I. Introduction

Since Pfizer’s, and then Moderna’s and Johnson & Johnson’s,[1] a new vaccine was announced in the U.S., the public conversation surrounding COVID-19 public health measures has shifted from an emphasis on masking and quarantining to inoculation.[2] The essence of the conversation has changed little, however. What remains in play is the question of state power and citizen compliance therewith.

Early on, the Biden White House expressed interest in a national mask mandate which, however constitutionally dubious, exhibits willingness for large scale public health mandates which will set the tone for state governments, which, as we shall see, possess the constitutional power to institute such requirements for public health.[3] Most states have adopted masking requirements,[4] though some states lifted such restrictions in the opening months of 2021.[5] As to inoculation, statewide mandates have happened before and are, generally, constitutionally defensible. For example, as recently as 2019, New York City mayor Bill de Blasio ordered mandatory vaccinations in parts of Brooklyn in response to an outbreak of measles.[6] But a national debate over this issue is likely to emerge as Pfizer’s vaccine—granted emergency authorization by the F.D.A. in record time[7]—begins to be widely distributed.[8] By the start of April 2021, New York had opened vaccine eligibility to all residents over 16, with New Jersey promising following suit.[9] New Hampshire and Oklahoma were amongst the first to open the vaccine to non-residents.[10]

Vaccine mandate talk is already heating up overseas. On December 21, 2020, a French government bill was introduced that would, if passed, restrict the movement of unvaccinated people during what is called a “sanitary state of emergency.”[11] Similar proposals may crop up in other European and American legislatures if predicted second wave of the coronavirus sweeps through both continents.[12] Continental courts have also begun to review vaccine policies. In early April 2021, the European Court of Human Rights, in a rather contentious ruling, upheld a Czech policy that designated COVID-19 vaccination a prerequisite for children entering preschool.[13] With an unspecified timeline for the pandemic, surely this will not be the last time an E.U. court weighs in on the matter.[14]

A. Mandate Likelihood

Four factors may influence policymakers toward considering COVID-19 vaccine mandates. First, like the flu, epidemiologists and researchers say that the novel coronavirus will not stop evolving and, therefore, may develop resistance to the vaccine.[15] It may very well be that, as with the flu, vaccination becomes an annual necessity. Efficacy rates of vaccines are high but, perhaps, not as stable as originally thought.[16] It could be impossible to eradicate the virus.[17] Some epidemiologists have suggested that “[T]he world will not reach the point where enough people are immune to stop the virus’s spread before the emergence of dangerous variants — ones that are more transmissible, vaccine resistant, and even able to evade current diagnostic tests.”[18] Already Beta, Gamma, Delta, and Kappa variants have been identified, the latter two being more contagious, and potentially more virulent,[19] than their predecessors.[20] Preliminary studies from mid-2021 showed that the Delta variant, in particular, was able to evade natural antibodies developed by people who had contracted earlier variants.[21] Furthermore, whilst available vaccines are believed to be effective against said variants, at the start of summer 2021, only a little over 20 percent of the world was fully vaccinated,[22] and vaccine rates in America had stalled.[23]

Second, although the vaccine has been developed and will be distributed at lightning speed, the vast majority of Americans will not receive the vaccine before summer 2021—some locales will lag far behind others in terms of vaccination rate.[24] As travel patterns resume,[25] the risk of spread may increase, although the real effect of travel restrictions and post-travel quarantine remains uncertain.[26] Dr. Anthony Fauci warned in late 2020 that winter and spring festivities could make the pandemic “worse than ever.”[27] This threat will be compounded by a new wave of cases coming out of Europe, as well as by increased domestic and international flights across the globe throughout the warmer months.[28]

Thirdly, given early effectiveness percentages, the vaccine is likely to keep those inoculated from getting sick from the virus. But it may not prevent the same persons from spreading it to others; vaccinated persons, like asymptomatic persons, can still act as carriers, albeit the likelihood of doing so is diminished.[29] And as mentioned already, virus variants may challenge the efficacy of existing vaccines.[30]

Finally, skepticism (and misinformation[31]) abounds on the ground regarding the vaccine.[32] Of course, the anti-vaxxers and conspiracy theorists were never going to be convinced, but ordinary people also have their doubts. In an AP-NORC poll from May 2020, fewer than 50 percent of Americans said they would commit to receiving the vaccine once it became available. Confidence in the vaccine has since risen but remains below a threshold ideal for mass vaccination and so-called herd immunity.[33] A poll conducted by the University of California-Davis, from January 2021, showed that a third of Americans were still hesitant to get vaccinated.[34]

Typically, vaccine refusal is most prevalent in wealthy and white areas. Yet polling data shows a high level of timidity amongst Black and Latino respondents, with only a quarter of the former group and 37 percent of the latter group saying they would commit to getting vaccinated.[35] Pew Center researchers found that nearly 40 percent of Latinos said they would probably or definitely not get the vaccine, and more than half of Black respondents said the same.[36] In the U.K., areas with the highest rates of infections—also the poorest—exhibited the lowest rates of vaccination.[37] On top of these trends, as pandemic restrictions are eased and “normal” activities resumed, concerns may be prematurely allayed. Polls in June 2021 reflected a decrease in caution and virus-related worry. A majority believed that summer festivities posed little or no threat, even with knowledge of emergent variants in play.[38] Even by July 2021, the numbers had not improved much,[39] especially amongst young people.[40]

The reasons for this widespread, trans-demographic skepticism are difficult to pinpoint. Some people still doubt the seriousness of the pandemic itself.[41] Admittedly, pandemic data is not something most people are used to parsing, nor have predictive models been particularly reliable.[42] Others are simply wary of the rushed development of the COVD-19 vaccine in particular.[43] Generally, the pandemic and the inevitable mistakes made and growing pains within the government response, has only contributed to a crisis of confidence in established institutions, from which the medical field has not been immune.[44] Data’s “death” in 2016 was not limited to national elections.[45] In any case, it could make a state mandate more likely, though some argue that alternative, even private sector, mandates would be more effective.[46] Indeed, at least early on, there seemed to be an eagerness by governments in both the U.S. and U.K. to farm out vaccine enforcement to private companies and institutions.[47] But if vaccine resistance thickens, this could change. Already public universities are experiencing pushback over proposed mandates.[48] The same goes for hospitals.[49]

Even if the COVID-19 vaccines are rolled out smoothly and with negligible resistance, such that a vaccine mandate proves unnecessary, the same questions will likely be visited upon us again. Experts warn that the world could be entering an era of pandemics—not all of which could be solved by vaccination, though many could.[50] Some estimates show that there are 1.7 million undiscovered viruses remaining in various mammals and birds. Up to 850,000 of them could infect humans.[51] For all these reasons, it is worth considering the possibility of a state-based vaccine mandate cropping up soon. Some commentators welcome it others question the wisdom of the same.[52] Support for vaccine mandates seems to split along political party lines.[53]

B. Intellectual Environment

This debate and consideration, whenever it happens, will take place amidst some philosophical turbulence for a sizeable (and especially conservative) quadrant of legal academia. Back in March 2020, as the pandemic ramped up, Harvard Law professor Adrian Vermeule sent shockwaves through conservative legal academia with an article in The Atlantic that advocated for “common good constitutionalism” over and against originalism, which has heretofore served as the unquestioned orthodoxy for conservative legal theorists—or, as the growing consensus, of everyone from Justice Kagan to Lawrence Solum, would have it, “we are all originalists now”[54]—and was designed to counteract the excesses of the now-long-past Warren court.[55] Vermeule argued that an alternative or replacement constitutionalism directed by concern for the common good should

[B]e based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social.[56]

In the same article, Vermeule mentioned in passing the subject of vaccinations, noting that the same principles lying behind the constitutionality of state vaccine mandates, which invests the state with authority “to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private ‘rights.’” Inter alia, Vermeule contended that alternatives to a common good approach are incapable of appropriately responding to public health crises like the present pandemic.

The increasingly real prospect of a viable COVID-19 vaccine and the potential for state vaccine mandates provides the opportunity for Vermeule’s constitutionalism to be demonstrated and applied vis a vis public health. The reasoning and precedent established by Justice John Marshall Harlan in Jacobson v. Massachusetts (1905) offers a template for this approach, for the first time in a generation, there may be a critical mass of members of the conservative legal movement willing to entertain a new—but in truth, older—approach to jurisprudence.[57]

As the precedent briefly surveyed below shows, such state-level public health mandates are defensible on constitutional as well as jurisprudential grounds from a classical legal perspective, the same perspective upon which Vermeule’s common-good constitutionalism proposal draws.

Part I will examine Jacobson and Harlan’s reasoning, drawing evident comparisons to the jurisprudence of Sir William Blackstone, Joseph Story, and Thomas Aquinas, and fleshing out the classical law doctrine of determination as necessary and intricate quality of human (positive) law. The assumptions and reasoning standing behind the Jacobson holding are just as important as the precedent itself. If a debate over mandatory vaccination policies ensues, more necessary than knowing the relevant precedent will understand especially for those of a right-of-center disposition—and then, especially religious conservatives.

Further still, grasping Harlan’s reasoning, rationale, and purpose—which until recently would have been foreign to conservative circles—in Jacobson is helpful because of the resurgence of popular constitution theories on the legal right[58], and left, for that matter.[59] If Supreme Court precedent is only strictly binding on the parties to the dispute at the time of the decision, then the existence of relevant (still binding) precedent on the state vaccine mandate question will be less potent unless the reasoning thereof itself proves convincing. That said, Part II will consider some (political) caveats under the rubric of the classical virtue of prudence, itself traditionally included in classical (and natural law) analysis.

II. Jacobson v. Massachusetts and the Smallpox Epidemic of 1901-1903

The go-to case on state-mandated vaccination is Jacobson v. Massachusetts (1905).[60] Therein, the Supreme Court upheld a state order compelling smallpox inoculation, thereby setting the tone for public health law for over a century. However, more significantly, it articulated an enduring theory of the police power doctrine predicated on the common good.

At the time, Massachusetts had empowered municipal boards of health to enforce and administer its smallpox vaccine requirement. Massachusetts was one of only 11 states with compulsory vaccination laws,[61] and an outbreak of the disease had begun in 1901. By 1903, there were 1,596 cases and 270 deaths in Boston, which then boasted a population of about 560,000.[62] The vaccines were free to the public, but adults who refused to comply—children were afforded an exemption on the condition that a physician declared them unfit for vaccination—with the mandate were subject to a $5 monetary fine,[63] which would amount to approximately $148 today. In 1902, facing a new outbreak of smallpox, the board of health of the City of Cambridge, Massachusetts, mandated vaccination.[64]

A Swedish immigrant and Lutheran pastor in Cambridge, Henning Jacobson, had received a smallpox vaccine as a child in Sweden under a similar state mandate. He experienced such bad side effects that he was instilled with a lifelong terror of the procedure.[65] Accordingly, Jacobson refused the vaccination, was fined, lost his case before the Massachusetts Supreme Judicial Court,[66] was sentenced to jail until the fine was satisfied, and proceeded to appeal to the United States Supreme Court. There he argued that the mandate was “unreasonable, arbitrary, and oppressive” contra the principles embedded in the preamble of the Constitution and violated the Fourteenth Amendment. In the interim between his failed state case and receiving a grant of certiorari, Jacobson became the poster child for the anti-vaccine movement, the longevity of which hung in the balance.[67]

To support his Fourteenth Amendment claim, Jacobson argued, inter alia, that the “Compulsion to introduce disease into a healthy system is a violation of liberty,” and that, given that other alternatives were allegedly at the state’s disposal, compulsory vaccination was unnecessary.[68] Justice John Marshall Harlan (1833-1911), the author of the famous Plessy v. Ferguson (1896) dissent,[69] wrote for a 7-2 majority rejecting Jacobson’s claims and upholding Massachusetts’ policy.[70] The state’s police power— the authority of the government to promote the “health, safety, and morals,” otherwise known as the common good, of the populace[71]—justified its legislative actions to protect public health and safety.[72] The police power, said Harlan, “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”[73] This power included, inter alia, the “authority to enact quarantine laws and health laws of every description,” thereby justifying the Cambridge enactment of the scheme established by the state General Court.

A. Jacobson v. Massachusetts

Harlan rooted his opinion in the Massachusetts Constitution’s expression of the social compact and mutual covenant.[74] In the state’s constitution of 1780,

it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men.’[75]

That the legislature, Harlan declared, is the primary judge of what constitutes the “good and welfare of the Commonwealth” is the “basis on which the police power rests.”[76] This aim or end, the common good—a term that occurs in the preamble of Massachusetts’s Constitution—or public welfare, serves as the basis and limitation of the police power.[77] Indeed, the pursuit of the common good is the chief qualification of those who govern.[78] As Joseph Story (1779-1845) had asserted decades prior, “The aim of every political constitution is, or ought to be, first, to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society.”[79] Any exercise of government power must be justified by a given policy’s demonstrable pursuit of the common good and promulgation by a competent authority according to reasonable, proportional means.

