an intentional relinquishment or abandonment of a known right or privilege.

The Sixth Amendment guarantees that a defendant in a criminal trial has an independent constitutional right of self-representation. They may defend themselves without counsel when they voluntarily and intelligently elect to do so.

Author: Byron White

The requirement that a jury be selected from a representative cross-section of the community is fundamental to the jury trial guaranteed by the Sixth Amendment. This requirement is violated by the systematic exclusion of women from jury panels.

The right of confrontation is paramount to a state policy of protecting juvenile offenders, and any temporary embarrassment to a witness by the disclosure of their juvenile court record and probation status is outweighed by the defendant's right effectively to cross-examine a witness.

Author: Harry Blackmun

The Sixth Amendment does not grant an accused the right to have counsel present when the government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender.

A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule. It must be determined on an ad hoc balancing basis in which the conduct of the prosecution and the defendant are weighed. The court should assess factors such as the length of the delay, the reason for the delay, the defendant's assertion of their right, and prejudice to the defendant.

Author: William O. Douglas

The right of an indigent defendant in a criminal trial to the assistance of counsel is not governed by the classification of the offense or by whether a jury trial is required.

A showup after arrest, but before the initiation of any adversary criminal proceeding, is not a criminal prosecution at which the accused as a matter of absolute right is entitled to counsel.

The Confrontation Clause of the Sixth Amendment is not violated by admitting a declarant's out-of-court statements as long as they are testifying as a witness at trial and are subject to full cross-examination.

The conviction of a defendant at a joint trial should be set aside on Confrontation Clause grounds when a co-defendant's confession inculpating the defendant was introduced as evidence against the co-defendant during the trial, even though the jury was instructed that the confession should be disregarded in determining the defendant's guilt or innocence.

The Fourteenth Amendment guarantees a right to a jury trial in all criminal cases that would come within the Sixth Amendment guarantee of trial by jury if they were tried in a federal court. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses.

The Sixth Amendment guarantees an accused the right to counsel at any critical confrontation by the prosecution at pre-trial proceedings at which the results might well determine their fate, and at which the absence of counsel might derogate from their right to a fair trial. A post-indictment lineup is a critical prosecutive stage at which an accused is entitled to the aid of counsel.

Author: Hugo Black

The right granted to a defendant by the Sixth Amendment to confront the witnesses against them, which includes the right of cross-examination, is a fundamental right essential to a fair trial and is made obligatory on the states by the Fourteenth Amendment.

Author: Arthur Goldberg

When a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with their counsel and has not been warned of their constitutional right to keep silent, the accused has been denied the assistance of counsel, and no statement extracted by the police during the interrogation may be used against them at trial.

Incriminating statements deliberately elicited by federal agents from a defendant in the absence of their attorney deprived them of their right to counsel under the Sixth Amendment and could not be used as evidence against them at their trial.

Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial.

Author: Felix Frankfurter

Involuntary verbal confessions are inadmissible in a criminal trial under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.

Author: Owen Josephus Roberts

Under the circumstances, the refusal of a state court to appoint counsel to represent an indigent defendant at a trial in which he was convicted of robbery did not deny him due process of law in violation of the Fourteenth Amendment. (This decision was overruled by Gideon v. Wainwright below.)

Author: Frank Murphy

The right to have the assistance of counsel is too fundamental to be made to depend upon nice calculations by courts of the degree of prejudice arising from its denial.

The right to assistance of counsel may be waived, but the waiver must be intelligent. Whether there was a waiver must depend on the particular facts and circumstances, including the background, experience, and conduct of the accused.

Author: George Sutherland

The right of the accused, at least in a capital case, to have the aid of counsel for their defense is one of the fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment. This includes the right to have sufficient time to advise with counsel and prepare a defense.

Author: Oliver Wendell Holmes, Jr.

A trial for murder in a state court in which the accused are hurried to conviction under mob domination without regard for their rights is without due process and void.

Author: William Howard Taft

The provisions of the Constitution guaranteeing a jury trial in all criminal prosecutions do not apply to a territory belonging to the U.S. that has not been incorporated into the Union, such as Puerto Rico.

Author: William Strong

When a state law secures to every white man the right of trial by a jury selected from and without discrimination against his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former.

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