Self-defense of the community is the concomitant justification for the same power.[80] Indeed, the government itself “is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor or private interests of any one man.’”[81] In-play here as well is Harlan’s general conception of the role of government regulations, and the permissions and limits thereof, in pursuing the common good.[82]

For most of his time on the bench, Harlan was an outlier within a skeptical cohort of state regulations, seeing them as a presumptuous and unnecessary intrusion into individual autonomy. Harlan was usually of the opposite persuasion. As James Gordon put it, for Harlan, governments were not “tolerable nuisances or threats to individual economic liberty. Rather, they were the positive embodiment of community, directed to promote the moral good of the community and to check the predatory and selfish conduct to which too many men were prone.” In this way, the staunch Calvinist Harlan was akin to his theological forebears in New England,[83] who Perry Miller described as being at “the opposite pole from [Thomas] Jefferson’s feeling that the best government governs as little as possible.” On the contrary,

Puritans did not think that the state was merely an umpire, standing on the side lines of a contest, limited to checking egregious fouls but otherwise allowing men free play according to their abilities and the breaks of the game. They would have expected laissez faire to result in a reign of rapine and horror. The state to them was an active instrument of leadership, discipline, and, wherever necessary, of coercion.[84]

Within the Puritan paradigm, this view of government—in truth, the early modern assumption across the trans-Atlantic world—made sense because society was conceived of as an organic unit, “bound together by inviolable ties.” That is, by covenantal agreement, or what the Massachusetts Constitution preamble referred to as “social compact”—a term which need not always and everywhere be injected with Lockean-Rousseauean import (especially in those contexts, such as early seventeenth-century New England, that predate the contribution of both men).[85] Even more basically, the “power of Civil Rule, by men orderly chosen, is God’s Ordinance,” as proven by “the Light and Law of Nature,” because “the Law of Nature is God’s Law.”[86] In other words, the government was an inescapable ordinance of God and reason for the sake of human good. All of this was not far from Harlan, who kept his theology in conversation with his jurisprudence.[87]

Accordingly, “Where many of [Harlan’s] fellow Justices saw state regulations as an intrusion on the individual’s right to be left alone, Harlan saw the exercise of state power as necessary.”[88] Selfishness run amok was antithetical to a commonwealth. The purpose of the police power, then was the “protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights.”[89] Harlan was unafraid of government power and exhibited a consistent deference to state legislative power, for, in a republican system, the legislature embodied the collective wisdom of the community past and present,[90] a sort of Burkean notion.[91]

More than anything, however, this was traditional common law (and Puritan) thinking wherein the reasonableness of rules—that they were grounded in, or agreeable to, transcendent law—was demonstrated by immemorial usage and exhibition of equitable outcomes unto the common good. Endurance was evidence of reason, fairness, and justice. As the introductory epistle to the Laws and Liberties of Massachusetts (1647) held, “surely there is no humane law that tendeth [sic] to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake.”[92]

Accumulated, collective wisdom, however, necessarily had to be harnessed to meet then emerging, modern problems, especially those that threatened the community. Per Gordon, “Harlan was more willing than his brethren to permit legislative experimentation as the states attempted to address the acute problems created by rapid industrialization, urbanization, and the consolidation of economic power.”[93] (Arguably, we are living through a similar period of radical technological change and political, economic, and religious realignment.[94])

On the basis of these principles, supported by ample case law, Harlan rebutted Jacobson’s assertion of his right to be free from mandated inoculation. Whilst there exists a sphere within which individuals may dispute and challenge the authority of human governments, said Harlan, “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.”[95] As the Maine Supreme Judicial Court had written in 1873 to justify the forceable quarantine of a child infected with smallpox, “The maxim salus populi suprema lex [the public welfare is the supreme law] is the law of all courts and countries. The individual right sinks in the necessity to provide for the public good.”[96]

Accordingly, said Harlan, “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”[97]

The Massachusetts law was not, in fact, arbitrary and oppressive because it did not “go so far beyond what was reasonably required for the safety of the public,” a genuine, compelling interest of the government, and did not, in this way, “contravene the Constitution.” Instead, the vaccine mandate was a just use of the police power because it was demonstrably “necessary in order to protect the public health and secure public safety.” Put another way, there were no other equally viable, but less coercive alternatives available for which the state might have opted in response to an evident and pressing public health crisis—a compelling interest, to be sure.

Jacobson had offered opinions of certain medical professionals as to the ineffectiveness of the smallpox vaccine. Harlan rejected them outright, asserting instead that the legislature was capable of, and permitted to, determine the best mode and means of a response to a public health crisis.[98] This power could only be undermined if Jacobson were able to “confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety.” If the means selected by the legislature were proven to be unreasonable or ill-fitted to the purported end in view then, of course, it could be challenged as a violation of state discretion. As Harlan had said in Mugler v. Kansas (1887),

If therefore a statute purporting to have been enacted to protect the public health, public morals or public safety has no real or substantial relation to these objects or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the constitution.[99]

By “fundamental law,” Harlan probably had in mind some combination of ancient precedent within the Anglo-American common law tradition and established Constitutional norms and protections—that is, well established and tested human law—all of which he would have thought reflective of the natural law.[100]

As to punishment and enforcement, Harlan inserted a necessary caveat, making clear that forced vaccinations extended beyond the limits of the police power. Non-compliance was lawfully subject to statutory punishment, but citizens could not be physically restrained and injected against their wills. Reports of forced inoculation raids in poor, immigrant neighborhoods in New York City may have induced this limitation from Harlan.[101]

Jacobson was later upheld by Zucht v. King (1922), which ruled that a public school system in Texas could exclude from admission a student who had refused or failed to receive required vaccinations.[102] Likewise, Vernonia School District 47J v. Action (1995) applied the reasoning of Jacobson to permit random drug testing of public-school students.[103] Hamilton v. Regents of the University of California (1934) used Jacobson to uphold compelled military training for state university students.[104] In April 2020, In re Abbott (5th Cir. Apr. 7, 2020) cited Jacobson to uphold Texas’ determination to limit abortion procedures during the pandemic, according to the interest of public health and welfare, as a non-essential medical procedure.[105]

Justice Gorsuch, in one of the high profile COVID-19 religious liberty cases, Roman Catholic Diocese of Brooklyn v. Cuomo (2020),[106] made clear in his concurrence that by overturning Governor Cuomo’s executive order on religious liberty grounds it was not thereby overturning Jacobson. Rather, it was following Jacobson in its assessment, more faithfully, in Gorsuch’s view, than had South Bay Pentecostal Church v. Newsom (2020),[107] noting that “Jacobson applied what would become the traditional legal test associated with the right at issue—exactly what the Court does today. Here, that means strict scrutiny.” Gorsuch then distinguished the city-wide (in affected “zones”) ban of “all traditional forms of worship… whenever the Governor decrees and for as long as he chooses,” with the individualized plea at play in Jacobson. The latter “easily survived rational basis review,” whereas the former would not.[108]

More recently still, Ryan Klaassen, et al., v. The Trustees of Indiana University (N.D. Ind. 2021) upheld the university’s campus vaccine mandate, at least, against a plaintiff motion for a preliminary injunction.[109] In so doing, the district court offered an extended analysis of both Cuomo and Jacobson, writing that the university’s policy was reasonable in “the legitimate interest of public health,” not likely to violate the Fourteenth Amendment, and had not been shown to lack a rational basis.

Exiting the boundaries of the U.S., a recent decision from the European Court of Human Rights, though standing outside of U.S. jurisdiction and legal history, also coincides with Jacobson and its progeny, adding an unexpected layer to our considerations here. In Vavricka and Others v Czech Republic, the ECHR examined a Czech policy which mandated COVID-19 vaccination for permanent residents and preschool facilities that could only accept vaccinated children.[110] Six applications from Czech citizens challenged the law under Article 8 of the Convention on Human Rights, viz., the right to respect private lives. The ECHR held that whilst there may have been an interference with this right, the law was justified since it was enacted through lawful processes and “necessary… for the protection of health.” The court considered that the punishment for non-compliance (a relatively meager fine) was not particularly onerous, and that the requirement for preschoolers did not extend to all levels over education and was, therefore, not excessive. Like Jacobson, it also noted that actual forced vaccination was not in play. Most importantly, the court was convinced that the Czech authorities were attempting to address a genuine social need (i.e., herd immunity), and by a reasonable means reasonably tailored to that need. There was, therefore, a recognizable quality of “social solidarity” to the law. Of course, the default posture of the ECHR is toward deference to member states. It was not likely that, barring something egregious, it was going to negate Czech policy. Nevertheless, for our purposes here, the decision proves interesting because of how much it mirrors the reasoning of Jacobson, subconsciously or otherwise.

At this point, an important caveat is in order. Jacobson does not provide carte blanche authority for governments to mandate any and all restrictions in the name of public health. The reasoning of Harlan must be understood to see how Jacobson applies. Jacobson reflects the same tradition from which Sir William Blackstone was reasoning in his Commentaries.[111]

B. Law’s Declaration

Blackstone identifies several parts or functions of every human (which Blackstone calls “municipal”) law, “the rule by which particular districts, communities, or nations are governed.”[112] The first of these is a declaratory function “whereby the rights to be observed, and the wrongs the be eschewed, are clearly defined.”[113] This declaration of human law (i.e., positive law) “depends not so much upon the law of [divine] revelation or of nature as upon the wisdom and will of the legislator.”[114] Blackstone explains that the rights and duties established by God and disseminated via either nature or revelation “need not the aid of human laws to be more effectually invested in every man… neither do they receive any additional strength when declared.”[115] The same goes for laws that reflect the things prohibited by the moral law. “For that legislature in all these cases [i.e., where the moral law is reflected and endorsed] acts only… in subordination to the great lawgiver, transcribing and publishing his precepts.”[116] This ideal is well and good but borderline redundant, for “the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.”[117]

Where human law has its true and proper force is “with regard to things in themselves indifferent.” Indifferent—indifferent in the ultimate sense, that is—things become right or wrong, just or unjust “according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.”[118] Blackstone provides some examples:

Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature, but are merely created by the law, for the purposes of civil society.[119]

He then adds,

And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the law of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another’s cattle shall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.[120]

To be clear, Blackstone is not saying that some things become right or wrong, just or unjust by the bare fiat of the legislator. There is more to it than that. In this excerpt, Blackstone invokes certain elements of the classical law tradition, viz., the doctrine of determination (determinatio), which does not provide officials with boundless license but with certain duties (and limitations) appropriate to the charge of their office and ordained authority. The doctrine of determination is relevant to the application of (state) governmental police power vis a vis public health in our present context.

C. Determinations and the Common Good

For Blackstone, the natural law provides general precepts which, as said already, cannot receive or lose force from any human authority. However, those precepts are, by nature, general. Therefore, it is the proper role of government authorities, those with care for the community, to first draw pure conclusions from general principles, and second to prudently determine the particular application of higher law principles, and corresponding penalties, according to the time and circumstances.

Determinations cannot conflict with the dictates of natural law lest the hierarchy of law be broken and the authority of human law is lost. Though human law determinations, as derivations of the natural law, are inherently mutable, the principles behind them are immutable.[121] Classically, this process is designated participation in the eternal law to invoke Thomas Aquinas’ taxonomy of law (i.e., eternal law, natural law, divine law, human law).[122] Deductions from, and determinations of, natural law principles are built into the whole apparatus. They are specifications of the natural law. Brian McCall, in his magisterial new work on the classical legal tradition, suggests that “The mandatory nature of legitimate human determinations thus derives from the mandatory nature of the ends of human existence established in the eternal law.”[123] In other words, it is a dictate of the natural law itself that human law determinations be made and serve as a legitimate source of authority.

Hence, “[A]ll obligations either proximately or remotely come from the natural law,” says McCall, “An obligation may arise upon the will of the human lawgiver choosing among possible determinations, but that will is only a part of the process of establishing obligation.”[124] The obligation to conform to human law comes ultimately from its congruence with the natural law, though the particulars of a determination derive from the will of legislators. Though every dictate of the natural law need not be specified and applied by human legislation, those that touch the common good should. And some principles of the natural law must always receive a human law representation for a regime to remain legitimate and stable—a sort of natural law of preconditions of institutions.

Furthermore, the (ultimate) end of human law determinations must be the common good, and the means to that end must be both reasonable, proportional, and equitable thereto—indeed, that a law is a means rightly addressed to an appropriate end is the definition of reasonableness.[125] Yet here also, the determinations of magistrates are relevant. As Thomas Aquinas said, “the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times.”[126] Discerning the common good is, to some extent, contextually contingent.[127] Per McCall, “Aquinas notes that one of the requirements of law is that it be possible to take into account the condition of the particular people. Laws must be suited to the state of the community.”[128] There is a common good intricate to each unit of society—families, associations, corporations, etc. However, the purview of the ruler or lawmaker is that of the whole state; that is, the community for which he has care. The common good intended by said lawmaker(s) must be fitted to that over which they rule, which encompasses all of the subsidiaries as well.

Thus, human law determinations must be responsive to changing circumstances and take the whole into account, as is relevant in a given situation, including each integral part, but must ultimately seek the good (and longevity) of the state. Aquinas, citing Saint Augustine’s City of God, noted that the good of a community of any kind should have in view the longevity of that community, not the immediate inclinations of the few. Thus, it is through the pursuit of the common good that human laws, in part, acquire authority.

Blackstone further recognized that belonging to a community through which a common good can be pursued—an impossible feat in isolation—is superior to living alone even though in former requires forsaking certain natural liberties. This concept is to embrace man’s inherent sociability.[129] In this way, man’s natural liberty is increased as it is ordered according to the laws of society unto the common good. Living under the just laws of society is, in fact, an expansion of true freedom. Thus, instead of losing any of his God-given rights by joining in society, the citizen gains new complementary ones whilst having his brutish proclivities restrained (which is for his moral and social benefit).

As Blackstone reasons,

But every man, when he enters into society, give up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it… Political, therefore, or civil liberty… is no other than natural liberty so far restrained by human laws… as is necessary and expedient for the general advantage of the public.

Likewise, Harlan explained that Jacobson’s liberties were not invaded by the vaccine mandate because,

[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned.[130]

Harlan said this ideal is “liberty regulated by law.” Therefore, in both Blackstone and Harlan, we see the remnant of medieval political theory, wherein—in human society as in all compound substances—“every Plurality which has a common aim and object must in relation to that aim and object find source and norm and goal in a ruling Unity,” as Otto von Gierke phrased it.[131]

To reiterate the above more simply, to Blackstone, laws “regulate and constrain our conduct in matters of mere indifference, without any good end in view,” then they are destructive of liberty. But “if any public advantage can arise from observing such precepts, the control of our private inclinations… will conduce to preserve our general freedom in others of more importance; by supporting that state of society, which alone can secure our independence.”

For example, says Blackstone, a law of Edward IV which outlawed “fine gentlemen” from wearing “pikes upon their shoes or boots of more than two inches in length, was a law that savoured [sic] of oppression” because it served no “common utility.” On the other hand, a statute of Charles II that proscribed all the dead to be buried in “woollen” was “consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation.”

For both Blackstone and Harlan—following the classical legal tradition as most jurists of the colonial and early republic periods did[132]—civil magistrates (in this case, legislators) are owed a level of deference; leeway within which the best means of pursuing the common good can be ascertained. This deference is not without limits. The common good, and the reasonable pursuit thereof, provides both the basis and confines of just determinations (or declarations) of law.[133] Without the power of determinatio—“the discretion of the legislature, acting for the common good and the general interests”—said Joseph Story, “the government would be absolutely worthless, and made merely subservient to the policy of foreign nations, incapable of self-protection or self-support.”[134]

The doctrine of determination (or declaration) in human law, as well as an older theory of society generally, survives in the state police power as articulated in Jacobson, which Harlan had taken up earlier in Mugler v. Kansas (1887)—though Patterson v. Kentucky (1878) marked Harlan’s first treatment of the police power[135]—which held that the regulation and prohibition of alcohol, for personal or public consumption, was a constitutional exercise of the state police power.[136] In Mugler, Harlan sketched his understanding of the police power as determinatio, as well as its relationship to the common good, and specifically the maintenance of common morality.[137] Harlan asked rhetorically,

[B]y whom… is it to be determined whether the manufacture of particular article of drink… will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please.[138]

Mugler shows how essential this determinative power via the police power is for Harlan and his conception of the common good—in this case, state sovereignty, tranquility, and stability. Someone must have the power of determinatio. If it is not vested in the legislature, then it will be retained by every man unto himself to the detriment of the whole commonwealth.[139] Yet this was not, properly, an encroachment on individual rights or autonomy.

Nor can it be said that Government interferes with or impairs anyone’s constitutional rights of liberty or of property when it determines that the manufacture and sale of intoxicating drinks for general or individual use as a beverage are or may become hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our Government by the observance upon the part of all of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare.[140]

Policies must be oriented to the common good and legislators have some leeway in determining what means will most reasonably achieve the common good, which includes preservation of the state, its morality, stability, and health. Preventing the state from exercising police power, would mean that “honesty, health, morals, and [the] good order of the State would be cast to the winds, and vice and crime would triumph in their stead.”[141] Government power must be employed for the formulation of a moral community—the common good—over and against moral (and otherwise) pollutants.[142] And in Mugler, Harlan held that the means of this pursuit was reasonably tailored to an appropriate and attainable end.

[W]e cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to everyone, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil…. [One’s constitutional rights of liberty or property] are best secured… by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good.[143]

Even if individual citizens would have preferred a different determination and alternative means of pursuing communal benefit (i.e., public health, morals, and safety), the intent of lawmakers to pursue the common good via a means reasonably related to the intended end legitimizes the policy in question—a sort of rational basis review.[144] As Harlan reasoned in Jacobson, if these elements are demonstrable, then the exercise of state police power stands; it is a rational ordinance agreeable to the natural law and the raison d’être of government, viz., the common good.

In rejecting the opinions of medical professionals arguing for the ineffectiveness of the smallpox vaccine asserted by Jacobson, Harlan appealed to 1) the competency of the legislature and 2) the general consensus. The Court assumed that the legislature was aware of all opposing opinions, but in a deliberate and informed manner, elected to order inoculation. This action by the legislature was clearly not unreasonable given that “Smallpox is known of all to be a dangerous and contagious disease.”[145] If there was a general consensus that the vaccine had a high probability of preventing transmission and spread, then it was a logical solution. Regarding smallpox, this consensus was, generally accepted in most states and in “most civilized nations.” Further, legislative representatives, in a republican government, represent the consensus of the people. Their opinion, therefore, required no further corroboration insofar as it stood for the “common belief.” Neither a court nor a dissenting contingency should be allowed to usurp this principle.

III. Governance and Prudence

In light of the above, the initial question presently facing contemporary lawmakers is whether a vaccine mandate in our current circumstances would “go so far beyond what [is] reasonably required for the safety of the public,” and “necessary in order to protect the public health and secure the public safety.” Alternatively, whether there is any doubt that “the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety,” and whether there is a less coercive but adequate means of achieving the same end. Put another way, the threshold question in justifying exercise of the state police power for public health and safety—to continue Harlan’s invocation of the right of self-defense—is that of the imminence of the threat in question.[146]

Harlan held that the same police power that justified Massachusetts’ vaccine mandate provided for related measures such as forced quarantine, indeed, almost any public health measure.[147] However, despite Harlan’s general deference to the determinations of the legislature in Jacobsen, the analysis was fact-intensive. Harlan’s reasoning features evident interdependence between the nature of the public health crisis in question and the means selected by the legislature to address it. To recall again, in part, what he had established in Mugler, if “the public health, the public morals, and the public safety, may be endangered by” some pervasive practice or naturally occurring phenomenon This fact was established by well-known proof, then constitutional rights "are best secured.., by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good.[148]

Similarly, in Jacobson, the legislature had surveyed the landscape and selected its plan of attack, as was its prerogative, to address a demonstrable public health crisis. A consensus on the issue was apparent to Harlan and, in his opinion, rightly apprehended by the legislature.[149] Smallpox was nothing new, and everyone was convinced of its deadliness. It had been around for close to 3,000 years. The fatality rate was almost 30%. Per the Center for Disease Control, the disease had a secondary household (or close) contact rate of 60%. Nearly 80% of survivors carried pockmarks with them for the rest of their lives, some scarred so badly that they were left unrecognizable even to family members. Inoculation had begun in the early 18th century—the theologian and then-president of Princeton University, Jonathan Edwards died from the inoculation in 1758—but was not well developed until the last decade of the same period. By the time of Jacobson, its effectiveness was proven. In the early 20th century, smallpox remained a true threat. By the close of the century, it had killed some 300 million, and close to 500 million to date since 1920.[150] Tens of millions of cases were still occurring every year as recently as the 1960s.

All of that to say, the threat of smallpox can be partially distinguished from that of COVID-19. This is not to say that the latter does not constitute a legitimate public health crisis, but a distinction could be argued as to urgency and the imminence of the threat. The fatality rate nationwide continues to hover at just under 2% compared to the 30% fatality rate of Smallpox. For COVID-19, fatalities are disproportionately high amongst the elderly and those with chronic preexisting conditions. Smallpox, on the other hand, seemed to be no respecter of persons. The present scourge is also new, and effective remedies are not yet properly established, despite the heroic efforts of researchers and pharmaceutical developers over the past year. Likewise, and unlike smallpox, we do not yet know whether COVID-19 will become a recurring, perpetually mutating virus, a staple of life, though there are some reasons to think it will.[151] These distinctions will convince some and not others. (And a 2% fatality rate is still, of course, serious.) At the end of the day, these distinctions would likely not have convinced Harlan.

The petitioner in Jacobson observed that, at the time of, Smallpox had “ceased to be the death sentence which it once was,” and noted that there was a “growing tendency to resort to sanitation and isolation rather than vaccination.”[152] There may not have been any discernable difference, in terms of affliction rates and death, between Massachusetts and one of the 34 other states that did not mandate vaccination.[153] Nevertheless, Harlan found Massachusetts’ policy reasonable, a rational response to a compelling interest on behalf of the common good. The enduring, relative imminence of the recurring pandemic justified, on self-defense grounds, a state response.[154]

Per Jacobson, a vaccine mandate would be a constitutional use of state police power and, assuming the logic of Harlan was followed, reasonable. However, a realpolitik caveat is in order. Just because the state may have the requisite power to enact such a mandate, does not mean it would be prudent—another standard of justice and good governance—at this point to attempt such a feat. The evident erosion of public trust over the past year,[155] specifically surrounding the pandemic—partially the result of disinformation, to be sure[156]—must be considered by any would-be lawmakers. So too should the effects of recent civil unrest and political polarization on the electorate be factored in.

Machiavelli often gets a bad rap. But read charitably, his instruction to rulers centers on the prudential unto the stability and longevity of the state broadly considered.[157] In this limited sense, a Machiavellian consideration is in order in our present context. Or rather, following Vermeule’s lead toward a parallel idea, we might invoke Giovanni Botero’s (1544-1617) ragion di stato, a seventeenth-century response to (and critique of) Machiavelli.[158] Vermeule writes,

Common-good constitutionalism draws inspiration from the early modern theory of ragion di stato—“reason of state,” which, despite the connotations that have become attached to its name, is not at all a tradition of unscrupulous machination. (Indeed, it was formulated precisely to combat amoral technocratic visions of rule as the maximization of princely power.) Instead, the ragion di stato tradition elaborates a set of principles for the just exercise of authority. Promoting a substantive vision of the good is, always and everywhere, the proper function of rulers… Given that it is legitimate for rulers to pursue the common good, constitutional law should elaborate subsidiary principles that make such rule efficacious. Constitutional law must afford broad scope for rulers to promote—as the ragion di stato put it, in a famous trinity of principles—peace, justice, and abundance. Today, we may add health and safety to that list, in very much the same spirit… a just state is a state that has ample authority to protect the vulnerable form the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events.[159]

Looking to Botero, we see that the chief governing principle (or virtú) in this analysis—the discernment of the reason of state, the preservation of self-perpetuating and stable rule—is prudence. The first line of Botero’s prime work, Della Ragion di Stato (1589), reads, “Reason of state is knowledge of the means suitable to found, conserve, and expand dominion.”[160] In other words, the reason of state is the exercise of prudence for the longevity of the state.[161]

A. Prudence, the first virtue

Inherent in any determinations, any human law, is the requirement of equity, proportionality, and prudence. The three are inextricably linked in the declaration (or determination) and application of law. As the sixteenth-century Danish legal philosopher, Neils Hemmingsen (1513-1600), wrote, equity in law is,

the suitable application of the law to the demands of the situation, in which is seen the law’s will and intention… or it is the moderating and amendment of the law that comes about from the prudence of the judge accommodating himself to the circumstances of the case, and bending the law to the case, not the case to the law.[162]

Prudence, a classical (or cardinal) virtue, is defined, generally, by Aquinas as “wisdom concerning human affairs.”[163] “A prudent man is one who sees as it were from afar, for his sight is keen, and he foresees the event of uncertainties.”[164] It is an intellectual virtue that belongs to the cognitive faculty, for it must “obtain knowledge of the future from knowledge of the present or past,” and perform comparative analysis unto foresight. Prudence consists not only in thought, but in thought’s application (i.e., practical reason), and must, therefore, be amenable to taking good counsel.[165] It is, as Thomas Hibbs puts it, “the appraisal of concrete, contingent circumstances.”[166]

Prudence is the first of classical virtues—the other three being temperance, fortitude, and justice—and is especially important for those who govern others. However, prudence itself does not determine the good to be pursued, only the means for pursuing it.[167] In the same way, prudence directs the application of the other virtues.[168]

Accordingly, Aquinas rooted prudence in the common good. “[S]ince it belongs to prudence rightly to counsel, judge, and command concerning the means of obtaining a due end, it is evident that prudence regards not only the private good of the individual, but also the common good of the multitude.” This is especially true of “political” prudence, which is prudence directed toward the “common good of the state or kingdom.”[169]

Now just as every moral virtue that is directed to the common good is called ‘legal’ justice, so the prudence that is directed to the common good is called ‘political’ prudence, for the latter stands in the same relation to legal justice, as prudence simply so called to moral virtue.

Recalling what Blackstone said about true, ordered liberty is found in community and obedience to the laws of society, we can see the same principle working in Aquinas’ discussion of prudence.

He that seeks the good of the many, seeks in consequence his own good, for two reasons. First, because the individual good is impossible without the common good of the family, state, or kingdom… Secondly, because, since man is a part of the home and state, he must needs consider what is good for him by being prudent about the good of the many. For the good disposition of parts depends on their relation to the whole.[170]

The individual good, then, is indistinguishable, at this level, from the common good; self-love and love of neighbor, for Aquinas, were not antithetical but rather complementary norms of justice.[171]

B. Prudence and Reason of State

Having come this far, we see the importance of public confidence in their officials (i.e., “reputation”)—the public must believe that their officials can discern and pursue the common good in order for their willing acquiescence to relevant policies to materialize. Lawmakers possess a significant amount of leeway in policymaking (i.e., determinatio), though requirements of the common good still bind determinations of circumstantial and indifferent things. That is, they must be reasonably, prudently, equitably, and proportionally fitted to serve that end—the proper purview of human lawmakers. As established above, it is the intentional and demonstrable pursuit of the common good that legitimizes determinations. At all times, the common good must encompass subsidiary interests and most especially the longevity and stability of the whole (i.e., the state). To this could also be added a general concern for public order and social tranquility. These are, of course, elements of society that are hard to quantify. That is why politics remains an art, not a science. As the seventeenth-century Protestant jurist, Johannes Althusius (1563-1638), put it, “Politics is the art of associating men for the purpose of establishing, cultivating, and conserving social life among them. Whence it is called ‘symbiotics.’”[172] However, any prudent lawmaker with their finger on the pulse of the national political landscape should be able to sense the present state of public opinion and the relative confidence in their decision-making.

Care for the common good can look different from one moment to the next depending on the circumstances—as mentioned earlier, it is partly contextualized. Sometimes change is necessary, and other times unconscionably destabilizing, and, therefore, should only be instituted sparingly.[173] This idea is why the power of determination is necessary for lawmakers. But because the common good also considers, inter alia, social cohesion, political stability, and the longevity of the state in conjunction with public health and welfare, lawmakers must, at present, ponder well what they can get away with, so to speak. If the public lacks confidence that their lawmakers will pursue the common good vis a vis public health, then the right pursuit of the common good shifts from direct concern for public health to those goods intricate to the political stability and social cohesion of the state. This shift is not to relativize the common good but rather to approach it with a comprehensive, clear-eyed, statesman-like gaze.

State lawmakers were famously advised by Chief Justice of Supreme Court of Pennsylvania, Daniel Agnew, in 1873 to “seek information of the condition of a locality, or of the public sentiment.” Agnew gave this advice because “A judicious exercise of power in one place may not be so in another. Public sentiment or local condition may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere.” The ultimate result of the inquiry being not a delegation of authority but a faithful representation of the people and promotion of their well-being.[174] In short, even if state vaccine mandates would be constitutionally tenable and rightly aimed at the common good (i.e., public health), it might be, on balance, imprudent to pursue such a policy.[175] At present, Botero might advise the Biden administration to “[g]uard against attempting an enterprise that is beyond your strength.”[176]

The political factors mitigating against a vaccine mandate at present are obvious. A summer of civil unrest combined with a contentious election and unprecedented political polarization bode ill for statewide mandates vis a vis public health. Too many citizens have been influenced by politicized narratives of the pandemic, from both the far left and far right, to happily submit to related public health mandates. As a result of the political narratives, misinformation about the pandemic abounds. And, of course, the nature of both the pandemic itself and subsequent responses thereto weighed heavily on the national election, the results of which themselves were, however erroneously, contested in a way not seen for at least 20 years.

More importantly, however, for lawmakers considering vaccine mandates is the rather amorphous factor of public trust—a factor, however amorphous, a good statesman must be able to discern. The pandemic could have, and should have, served as an opportunity to improve bipartisan public trust in governing institutions and public officials. The opposite has happened. Rightly or wrongly, the public perception of a double standard on masking, social distancing, and quarantine policies is prevalent. California Governor Gavin Newsome’s presence unmasked and un-distanced at a restaurant, the French Laundry, did nothing to instill public confidence in the equity of public health orders, but it instead stoked real or perceived class antagonism.[177] Much of the public believes that their lawmakers shirk their own public health orders. Such a perception will stifle enthusiasm for a vaccine mandate. Compounding this general perception of ruling class exceptionalism is the growing suspicion that public health measures—quarantine, lockdowns, masking, etc.—have not been as effective as people were initially led to believe. Despite some of the heaviest lockdown measures in the country, California remains the pandemic epicenter as it continues to experience coronavirus surges.[178] As the pandemic has progressed, confidence in the means, rationale, and effectiveness of public health measures has dwindled.

This phenomenon is not limited to America. It pervades the western world. A recent study in Germany, for example, discovered overwhelming, near-unwavering support for voluntary vaccination during the first and second waves of COVID-19. But also, between the first and second wave, support for mandated vaccination dropped from 44 percent to 28 percent. Why? “The most important factor predicting vaccine willingness (and how it changed between the two waves),” said the researchers, “was whether the respondent trusted public institutions.”[179] Therefore, the researchers concluded that mandated vaccination might actually “reduce vaccine willingness” and further diminish public trust. Similarly, Lawrence Gostin, Daniel Salmon, and Heidi Larson, looking to the American front, have warned that “[Vaccine] mandates can undermine public support, creating a backlash and even reducing vaccine uptake. Mandates may be useful in the future, but their implementation among any population that does not widely support vaccination could be counterproductive.”[180]

Public confidence in their leadership has further been eroded by various religious liberty court cases during the COVID-19 era. Such as, the twin cases of South Bay United Pentecostal Church v. Newsom[181] and Calvary Chapel Dayton Valley v. Sisolack,[182] wherein the Supreme Court declined to entertain the petitioner churches’ request for an injunction and to be afforded operating restrictions like those of similarly situated businesses. In the latter case, Nevada had allowed businesses to operate at 50% capacity but had restricted churches to a 50-person flat rate. This inequity, the petitioners and the dissenting justices, argued was rank inequity, and Justice Alito’s sentiment, dissenting in Calvary Chapel, resonated with many:

[A]t the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules… [B]ut a public health emergency does not give… public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As a more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.[183]

Harlan would likely have been sympathetic as well, as his sensitivity to rights established in “fundamental law” as a limitation on state action suggests. Harlan’s theory of the police power was never a blank check, and one wonders how he would have reacted to having his beloved New York Avenue Presbyterian Church shuttered for months on end. But more importantly, perhaps, Harlan would have recognized in Alito’s remarks a willingness to provide states with room to experiment with tailored solutions, so long as they were rationally related to the end in view (unto the common good, of course).[184] That end is the end of a public health emergency, which, by definition, cannot be perpetual for the sake of arbitrary exercise of state power.

And yet, for a state restriction to pass rational basis muster, it need not be perfect. Harlan clarified in Jacobson that the mere

possibility that the belief [of the legislature] may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.[185]

Judicial notice of the “common belief” was regular in public health cases before and after Jacobson.[186] Dissenters as to method and means would always exist; the general consensus, therefore, served as evidence of the reasonableness of a given policy unto the common good.[187] Common belief could be erroneous, of course. But as Judge Irving Goodwin Vann (1842-1921) put it in a 1904 New York case upholding vaccine mandates for children attending public school,

The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the Legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government.[188]

As the Supreme Court would later put it, Harlan was willing to recognize “the role of the States as laboratories for devising solutions to difficult legal problems.”[189] The classical tradition accepted that “the making of determinations may involve the election of one determination among several possible determinations, an act of the will is involved in choosing among them.”[190] But the laboratories had to remain reasonably responsive to the circumstances.

Though the Supreme Court more recently granted emergency relief to Catholic and Orthodox Jew petitioners in New York, religious citizens of all stripes are likely to remain skeptical of state public health measures as to their equitable application.[191] The “common belief” of the people is not behind legislative determinations, certain chosen solutions, at present as it may have been in 1905 after centuries of living with smallpox. In any case, the common good must consider both economic and spiritual, communal, and familial well-being. Thus far, lawmakers have failed to sufficiently factor in the latter three, if it all, to the detriment of the reputation of their governance.

IV. Conclusion

Certainly, it is right, proper, reasonable, and constitutional for the government to mandate vaccination for COVID-19, but only if done in the true interest of the common good, and only if the means reasonably and proportionally serve the purported end. Thus, a mandate is a perfectly legitimate exercise of the state police power, or rather, the power of determinatio. Many people could scarcely be convinced of that at this juncture. And they are not wholly to blame for this doubt. Therefore, lawmakers should tread lightly when considering any new public health orders or restrictions, especially as the trend tends toward easing pandemic-related policies.

The state must embark on a comprehensive assessment, and pursuit, of the common good demands a balancing of the longevity of the state, political stability, the installation of public trust between citizens and rulers, tranquility, and social cohesion, in conjunction with public health. If, as Botero (and Machiavelli, for that matter) would instruct, our current lawmakers, governors, and public health officials wish to preserve the integrity of their rule, so to speak, and along with it, the common good, they would do well to forego state vaccine mandates, at least for the time being.[192] Prudence (and patience) is a virtue.

Perhaps more interesting still, should a vaccine mandate be instituted by a state government it would almost certainly result in legal challenges—and rousing debate—which would afford the resurgent enthusiasm for Harlan’s style of jurisprudence to be tested once again. Conservative and liberal respondents to Vermeule’s now (in)famous Atlantic article were often hysterical. However, few conservatives objected to the Fifth Circuit’s In re Abbot decision, though liberals did. Following the common-good constitutionalism of Jacobson, a vaccine mandate case would provide another opportunity to test the partisan (and intramural) divide on this subject and induce further, much needed, realignment within the conservative legal movement.[193]

  1. Berkeley Lovelace, Jr. FDA staff endorses emergency use of Moderna’s Covid vaccine in a critical step toward approval, CNBC (Dec. 15, 2020), https://www.cnbc.com/2020/12/15/covid-vaccine-fda-says-modernas-data-meets-expectations-for-emergency-use.html. Johnson & Johnson has recently encountered production and distribution problems. Emma Newburger, U.S. states face steep decline in J&J Covid vaccine amid production problems at Baltimore plant, CNBC (Apr. 10, 2021), https://www.cnbc.com/2021/04/10/us-states-face-steep-decline-in-jj-vaccine-next-week-as-feds-work-to-approve-baltimore-plant.html.

  2. Katie Thomas et al., Pfizer’s Early Data Shows Vaccine Is More Than 90% Effective, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/11/09/health/covid-vaccine-pfizer.html. See also Niall Ferguson, Get Ready to Live With Covid’s Hassles Forever, Bloomberg (June 27, 2021), https://www.bloomberg.com/opinion/articles/2021-06-27/niall-ferguson-get-ready-to-live-with-covid-s-hassles-forever (arguing that some pandemic-induced restrictions will outlive the pandemic itself).

  3. Sara Morrison, Why Biden’s national mask mandate will be a national mask suggestion, Vox (Nov. 9, 2020), https://www.vox.com/21556670/biden-president-elect-mask-mandate. C.f. Joe Biden: Covid vaccination in US will not be mandatory, BBC (Dec. 5, 2020), https://www.bbc.com/news/world-us-canada-55193939; Katerina Kaganovich, Mask Mandates Are Constitutional. Here Is Why, Columbia Political Review (Jan. 4, 2021), http://www.cpreview.org/blog/2021/1/mask-mandates-are-constitutional-here-is-why.

  4. Leah Asmelash et al., Most states now require face masks to reduce the spread of Covid-19. These are the ones that don’t, CNN (Dec. 8, 2020), https://www.cnn.com/2020/11/09/us/biden-mask-mandate-nationwide-trnd/index.html.

  5. Jiachuan Wu et al., Mask mandates are being lifted across the country. See if there’s a mandate in your state, NBC News (Mar. 10, 2021), https://www.nbcnews.com/news/us-news/mask-mandates-are-being-lifted-across-country-see-if-there-n1259448; Kaia Hubbard, These States Have COVID-19 Mask Mandates, U.S. News (Apr. 9, 2021), https://www.usnews.com/news/best-states/articles/these-are-the-states-with-mask-mandates. Of course, some states never instituted masking requirements. Priscella Vega, A dozen U.S. states remain without mask mandates to protect against COVID-19. Why?, L.A. Times (Dec. 11, 2021), https://www.latimes.com/world-nation/story/2020-12-11/mask-mandates.

  6. Donald G. McNeil, Jr., New York City Is Requiring Vaccinations Against Measles. Can Officials Do That?, N.Y. Times (Apr. 9, 2019), https://www.nytimes.com/2019/04/09/health/measles-outbreak-vaccinations-brooklyn.html. For a general and recent history of the reception of vaccines in America, see Elena Conis, Vaccine Nation: America’s Changing Relationship with Immunization (2015). In early August 2021, de Blasio instituted a requirement of proof of vaccine for all workers and customers of indoor dining and similar activities. New York City was, at the time, the first in the nation to do so. Emma G. Fitzsimmons et al., N.Y.C. will require workers and customers show proof of at least one dose for indoor dining and other activities, N.Y. Times (Aug. 3, 2021), https://www.nytimes.com/2021/08/03/nyregion/nyc-vaccine-mandate.html.

  7. Richard Harris, FDA Approves Pfizer’s COVID-19 Vaccine For Distribution, NPR (Dec. 14, 2020), https://www.npr.org/2020/12/14/946222127/fda-approves-pfizers-covid-19-vaccine-for-distribution.

  8. Katie Thomas et al., F.D.A. Clears Pfizer Vaccine, and Millions of Doses Will Be Shipped Right Away, N.Y. Times (Dec. 11, 2020), https://www.nytimes.com/2020/12/11/health/pfizer-vaccine-authorized.html.

  9. Vaccine Access Expands to All NYers Age 16+: What to Know Before Booking Your Shot, NBC New York (Apr. 6, 2021), https://www.nbcnewyork.com/news/coronavirus/cuomo-opens-vaccine-eligibility-to-all-nyers-age-16-and-older-what-to-know/2982702/.

  10. Madeleine Ngo, New Hampshire and Oklahoma are the latest states to open vaccinations to outside residents, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/world/nh-oklahoma-covid-vaccine-eligible.html.

  11. Jules Darmanin, French bill could restrict freedom of movement over vaccination status during crises, Politico (Dec. 22, 2020), https://www.politico.eu/article/france-vaccination-bill-freedom-of-movement/.

  12. Madeline Roache, Europe’s Second Wave of COVID-19 is Being Driven by Two Countries. Here’s Why, Time (Oct. 29, 2020), https://time.com/5902172/europe-coronavirus-second-wave-belgium-czech-republic/; Margherita Stancati et al., Europe’s Covid-19 Cases and Deaths Are Climbing, a Warning for the U.S., Wall St. J. (Oct. 29, 2020), https://www.wsj.com/articles/europes-covid-19-cases-and-deaths-are-climbing-a-warning-for-the-u-s-11603992597. Out of scope here is the chance that employers may mandate the vaccine. Nicole A. Stockey et al., COVID-19: Mandatory Vaccinations: New EEOC Publication Provides Timely Guidance for Employers, 10 Nat’l L. Rev. 358 (2020), https://www.natlawreview.com/article/covid-19-mandatory-vaccinations-new-eeoc-publication-provides-timely-guidance.

  13. Vavricka v. Czech Republic, App No. 47621/13 (April 8, 2021) https://hudoc.echr.coe.int/fre#{“itemid”:[“001-209039”]}. For further discussion see Part I.A. See also Jeff King et al., Mandatory Vaccination and the Law, Lex-Atlas: Covid-19 (Apr. 26, 2021), https://lexatlas-c19.org/symposium-editorial-compulsory-vaccination-policies-part-i/ (inter alia, analyzing the Czech case).

  14. Megan Scudellari, How the pandemic might play out in 2021 and beyond, Nature (Aug. 5, 2020), https://www.nature.com/articles/d41586-020-02278-5.

  15. James Gorman & Carl Zimmer, The Virus Won’t Stop Evolving When the Vaccine Arrives, N.Y. Times (Nov. 27, 2020), https://www.nytimes.com/2020/11/27/science/covid-vaccine-virus-resistance.html.

  16. Aziz Sheikh et al., SARS-CoV-2 Delta VOC in Scotland: demographics, risk of hospital admission, and vaccine effectiveness, The Lancet (June 14, 2021), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)01358-1/fulltext.

  17. Sam Meredith, Dr. Fauci says ‘help is on the way’ with vaccines, but doubts Covid can ever be eradicated, CNBC (Nov. 12, 2020), https://www.cnbc.com/2020/11/12/coronavirus-dr-fauci-says-he-doubts-whether-covid-can-be-eradicated.html.

  18. Larry Brilliant et al., The Forever Virus: A Strategy for the Long Fight Against COVID-19, Foreign Aff’s (July/August 2021), https://www.foreignaffairs.com/articles/united-states/2021-06-08/coronavirus-strategy-forever-virus.

  19. Sanjay Mishra, The Delta variant is serious. Here’s why it’s on the rise, Nat’l Geographic (June 16, 2021), https://www.nationalgeographic.com/science/article/the-delta-variant-is-serious-heres-why-its-on-the-rise.

  20. Holyy Yan & Madeline Holcombe, With the more contagious Delta variant, some officials are issuing new mask guidance, CNN (June 29, 2021), https://www.cnn.com/2021/06/29/health/us-coronavirus-tuesday/index.html; Jonathan Corum & Carl Zimmer, Coronavirus Variants and Mutations, N.Y. Times (June 4, 2021), https://www.nytimes.com/interactive/2021/health/coronavirus-variant-tracker.html; Ewen Callaway, Delta coronavirus variant: scientists brace for impact, Nature (June 22, 2021), https://www.nature.com/articles/d41586-021-01696-3; Tanya Lewis, How Dangerous Is the Delta Variant, and Will It Cause a COVID Surge in the U.S.?, Sci. Am. (June 29, 2021), https://www.scientificamerican.com/article/how-dangerous-is-the-delta-variant-and-will-it-cause-a-covid-surge-in-the-u-s/; Apoorv Mandavilli, C.D.C. Internal Report Calls Delta Variant as Contagious as Chickenpox, N.Y. Times (July 30, 2021), https://www.nytimes.com/2021/07/30/health/covid-cdc-delta-masks.html.

  21. Delphine Planas et al., Reduced Sensitivity of SARS-CoV-2 Variant Delta to Antibody Neutralization, Nature (July 8, 2021), https://www.nature.com/articles/s41586-021-03777-9.

  22. Erika Fry & Nicolas Rapp, 20.9% of the world has received a COVID vaccine. See how your country is doing, Fortune (June 16, 2021), https://fortune.com/2021/06/16/covid-vaccine-tracker-update-map-world-countries-coronavirus-vaccines-pfizer-moderna-astrazeneca-johnson-johnson-vaccinations-june/; Edouard Mathieu et al., A global database of COVID-19 vaccinations, Nature Hum. Behav. (2021), https://www.nature.com/articles/s41562-021-01122-8#citeas.

  23. Benjamin Hart, U.S. Vaccination Pace Stalls After Months of Growth, N.Y. Mag. (Apr. 22, 2021), https://nymag.com/intelligencer/2021/04/covid-vaccination-numbers-stall-after-months-of-growth.html; Jesus Jiménez & Andrés R. Martínez, The rush to vaccinate the world stalls as funds and doses fall short, N.Y. Times (June 6, 2021), https://www.nytimes.com/2021/06/06/world/vaccine-coronavirus-global-stalls.html. Hesitancy amongst younger people has continued to stunt vaccine rates as well. Katherine Dunn, Vaccine hesitancy among young people could still stall herd immunity, Fortune (July 14, 2021), https://fortune.com/2021/07/14/young-people-vaccine-hesitancy-herd-immunity/.

  24. See e.g. Jordan Allen et al., Tracking Coronavirus in Billings County, N.D., N.Y. Times (June 28, 2021), https://www.nytimes.com/interactive/2021/us/billings-north-dakota-covid-cases.html.

  25. Jacob Passy, ‘Book travel as soon as possible.’ Americans are flying again as vaccines roll out — and soon it could be hard to find cheap airfare, MarketWatch (Apr. 2, 2021), https://www.marketwatch.com/story/book-travel-as-soon-as-possible-americans-are-flying-again-and-soon-it-could-be-hard-to-find-vacation-discounts-11615572165. Indeed, Americans are itching to travel again. A Trivago poll from February 2021 showed that 38% of Americans would give up sex to travel again. Bre’Anna Grant, Americans are so desperate to travel again that 38% of them would give up sex for a year just to go on a trip, new survey shows, Insider (Feb. 19, 2021), https://www.insider.com/americans-would-give-up-sex-to-travel-again-survey-shows-2021-2.

  26. Matteo Chinazzi et al., The effect of travel restrictions on the spread of the 2019 novel coronavirus (COVID-19) outbreak, 368 Science 6489 (Apr. 24, 2020), https://science.sciencemag.org/content/368/6489/395.

  27. Danielle Zoellner, Fauci warns Covid vaccine won’t immediately stop deaths, as Christmas could make pandemic worse than ever, Indep. (Dec. 7, 2020), https://www.independent.co.uk/news/world/americas/fauci-covid-vaccine-latest-christmas-b1767599.html. See also Noah Higgins-Dunn, Rising Covid cases can’t be blamed on variants alone as travel resumes, states lift restrictions, Fauci says, CNBC (Mar. 28, 2021), https://www.cnbc.com/2021/03/28/fauci-rise-in-covid-cases-cant-be-blamed-on-variants-alone-as-travel-resumes.html.

  28. Jason Horowitz, For Europe, It’s Wave After Wave, N.Y. Times (Dec. 22, 2020), https://www.nytimes.com/interactive/2020/12/22/world/europe/covid-europe-hospitals.html; Quoctrung Bui & Sarah Kliff, Air Travel Is Already Back to Normal in Some Places. Here’s Where, N.Y. Times (Apr. 1, 2021), https://www.nytimes.com/2021/04/01/upshot/flights-rebounding-vacations.html.

  29. Alexandria Hein, Coronavirus vaccine won’t mean end of public health measures, Fauci says, Fox News (Nov. 19, 2020), https://www.foxnews.com/health/coronavirus-vaccine-public-health-measures-fauci; Adam Rogers, Does the AstraZeneca Vaccine Also Stop Covid Transmission?, Wired (Nov. 25, 2020), https://www.wired.com/story/does-the-astrazeneca-vaccine-also-stop-covid-transmission/.

  30. Connor Perrett, WHO says fully vaccinated people should continue to wear masks because of Delta variant spread, Insider (June 26, 2021), https://www.businessinsider.com/delta-variant-who-fully-vaccinated-wear-masks-2021-6; Julie Steenhuysen, Explainer: Beyond Delta, scientists are watching new coronavirus variants, Reuters (Aug. 8, 2021),

  31. Peter Hotex et al., Correcting COVID-19 vaccine misinformation, 33 The Lancet, Mar. 1, 2021), https://www.thelancet.com/journals/eclinm/article/PIIS2589-5370(21)00060-2/fulltext.

  32. Chris Dall, Americans increasingly skeptical of COVID vaccine, poll finds, Ctr. for Infectious Disease Res. and Pol’y (Sept. 18, 2020), https://www.cidrap.umn.edu/news-perspective/2020/09/americans-increasingly-skeptical-covid-vaccine-poll-finds.

  33. Cary Funk & Alec Tyson, Intent to Get a COVID-19 Vaccine Rises to 60% as Confidence in Research and Development Process Increases, Pew Res. Center (Dec. 3, 2020), https://www.pewresearch.org/science/2020/12/03/intent-to-get-a-covid-19-vaccine-rises-to-60-as-confidence-in-research-and-development-process-increases/.

  34. Karen Nikos-Rose, A Third of Americans Say They Are Unlikely or Hesitant to Get COVID-19 Vaccine, UC Davis (Jan. 29, 2021), https://www.ucdavis.edu/news/third-americans-say-they-are-unlikely-or-hesitant-get-covid-19-vaccine.

  35. Zakiya Whatley & Titilayo Shodiya, Why So Many Americans Are Skeptical of a Coronavirus Vaccine, Sci. Am. (Oct. 12, 2020), https://www.scientificamerican.com/article/why-so-many-americans-are-skeptical-of-a-coronavirus-vaccine/; Dezimey Kum, Fueled by a History of Mistreatment, Black Americans Distrust the New COVID-19 Vaccines, Time (Dec. 28, 2020), https://time.com/5925074/black-americans-covid-19-vaccine-distrust/.

  36. Adrian Florido, Many Hispanic And Black People Say They Are Skeptical About COVID-19 Vaccine, NPR (Dec. 10, 2020), https://www.npr.org/2020/12/10/945136592/many-hispanic-and-black-people-say-they-are-skeptical-about-covid-19-vaccine.

  37. Nick Triggle, Is Covid at risk of becoming a disease of the poor?, BBC (Feb. 25, 2021), https://www.bbc.com/news/health-56162075.

  38. Americans aware of Delta coronavirus variant, but re-emergence continues, Ipsos (June 29, 2021), https://www.ipsos.com/en-us/news-polls/axios-ipsos-coronavirus-index.

  39. Tammy Webber & Emily Swanson, AP-NORC poll: Most unvaccinated Americans don’t want shots, Associated Press (July 23, 2021), https://apnews.com/article/joe-biden-science-health-government-and-politics-coronavirus-pandemic-36ea18ee3a3397da7edd5b8249f0e477.

  40. Emily Anthes, Younger adults are less likely to get vaccinated than their elders, new C.D.C. studies say, N.Y. Times (June 21, 2021), https://www.nytimes.com/2021/06/21/health/vaccination-young-adults.html. Offering the proverbial “carrot” over the “stick” has, by in large, not proven effective. Tara John, Europe tried to boost Covid-19 vaccine takeup with carrots. Now some leaders are breaking out the sticks, CNN (July 26, 2021), https://www.cnn.com/2021/07/26/europe/europe-vaccine-mandate-passport-certificate-intl-gbr-cmd/index.html.

  41. Joe Pierre, Why Aren’t Some People Taking COVID-19 More Seriously?, Psychol. Today (Mar. 26, 2020), https://www.psychologytoday.com/us/blog/psych-unseen/202003/why-arent-some-people-taking-covid-19-more-seriously; Isaac Chotiner, How to Talk to Coronavirus Skeptics, New Yorker (Mar. 23, 2020), https://www.newyorker.com/news/q-and-a/how-to-talk-to-coronavirus-skeptics.

  42. Cathy O’Neil, 10 Reasons to Doubt the Covid-19 Data, Bloomberg (Apr. 13, 2020), https://www.bloomberg.com/opinion/articles/2020-04-13/ten-reasons-to-doubt-the-covid-19-data. See also Janyce Eunic Gnanvi et al., On the reliability of predictions on Covid-19 dynamics: A systematic and critical review of modelling techniques, 6 Infectious Disease Modelling 258 (Jan. 12, 2021) (“The dynamics of Covid-19 transmission have been analysed in numerous studies which have tried to predict the spread of the disease using the above models. While the predictions made by some of the models used are close to the observed reality, predictions made by other models have proven to be inaccurate.”); Vincent Chin et al., A case study in model failure? COVID-19 daily deaths and ICU bed utilisation predictions in New York state, 35 Eur. J. of Epidemiology 733 (2020) (finding that, after analyzing four prediction models for daily COVID-19 death counts in New York state used to direct policy decisions, “[f]or accuracy of prediction, all models fared very poorly.”).

  43. Carl Zimmer, 2 Companies Say Their Vaccines Are 95% Effective. What Does That Mean?, N.Y. Times (Nov. 20, 2020), https://www.nytimes.com/2020/11/20/health/covid-vaccine-95-effective.html; Sharon Otterman, ‘I Trust Science,’ Says Nurse Who Is First to Get Vaccine in U.S., N.Y. Times (Dec. 14, 2020), https://www.nytimes.com/2020/12/14/nyregion/us-covid-vaccine-first-sandra-lindsay.html.

  44. This has only been compounded by the persistent politicization of the pandemic and medical treatment. See Timon Cline, Identity Politics After Covid-19: The Same, But Worse, Areo (Mar. 12, 2020), https://areomagazine.com/2020/05/12/identity-politics-after-covid-19-the-same-but-worse/. See also P. Sol Hart et al., Politicization and Polarization in COVID-19 News Coverage, Sci. Comm. (Aug. 25, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7447862/; Adam Edelman, Biden slams politicization of Covid pandemic: ‘It’s a virus, not a political weapon’, NBC News (Oct. 6, 2020), https://www.nbcnews.com/politics/2020-election/biden-slams-politicization-covid-pandemic-it-s-virus-not-political-n1242350.

  45. C.f. Cade Metz, Trump’s Win Isn’t the Death of Data—It Was Flawed All Along, Wired (Nov. 9, 2016), https://www.wired.com/2016/11/trumps-win-isnt-death-data-flawed-along/.

  46. Stephanie Desmon, Could COVID-19 vaccines become mandatory in the U.S.?, Hub (Nov. 20, 2020), https://hub.jhu.edu/2020/11/20/could-coronavirus-vaccines-become-mandatory/.

  47. See e.g., Adam Taylor, No jab, no job: As British companies move to mandate coronavirus vaccines for employees, discrimination fears mount, Wash. Post (Mar. 6, 2021), https://www.washingtonpost.com/world/2021/03/06/jabs-for-jobs-britain-coronavirus-mandatory-vaccines/. C.f. Janella T. Gholian, et al., Employers’ Next COVID-19 Conundrum: To Mandate Vaccination, or Not to Mandate Vaccination? 11 Nat’l L. Rev. 101 (Feb. 22, 2021), https://www.natlawreview.com/article/employers-next-covid-19-conundrum-to-mandate-vaccination-or-not-to-mandate.

  48. Eliza Fawcett, Parents threaten to sue UConn over COVID-19 vaccine mandate, Hartford Courant (June 29, 2021), https://www.courant.com/coronavirus/hc-news-coronavirus-uconn-vaccination-pushback-20210629-knxlyjubgvfw7hh24bk4beo7we-story.html; Rebekah Riess & Steve Almasy, Students sue Indiana University in federal court over vaccine mandate, CNN (June 23, 2021), https://www.cnn.com/2021/06/22/us/indiana-university-covid-19-vaccination-lawsuit/index.html; Sam Stanton, Students sue over California university’s COVID vaccine mandate, saying shots could harm them, Sacramento Bee (June 25, 2021), https://www.sacbee.com/news/california/article252365048.html. More than 500 colleges nationwide—many private but some public—will require students and employees to be vaccinated for the 2021-2022 academic year. Andy Thomason & Brian O’Leary, Here’s a List of Colleges That Require Students or Employees to Be Vaccinated Against Covid-19, Chron. of Higher Educ. (July 28, 2021), https://www.chronicle.com/blogs/live-coronavirus-updates/heres-a-list-of-colleges-that-will-require-students-to-be-vaccinated-against-covid-19.

  49. Robert Iafolla, Vaccine Mandate Lawsuits Sparked by Shots’ Emergency Status, Bloomberg Law (June 7, 2021), https://news.bloomberglaw.com/daily-labor-report/vaccine-mandate-lawsuits-sparked-by-shots-emergency-status; Andrew L. Metcalf & James M. Paul, Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back, 11 Nat’l L. Rev. 166 (June 15, 2021), https://www.natlawreview.com/article/mandatory-vaccination-policy-lawsuit-update-nurses-take-shot-against-hospital-judge; Kelly Gooch, 117 Houston Methodist employees sue over COVID-19 vaccine mandate, Becker’s Hosp. Rev. (June 14, 2021), https://www.beckershospitalreview.com/legal-regulatory-issues/117-houston-methodist-employees-sue-over-covid-19-vaccine-mandate.html; Todd Zywicki, Why I’m Suing Over My Employer’s Vaccine Mandate, Wall St. J. (Aug. 6, 2021), https://www.wsj.com/articles/vaccine-mandate-natural-immunity-lawsuit-covid-19-coronavirus-11628281507.

  50. See Michael A. Peters, The coming pandemic era, Ed. Phil. & Theory (2020), available at https://www.tandfonline.com/doi/pdf/10.1080/00131857.2020.1835647?needAccess=true; Peter Daszak, We are entering an era of pandemics—it will end only when we protect the rainforest, Guardian (July 28, 2020), https://www.theguardian.com/commentisfree/2020/jul/28/pandemic-era-rainforest-deforestation-exploitation-wildlife-disease. This was in some ways predicted in 2017 by Time following the Ebola outbreak. See Bryan Walsh, The World Is Not Ready for the Next Pandemic, Time (May 4, 2017), https://time.com/4766624/next-global-security/.

  51. Press Release: Escaping the ‘Era of Pandemics’: Experts warn worse crises to come options offered to reduce risk, United Nations Env’t Programme (Oct. 29, 2020), https://www.unep.org/news-and-stories/press-release/escaping-era-pandemics-experts-warn-worse-crises-come-options.

  52. Aaron E. Carroll, Vaccine Mandates Are Coming. Good., N.Y. Times (June 28, 2021), https://www.nytimes.com/2021/06/28/opinion/covid-vaccine-mandate.html; Katrin Schmelz & Samuel Bowles, Imposing vaccine mandates may be counterproductive, our research suggests, Wash. Post (June 7, 2021), https://www.washingtonpost.com/politics/2021/06/07/imposing-vaccine-mandates-may-be-counterproductive-our-research-suggests/.

  53. Marc Caputo, Poll: Majorities support vaccine, mask mandates — but not Republicans, Politico (Aug. 11, 2021), https://www.politico.com/news/2021/08/11/majorities-support-vaccine-mask-mandates-republicans-503506.

  54. The Nomination of Elena Kagan to be an Associate Justice of The Supreme Court of The United States: Hearing Before the Comm. on the Judiciary, 111th Cong. 62 (2nd Sess. 2010) (Statement of Elena Kagan); Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate 1 (2011). See also Jack Balkin, Living Originalism (2011); Paul Blumenthal, How Liberals Learned to Love Scalia-Style Constitutional Originalism, HuffPost (Feb. 4, 2019), https://www.huffpost.com/entry/progressive-conservative-supreme-court_n_5c54b484e4b09293b2041533; Robert Post, Liberal Originalism, New Republic (Sept. 17, 2007), https://newrepublic.com/article/62926/liberal-originalism.

  55. Adrian Vermeule, Beyond Originalism, The Atlantic (Mar. 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/. Vermeule’s heterodoxy sparked a months-long debate. See e.g., Josh Hammer, Common Good Originalism, Am. Mind (May 6, 2020), https://americanmind.org/features/waiting-for-charlemagne/common-good-originalism/; John Ehrett, The Oath-Breaking Dilemma, Am. Mind (May 19, 2020), https://americanmind.org/features/waiting-for-charlemagne/the-oath-breaking-dilemma/; James W. Ceaser, Adrian Vermeule’s Sixteenth-Century Constitutionalism, Heritage Found. (Apr. 17 2020), https://www.heritage.org/the-constitution/commentary/adrian-vermeules-sixteenth-century-constitutionalism; Conor Casey, “Common Good Constitutionalism” and the New Debate over Constitutional Interpretation in the United States, Pub. L. (Forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3725068; Josh Hammer, Common Good Originalism: Our Tradition and Our Path Forward, 4 Harv. J. L. & Pub. Pol’y 917 (2021).

  56. Vermeule, supra note 55.

  57. The debate instigated by Vermeule, and his attempt at a classical law renaissance, is imbedded in the so-called postliberal reassessment within greater conservativism currently raging and inaugurated by Patrick Deneen’s Why Liberalism Failed (2018) and the (in)famous Sohrab Ahmari-David French debate at the Catholic University of America. See e.g., Benjamin Wallace-Wells & David French, Sohrab Ahmari, and the Battle for the Future of Conservatism, New Yorker (Sept. 12, 2019), https://www.newyorker.com/news/the-political-scene/david-french-sohrab-ahmari-and-the-battle-for-the-future-of-conservatism; Park MacDougald, A Catholic Debate over Liberalism, City J. (Winter 2020), https://www.city-journal.org/catholic-debate-over-liberalism.

  58. Logan Stagg Istre, Theodore Roosevelt and the Case for a Popular Constitution, 4 Am. Aff’s 3 (Fall 2020), https://americanaffairsjournal.org/2020/08/theodore-roosevelt-and-the-case-for-a-popular-constitution/; Christopher W. Schmidt, Popular Constitutionalism on the Right: Lessons from the Tea Party, 88 Den. U. L. Rev. 523 (2011); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Cal. L. Rev. 1027 (2004).

  59. Jeffrey Rosen, Popular Constitutionalism, N.Y. Times (Dec. 12, 2004), https://www.nytimes.com/2004/12/12/magazine/popular-constitutionalism.html. See also Mark Tushnet, Taking the Constitution Away from the Courts (1999); William E. Forbath, Popular Constitutionalism in the Twentieth Century: Reflections on the Dark Side, the Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in Popular Understandings of Popular Self-Rule, 81 Chi-Kent L. Rev. 967 (2006).

  60. 197 U.S. 11 (1905).

  61. Note, Toward a Twenty-First-Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820, 1822 (2008); see also James Colgrove & Ronald Bayer, Manifold Restraints: Liberty, Public Health, and the Legacy of Jacobson v. Massachusetts, 95 Am. J. Pub. Health 571-76 (2005); Wendy K. Mariner et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581-90 (2005); Ben Horowitz, A Shot in the Arm: What A Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During a Public Health Crisis, 60 Am. Univ. L. Rev. 1175 (2011); Lawrence O. Gostin, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Amer. J. Pub. Health 576 (Apr. 2005); Daniel Farber, The Long Shadow of Jacobson v. Massachusetts: Public Health, Fundamental Rights, and the Court, 57 San Diego L. Rev. 833 (2020).

  62. Michael R. Albert et al., The Last Smallpox Epidemic in Boston and the Vaccination Controversy, 1901-03, 344 N.E. J. Med. 375 (2001). See generally Michael Willrich, Pox: An American History (2011); Gostin, supra note 61 at 576-81 (Apr. 2005).

  63. Jacobson, 197 U.S. at 12-13 (Statement of the Case).

  64. The same outbreak was plaguing the United Kingdom. Bernard Brabin, An Analysis of the United States and United Kingdom Smallpox Epidemics (1901-5)—The Special Relationship that Tested Public Health Strategies for Disease Control, 64 Med. Hist. 1 (2020).

  65. For some background on the case, see Nicholas Mosvick, On this day, the Supreme Court rules on vaccines and public health, Nat. Const. Ctr. (Feb. 20, 2020), https://constitutioncenter.org/interactive-constitution/blog/on-this-day-the-supreme-court-rules-on-vaccines-and-public-health. See also Willrich, supra note 62, at 285-336 (2011).

  66. Commonwealth v. Pear, 66 N.E. 719, 722 (Mass. 1903).

  67. Gostin, supra note 61, at 1822.

  68. Jacobson, 197 U.S. at 15-17 (Argument for Plaintiff in Error).

  69. 163 U.S. 537. See also Molly Townes O’Brien, Justice John Marshall Harlan as Prophet: The Plessy Dissenter’s Color-Blind Constitution, 6 Wm. & Mary Bill Rts. J. 753 (1998); Lewis Isaac Maddocks, Justice John Marshall Harlan: Defender of Individual Rights (1959) (unpublished Ph.D. dissertation, Ohio State University); Brian L. Frye et al., Justice John Marshall Harlan: Professor of Law, 81 Geo. Wash. L. Rev. 1063 (2013); G. Edward White, John Marshall Harlan I: The Precursor, 19 Am. J. Legal Hist. 1 (1975); Gabriel J. Chin, The First Justice Harlan by the Numbers: Just How Great was “The Great Dissenter?” 32 Akron L. Rev. 1 (1999); Henry J. Abraham, John Marshall Harlan: A Justice Neglected, 41 Va. L. Rev. 871, 872 (1955) (noting that Harlan wrote 703 majority opinions, 100 concurring ones, and 316 dissenting ones in his more than 33 years on the bench). For the most recent biographical treatment of Harlan, see Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (2021).

  70. A few years prior, Harlan had joined Justice Henry Billings Brown in dissent in Compagnie Francaise de Navigatin a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902). Harlan and Billings argued that whilst the quarantine laws at issue in Compagnie were constitutional, Louisiana’s policy had exceeded the scope of the state’s authority over interstate commerce and violated multiple international treaties to which the United States was a party.

  71. See generally Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991). See also Commonwealth v. Pear, 183 Mass. 242, 245 (1903) (“Under the police power there is general legislative authority to make laws for the common good.”).

  72. The linguistic and historical origins of the “police” powers demonstrate a close association

    between government and civilization: politia (the state), polis (city), and politeia (citizenship). “Police” was meant to describe those powers that permitted sovereign government to exercise authority to promote the common good, notably health and safety. “Police” had a secondary usage as well: cleansing or keeping clean, which resonates with public health connotations of hygiene and sanitation. Vaccination is squarely within the police powers, as the most effective intervention to prevent the societal spread of infectious diseases. No individual acting alone can prevent the transmission of dangerous pathogens, which is why government has a special responsibility to safeguard the common good.

    Lawrence O. Gostin, Mandatory Vaccination: Understanding the Common Good in the Midst of the Global Polio Eradication Campaign, 7 Isr. J. Health Policy Res., January 3, 2018, at 2.

  73. Jacobson, 197 U.S. at 25.

  74. Harlan was a staunch Presbyterian who taught Sunday school at New York Avenue Presbyterian Church in Washington D.C. from 1896 to his death in 1911. His invocation of the mutual covenant between citizens and the government in Jacobson as the basis of the state police power is doubtless informed by well-established covenantal political theory in the Presbyterian tradition. Harlan’s mention of republican principles undergirding the view of state power and the common good expressed in Jacobson further evinces this heritage. See e.g., Theodore Dwight Bozeman, Federal Theology and the ‘National Covenant’: An Elizabethan Presbyterian Case Study, 61 Church Hist. 394 (Dec. 1992); John Witte, Jr. Blest Be the Ties That Bind: Covenant and Community in Puritan Thought, 36 Emory L. J. 579 (1987); John D. Eusden, Natural Law and Covenant Theology in New England, 1620-1670, Natural L. Forum 47 (1960). On Harlan’s religion, see generally Linda Przybyszewski, The Republic According to John Marshall Harlan 48 (1999). It was Harlan who, in 1906, donated the King James Bible to the Supreme Court that is now signed by every incoming justice. James W. Gordon, Religion and the First Justice Harlan: A Case Study in Late Nineteenth Century Presbyterian Constitutionalism, 85 Marq. L. Rev. 317, 321 (2001) (“He was not just a judge. Harlan was a Calvinist judge.”). See also Goodridge v. Department of Public Health, No. 20011647A, 2002 WL 1299135, at *8 (Mass. Super. May 7, 2002) (“The Preamble to the Massachusetts Constitution also makes clear that our social contract as a Commonwealth aims at the twin purposes of securing the common good [and] insuring the conditions for individual liberty and happiness.”).

  75. Jacobson, 197 U.S. at 27 (quoting Mass. Const. art. VII, pt. I).

  76. Jacobson, 197 U.S. at 27 (citing Commonwealth v. Alger, 61 Mass. 53, 84 (1851)). On Lemeul Shaw’s influence on the direction of eminent domain and police power, see Leonard W. Levy, Lemeul Shaw: America’s Greatest Magistrate, 7 Vill. L. Rev. 389 (1962). As judge Knowlton had written in Commonwealth v. Pear,

    Article 4 of c. 1, § 1, of the Constitution of Massachusetts states more fully than most constitutions the nature of this power, when it gives authority to the “General Court, from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without ; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth,” etc.

    183 Mass. 245 (1903). Knowlton also cited Haverty v. Bass, for the proposition that “[s]ometimes it is necessary that persons be held in quarantine.” 66 Me. 71 (1876).

  77. For further comments from Harlan on the state police power, see Brian L. Frye, Josh Blackmun, & Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, Lecture 10 (Dec. 18, 1897), in 81 Geo. Wash. L. Rev. Arguendo 12, 125-132 (2013). [Hereinafter, Lectures]. As Regina M. Ward summarized, the twofold test of police power application is “(1) Is there an evil?; and (2) Do the means selected have a real and substantial relation to the object to be attained?” Ward, Constitutional Law-Police Power-Municipal Ordinance-Philadelphia Curfew Law, 1 Vill. L. Rev. 52, 54 (1956). See also, Bolster v. City of Lawrence, 255 Mass. 387 (1917) (noting that the “common good of all” test was meant to distinguish between governmental activity that was exclusively purposed for the public interest as opposed to that which was “of special corporate benefit or pecuniary profit.”). For a more recent example of invocation of the common good as a limitation on both government and private activity, see e.g., 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn. App. 377, 389, cert. denied, 264 Conn. 919 (2003) (“Generally, agreements contrary to public policy, that is those that negate laws enacted for the common good, are illegal and therefore unenforceable.”).

  78. See Willrich, supra note 62, at 301.

    When considering the almost indeterminate scope of the police power, nineteenth-century American jurists referred to two great common law maxims: sic utere tuo ut alienum non laedas (use your own so as not to injure another) and salus populi suprema lex est (the welfare of the people is the supreme law). In “well-ordered societies,” state governments and municipalities served the people’s welfare in ways too numerous to list: they upheld public morals by policing saloons and brothels, ensured public safety through fire and crime prevention, governed the marketplace through price regulations and licensing, and protected the public health by policing noxious trades and enforcing quarantines to check contagious diseases.

  79. Story, 1 Commentaries on the Constitution 447 (ed. Melville M. Bigelow, 1905 [1833]). See also id. at 323 (offering the common good as the basis of government and, therefore, instrumental to constitutional interpretation).

  80. 197 U.S. at 27 (“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”). Harlan also justified the court’s stance on the basis of separation of powers. Id. at 28, 35 (“[N]o court, much less a jury, is justified in disregarding the action of the legislature simply because, in its or their opinion, that particular method was – perhaps or possibly – not the best either for children or adults.”). Self-defense or self-preservation, of course, has long been considered one of the first principles of natural law. See e.g., Cook v. Corn, 1 Tenn. 340, 342 (1808) (“Self-preservation . . . the first law of nature.”). On self-preservation and early modern natural law theory generally, see Heikki Haara, Inclination to Self-Preservation and Rights to Life and Body in Samuel Pufendorf’s Natural Law Theory, in Rights at the Margins 87-108 (2020); Eleanor Curran, The Full Right to Self-Preservation and Sovereign Duties, in Reclaiming the Rights of the Hobbesian Subject 103-122 (2007). See also David B. Kopel, The Natural Right of Self-Defense: Heller​​’s Lesson for the World, 59 Syracuse L. Rev. 999 (2008); Claire Oakes Finkelstein, On the Obligation of the State to Extend a Right of Self-Defense to Its Citizens, 147 U. Penn. L. Rev. 1361 (1999). Of note is what Richard H. Helmholz has argued, viz., that lawyers in the early republic “assumed congruity between [natural law] and others sources of law.” Helmholz, The Law of Nature and the Early History of Unenumerated Rights in the United States, 9 U. Penn. J. Const. Law 401, 417 (2007).

  81. Jacobson, 197 U.S. at 27 (quoting Mass. Const. art. VII, pt.I).

  82. See also State v. Hay, 35 S.E. 459, 462 (1900) (connecting the submission of individual interests to the common good and the right of communal self-defense).

  83. Though, as a Presbyterian, Harlan would have differed from the Congregationalist of New England on matters of church polity, both parties shared a common theological and confessional heritage. See generally Linda Przybyszewski, John Marshall Harlan the Elder, in Great Christian Jurists in American History 179-193 (2019).

  84. Perry Miller, Errand into the Wilderness 143(1956).

  85. See generally Perry Miller, The New England Mind 398-431 (1939); John Witte, Jr., supra note 74; E. Clinton Gardner, Justice in the Puritan Covenantal Tradition, 6 J. of L. and Religion 360 (1988); Ralph H. Clover, The Rule of Law in Colonial Massachusetts, 108 U. Penn. L. Rev. 1001, 1018-22 (1960). For a non-Puritan source of the period, see e.g., Richard Hooker, Of the Lawes of Ecclesiastical Politie, bk. 1, at 26 (1617): “To take away all such mutuall grieuances, iniuries and wrongs, there was no way but onely by growing vnto composition and agreement amongst themselues, by ordaining some kind og Gouerment publike and by yielding themselues subject thereunto; that vnto whom they granted authoritie to rule and gouerne, by them the peace, tranquillitie, and happy estate of the rest might bee procured.” Hence, Hooker held that the allocation of “publicke power” was subject to the choice of the “independent multitude” which instituted it. Id., bk. 8, ch. 2, § 5.

  86. John Davenport, A Sermon Preach’d at the Election​​…​​ (1670).

  87. The Westminster Confession of Faith (1647), to which Harlan subscribed, made clear that God had “ordained civil magistrates to be under Him, over the people, for His own glory, and the public good; and, to this end, hath armed them with the power of the sword, for the defence and encouragement of them that are good, and for the punishment of evil doers.” ch. 21 § 1. (This article remained unaltered in the 1788 revised edition.) Here we can already see the theological seed of Harlan’s deference to state police power. In the Presbyterian tradition, the civil magistrate had a divine mandate to rule for the public good (though not without limit).

  88. Gordon, supra note 74, at 369.

  89. Patterson v. Kentucky, 97 U.S. 501, 504 (1878) (emphasis added).

  90. See e.g., Lectures, supra note 77.

  91. See generally Stanley D. Rose, Edmund Burke: An Introduction, 7 Cath. U. L. Rev. 61 (1958).

  92. Of course, mention of the common good stretched back to John Winthrop’s 1630 sermon, A Modell of Christian Charity and beyond; the Puritan errand was always characterized thereby, and, by extension, so too was America’s. The “common good” and various synonyms like “the general welfare” litter founding documents (like the Federalist Papers), including the preamble to the federal Constitution.

  93. Gordon, supra note 74, at 369.

  94. Njuguna Ndung’u & Landry Signé, The Fourth Industrial Revolution and digitization will transform Africa into a global powerhouse, Brookings Institution (Jan. 8, 2020), https://www.brookings.edu/research/the-fourth-industrial-revolution-and-digitization-will-transform-africa-into-a-global-powerhouse/; Andrew McAfee, We’re living through a new industrial revolution, Fin. Times (Oct. 16, 2014), https://www.ft.com/content/e6218eaa-0675-3ee2-8d54-3599d7560386; Bernard Marr, The 4th Industrial Revolution Is Here - Are You Ready?, Forbes (Aug. 13, 2020), https://www.forbes.com/sites/bernardmarr/2018/08/13/the-4th-industrial-revolution-is-here-are-you-ready/?sh=26eaf13f628b.

  95. Joseph Story employs similar language throughout his Commentaries on the Constitution (1833)—he mentions the “common good” or some derivation thereof over 50 times in the Commentaries. See e.g., 2 Joseph Story, Commentaries on the Constitution of the United States 429 (1833) (“If, then, every well-organized society has the right to consult the common good of the whole, and if, upon the principles of natural law, this right [of voting] is conceded by the very union of society, it seems difficult to assign any limit to this right which is compatible with the due attainment of the end proposed.”). See also id. at 235 (quoting the preamble to the Massachusetts Constitution).

  96. Haverty v. Bass, 66 Me. 71 (1873) (upholding a statute giving municipal officers power to remove to quarantine houses, without warrant or due process, citizens infected with smallpox). The maxim quoted derives from Cicero’s De Legibus (III. III. VIII). See also Turner v. City of Toledo, 1898 WL 1335, at *5 (Ohio Cir. Ct. 1898) (citing Haverty on this point); Aaron v. Broiles, 64 Tex. 316 (1885) (upholding the removal from city limits of persons infected with contagious disease by municipal authorities so long as reasonable provisions for the safety of removed persons are provided); State v. Hay, 35 S.E. 459, 461-62 (1900) (quoting an exposition of the principle salus populi suprema lex form Herbert Broom’s Legal Maxims (1845) as saying that “[t]here is an implied assent on the part of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy, or even sacrificed, for the public good.”).

  97. Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905).

  98. See also Commonwealth v. Pear, 183 Mass. 248 (1903)

    It is generally held that if a statute purports to be enacted to promote the general welfare of the people, and is not at variance with any provision of the Constitution, the question whether it will be for the good of the community is a legislative, and not a judicial question.

    (citing Mugler v. Kansas, 123 U.S. 623, 662 (1887)).

  99. Mugler, 123 U.S. at 661 (1887). See also Harris v. State Bd. of Optometrical Examiners of Dep’t of Pub. Instruction of the Commonwealth, 287 Pa. 531, 135 A. 237 (1926) (noting the question of reasonableness and proportionality between means and ends). The question of “reasonableness” is fact intensive. Derrick v. Smith stated well that to determine “reasonableness” in this context, the

    importance of public benefit which the legislation seeks to promote is to be balanced against the seriousness of the restriction of private right sought to be imposed. If a statute is directed to a public interest of minor importance and yet imposes serious restrictions on guaranteed rights, the conclusion that it is unreasonable may be required.

    88 N.H. 63, 68, 184 A. 595, 599 (1936). See also Gambone v. Commonwealth, 375 Pa. 547, 550-51, 101 A.2d. 634 (1954).

  100. On “fundamental law,” see generally John D. Eusden, Puritans, Lawyers, and Politics in Early Seventeenth-Century England 44-49 (1958) (noting how judges and barristers like Sir Edward Coke or John Selden employed the term to mean “the customs, common law rules, and statutes which made up the law of the land.”). See also Ralph H. Clover, The Rule of Law in Colonial Massachusetts, 108 U. Penn. L. Rev. 1001, 1006 (1960) (“[T]he medieval idea of law as a promulgation of what was recognized as already binding retained considerable vitality throughout the sixteenth century and well into the seventeenth.”). See also Edward S. Corwin, The ‘Higher Law’ Background of American Constitutional Law, 42 Harv. L. Rev. 365 (1929).

  101. Alexandra Marvar, How New York Separated Immigrant Families in the Smallpox Outbreak of 1901, Smithsonian Magazine (Jan. 10, 2019), https://www.smithsonianmag.com/history/how-new-york-separated-immigrant-families-smallpox-outbreak-1901-180971211/; How The ‘Pox’ Epidemic Changed Vaccination Rules, NPR (Apr. 5, 2011), https://www.npr.org/2011/04/05/135121451/how-the-pox-epidemic-changed-vaccination-rules.

  102. 260 U.S. 174 (1922). See id., at 175-77 (relying on Jacobson and holding that the vaccine certificate requirement for public school children was not an expression of “arbitrary power” but only “that broad discretion required for the protection of public health.”). See also Gonzalez v. Carhart, 550 U.S. 124, 163 (2007) (legislatures are afforded “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”) (citing Jacobson, 197 U.S. at 30-31).

  103. 515 U.S. 646 (1995). See also Viemeister v. White, President of the Board of Education, 88 App. Div. 44 (N.Y. App. Div. 1903) (cited by Jacobson, 197 U.S. 34); Thornburgh v. Amer. Coll. of Obstetricians, 476 U.S. 747 (1986).

  104. 293 U.S. 245, 264 (1934).

  105. In re Abbott, No. 20-50296 (5th Cir., Apr. 20, 2020). See also In re Abbot: Fifth Circuit Upholds Abortion Restrictions During COVID-19 Pandemic, 134 Harv. L. Rev. 1228 (noting that the Fifth Circuit, following Jacobson, conducted a common good constitutionalism style of reasoning). Several other pandemic-era cases have appealed to Jacobson. See e.g. In re Rutledge, 956 F.3d 1018, 1027-28 (8th Cir. 2020); Givens v. Newsom, 459 F. Supp.3d 1302, 1310-12 (E.D. Cal. 2020); Lewis v. Walz, 491 F. Supp. 3d 464, 470 (D.Minn. Sept., 30, 2020).

  106. 141 S. Ct. 63, 70 (2020) (Gorsuch, J. concurring) (“Jacobson hardly supports cutting the Constitution loose during a pandemic”).

  107. 140 S. Ct. 1613 (2020).

  108. 141 S. Ct. at 70 (2020) (Gorsuch, J. concurring).

  109. Klaassen v. Trustees of Indiana University, No. 1:21-CV-238 DRL (N.D. Ind. 2021).

  110. The media coverage was slightly overblown. See e.g., Czech vaccines: European rights court backs mandatory pre-school jabs, BBC (Apr. 8, 2021), https://www.bbc.com/news/world-europe-56669397.

  111. On the influence of the classical tradition on the American colonies generally, see Richard M. Gummere, The American Colonial Mind and the Classical Tradition (1963). See also Herbert Hovenkamp, Law and Morals in Classical Legal Thought, Maurice and Muriel Fulton Lectures (1996); Mortimer Newlin Stead Sellers, Classical Influences on the American Founding Fathers, Univ. Baltimore School of L. Leg. Stud. Research Paper No. 2009-20 (2009); John Underwood Lewis, Blackstone’s Definition of Law and Doctrine of Legal Obligation as a Link Between Early Modern and Contemporary Theories of Law, Irish Jurist 3(2) (1968), pp. 336-51.

  112. William Blackstone, Commentaries on the Law of England, I.I.2.44 (1765) [hereinafter “Commentaries”]; id., at I.I.2.45 (“Municipal law is also ‘a rule of civil conduct.’ This distinguishes municipal law form the natural, or revealed [law]; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith.”). See also id., at I.I.2.42 (“Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”). Harlan, like most jurists of his day, was fond of invoking Blackstone in his famous dissents and lectures. See e.g., Hurtado v. California, 110 U.S. 516, 545 (1884) (Harlan, J., dissenting); Brian L. Frye, Josh Blackmun, & Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law 1987-98, Lecture 21 (Mar. 19, 1898), in 81 Geo Wash. L. Rev. Arguendo 12, 263 (2013). On Blackstone’s influence on American law, see Albert S. Miles et al., Blackstone and His American Legacy, 5 Australia & New Zealand J. L. & Ed. 46-59 (2000); Albert W. Alschuler, Rediscovering Blackstone, 145 U. Penn. L. Rev. 1 (1996). For a comparative analysis of Blackstone and Joseph Story, see Gerald T. Dunne, American Blackstone, 1963 Wash. U. L. Q. 321 (1963).

  113. Commentaries, supra note 112, at I.I.2.54.

  114. Id.

  115. Id.

  116. Id.

  117. Id.

  118. Commentaries, supra note 112, at I.I.2.55.

  119. Id.

  120. Id.

  121. Patrick Button has illustrated this well with the lighthearted example of parking tickets. See Button, Murder, Parking Tickets, and the Natural Law, Ius & Iustitium (Aug. 6, 2020), https://iusetiustitium.com/murder-parking-tickets-and-the-natural-law/.

  122. Brian McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition 321 (2020) [hereinafter Architecture].

  123. Architecture, supra note 122, at 325.

  124. Architecture supra note 122, at 313.

  125. See e.g., Hooker, supra note 85, at 44-47.

  126. Thomas Aquinas, Summa Theologiae, II-I, 96 (1485). 1. Ralph H. Clover, Note, The Rule of Law in Colonial Massachusetts, 108 U. Penn. L. Rev. 1001, 1009-10 (1960) (“[Richard Hooker] argued that all human laws derive from reason in the sense that they are means addressed to an end; consequently the reason may be justifiably employed to alter the law as circumstances change, the better to attain the end desired.”). Likewise, Blackstone directed lawyers and judges to consider the “reason and spirit” of law, especially when the words of a particular statute are dubious, “or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it.” This, interpreting (and either upholding or striking down) laws by the “reason of them,” is equity. Commentaries, supra note 112, at I.I.2.61.

  127. Although Aquinas explains that all human law must be derived from the general precepts of

    natural law, his jurisprudence is firmly rooted in the reality of actual living communities. Deduction and determination of human law must always be done in light of the particularities of the community to which it will apply.

    Architecture, supra note 122, at 311. Hence why judge Lemuel Shaw wrote in Commonwealth v. Alger, 61 Mass. 53, 86 (1851) that “It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to exercise.” C.f. Pennsylvania Coal Co v. Mahon, 260 U.S. 393 (1922) (wherein Justice Holmes famously dismantled Shaw’s distinction between regulation of property use predicated on the police power and a taking by introducing the idea of a “regulatory taking.”). See generally D. Benjamin Barros, The Police Power and the Takings Clause, 58 U. Miami L. Rev. 471 (2004).

  128. Architecture, supra note 122, at 317.

  129. Man’s inherent sociableness was taken for granted in the classical legal tradition. The insight spanned from traditional interpretation of Genesis 2:15 to Aristotle, Politics, 1.1253a, and beyond. In the early modern period, the principle was most thoroughly developed by Samuel Pufendorf in his De jure naturae et gentium (1673) and De officio hominis et civis (1672). As R. H. Helmholz has noted, Pufendorf was cited frequently throughout the founding and new republic era of American jurisprudence. Helmholz, The Law of Nature and the Early History of Unenumerated Rights in the United States, 9 J. Cont. Law 401 (2007). As early as 1715, Pufendorf was cited (repeatedly) by New England clergyman, John Wise, in his A Vindication of the Government of New England Churches (1715/1717) (Demonstration II). On the influence of Christianity on the common law tradition, see Stuart Banner, When Christianity Was Part of the Common Law, 16 L. & Hist. Rev. 27 (1998); Augusto Zimmermann, Christianity and the Common Law: Rediscovering the Christian Roots of the English Legal System, 16 U. Notre Dame Austl. L. Rev. 145 (2014). C.f. A. H. Wintersteen, Christianity and the Common Law, Am. L. Reg. 273 (1890). See also Updegraph v. Commonwealth, 11 Serg. Rawle 394, 399 (Pa. 1824) (“Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania.”); Justice David J. Brewer, The United States A Christian Nation (1905) (Brewer, of course, was on the bench with Harlan, with whom he often joined in dissent, and authored the majority opinion in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) which featured multiple affirmations of, per Brewer, America’s Christian character). See also Van Orden v. Perry, 545 U.S. 677 (2005) (Stevens, J. dissenting) (see esp. Part III).

  130. Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (quoting Railroad Co. v. Husen, 95 U. S. 465 (1877)).

  131. Otto von Gierke, Political Theories of the Middle Age 9-10 (Frederic William trans., Maitland) (1958).

  132. Richard A. Brisbin, Jr., John Marshall and the Nature of Law in the Early Republic, 98Virginia Magazine of History & Biography, no. 1, 1990, at 57-80; Robert Lowry Clinton, Classical Legal Naturalism and the Politics of John Marshall’s Constitutional Jurisprudence, 33 J. Marshall L. Rev. 935 (2000); R. Ben Brown, Judging in the Days of the Early Republic: A Critique of Judge Richard Arnold’s Use of History in Anastasoff v. United States, 3 J. App. Prac. & Process 355 (2001); Richard H. Helmholz, Use of the Civil Law in Post-Revolutionary

    American Jurisprudence, 66 Tulane L. Rev. 1649 (1992); Thomas H. Lee, Civil Law’s Influence on American Constitutionalism (unpublished article), available at http://www.law.nyu.edu/sites/default/files/upload_documents/Lee Civil Law Tradition NYU Final Draft.pdf.

  133. It is notable that Blackstone treats crimes against public health and those against “public police and economy,” or the “good order and economy of the kingdom,” in close succession. 4 Joseph Story, Commentaries on the Constitution of the United States 162-64 (1833). See also Thomas Cooley, A Treatise on Constitutional Limitations 704 (1874) (citing Blackstone). Harlan cited Cooley’s Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the American Union (1871) in Patterson v. Kentucky, 97 U.S. 501, 504-505 (1878) on the question of police power: “‘In the American constitutional system,’ says Mr. Cooley, ‘the power to establish the ordinary regulations of police has been left with the individual states, and cannot be assumed by the national government.’” Lawrence Solum has called Cooley’s Limitations “the most influential treatise of constitutional law in the second half of the nineteenth century.” Cooley’s Constitutional Limitations and Constitutional Originalism, 18 G town J. L. & Pub. Pol’y 49 (2020). As Cooley noted, the state police power,

    [E]mbraces a whole system of internal regulation by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.

    Cooley, Constitutional Limitations, 1223 (8th ed. 1927).

  134. 2 Joseph Story, Commentaries on the Constitution of the United States 40 (1833).

  135. 97 U.S. 501, 504 (1878) (noting that the purpose of the police power is the “protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights.”).

  136. See also Douglas v. Kentucky, 168 U.S. 488, 497 (1897) (quoting Stone v. Mississippi, 101 U.S. 815 (1879)) (arguing that lotteries “disturb the checks and balances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of speculators and gamblers, living on the expectation of what. . . might be ‘awarded’ to them from the accumulation of others.”). On the historical development of the police power, see generally Collins Denny, Jr., The Growth and Development of the Police Power of the State, 20 Mich. L. Rev. 173 (1921); Santiago Legarre, The Historical Background of the Police Power, 9 J. Const. L. 745 (2007) (noting that, fittingly, in Brown v. Maryland (1827), Harlan’s namesake coined the term “police power”).

  137. Harlan’s most memorable and direct engagement with public morality is found in his United States v. Bitty, 208 U.S. 393 (1908), opinion. Harlan also upheld Georgia’s prosecution of railroads that ran freight on the Sabbath in Hennington v. Georgia, 163 U.S. 299 (1896), wherein, over and against commerce clause objections, Harlan analogized to quarantine laws as a just intimation of state police power. See Hennington, 163 U.S. at 310.

  138. Mugler v. Kansas, 123 U.S. 623, 660-61 (1887).

  139. Recalling the New England Calvinist tradition that influenced Harlan, Jonathan Todd preached in 1749 that

    Almost any, even a tyrannous Government is better than none; because, while the Government is never so tyrannical, there are but a few exercising that Tyranny: The Multitude are in the mean Time under Restraint. Whereas, if there was no Government at all, every One would be let loose to be a Tyrant.

    Jonathan Todd, Civil Rulers the Ministers of God 40-41 (1749).

  140. Mugler, 123 U.S. at 663 (1887).

  141. Douglas, 168 U.S at 505 (internal citations omitted).

  142. See Champion v. Ames, 188 U.S. 321, 356 (1903).

  143. Mugler, 123 U.S. at 662-63.

  144. See Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).

  145. Jacobson, 197 U.S. at 34 (quoting Viemeister v. White, President of the Board of Education, 88 App. Div. 44 (N.Y. App. Div. 1903).

  146. C.f. Kraus v. City of Cleveland, 116 N.E.2d 779, 807 (Ohio Com. Pl. 1953), aff’d, 121 N.E.2d 322 (Ohio Ct. App. 1954), aff’d, 163 Ohio St. 559, 127 N.E.2d 609 (1955) (“It might be argued that because vaccination was designed to protect against infections and dangerous diseases the courts subordinated the individual right to religious freedom to the common good. But we have shown earlier herein that, so far as Ohio is concerned, the right to enact a health measure is not dependent upon the presence or prevalence of an infections, communicable or dangerous disease. Public necessity as determined by the legislative body is the test.”).

  147. Here, Harlan was perpetuating policies that stretch back to the colonial period. See Elizabeth C. Tandy, Local Quarantine and Inoculation for Smallpox in the American Colonies (1620-1775), 13 Amer. J. Pub. Health, no. 3 Mar. 1923, at 203-07. On the questionable constitutionality of federal quarantine post NFIB v. Sebelius (2012), see Arjun K. Jaikumar, Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine after NFIB v. Sebelius, 114 Columbia L. Rev. 678 (2014). See also Benjamin A. Barsky, Addressing the Constitutionality of Federal Quarantine Rules, Regulatory Rev. (Apr. 16, 2019), https://www.theregreview.org/2019/04/16/barsky-constitutionality-federal-quarantine-rules/.

  148. Mugler, 123 U.S. at 662-63.

  149. See State v. Hay, 35 S.E. 459 (1900) (recalling the common knowledge at the time of the dangers of smallpox). See also Commonwealth v. Pear, 183 Mass. 242, 245 (“[i]t is a fact of common knowledge that smallpox is a terrible disease whose ravages have sometimes swept away thousands of human beings in a few weeks. It is equally well known that a large majority of the medical profession and of people generally consider vaccination, repeated at intervals of a few years, a preventive of the disease.”).

  150. D. L. Heymann et al., Successful Smallpox Eradication: What Can We Learn to Control COVID-19?, 27 J. Travel Med. 1 (2020). See also Michael R. Albert et al., The Last Smallpox Epidemic in Boston and the Vaccination Controversy, 1901-1903, 344 New Eng. J. Med. 375 (2001).

  151. Katherine S. Xue, Coexisting with the Coronavirus, New Yorker (July 21, 2021), https://www.newyorker.com/science/annals-of-medicine/coexisting-with-the-coronavirus.

  152. Jacobson v. Massachusetts, 197 U.S. 11, 15 (Argument for Plaintiff in Error).

  153. Id. at 16 (Citing 4 Blackstone 162).

  154. See generally Onder Bakircioglu, The Right to Self-Defence in National and International Law: The Role of the Imminence Requirement, 19 Ind. Int’l & Comp. L. Rev. 1 (2009).

  155. Indeed, Americans do not even trust each other. Kevin Vallier, Why Are Americans So Distrustful of Each Other? Wall St. J. (Dec. 17, 2020), https://www.wsj.com/articles/why-are-americans-so-distrustful-of-each-other-11608217988.

  156. Disinformation is already circulating about the vaccine. Ashley Nerbovig, As COVID-19 vaccine heads out to distribution sites, disinformation already circulating: What to watch for, Detroit Free Press (Dec. 11, 2020), https://www.freep.com/story/news/health/2020/12/11/covid-vaccine-disinformation-misinformation/3879269001/; Maggie Miller, Democrats urge Biden to address ‘infodemic’ of COVID-19 disinformation, misinformation, The Hill (Dec. 10, 2020), https://thehill.com/policy/cybersecurity/529757-democrats-urge-biden-to-address-infodemic-of-covid-19-disinformation-and; Brad Brooks, Like the flu? Trump’s coronavirus messaging confuses public, pandemic researchers say, Reuters (Mar. 13, 2020), https://www.reuters.com/article/us-health-coronavirus-mixed-messages/like-the-flu-trumps-coronavirus-messaging-confuses-public-pandemic-researchers-say-idUSKBN2102GY.

  157. See generally Alessandro Mulieri, Machiavelli, Aristotle and the Scholastics. The origins of human society and the status of prudence, 30 Intellectual Hist. Rev. 4 (2020).

  158. Robert Bireley, The Counter-Reformation Prince: Anti-Machiavellianism or Catholic Statecraft in Early Modern Europe (1990). Albeit, as Vermeule notes elsewhere, there is significant agreement between Botero and Machiavelli on the question of disruption and stability vis a vis tradition. See Adrian Vermeule, All Human Conflict is Ultimately Theological, Church Life Journal (July 26, 2019), https://churchlifejournal.nd.edu/articles/all-human-conflict-is-ultimately-theological/#_ftn7. In the end, both Machiavelli and Botero are features of the (ecumenical) renaissance of political realism in early modern Europe. See also George L. Mosse, The Holy Pretence: A Study in Christianity and Reason of State from William Perkins to John Winthrop (1957). Machiavelli instigated a renewed enthusiasm for the doctrine of “reason of state” for the Christian monarch, apart from the deceit and amoral cunning of The Prince (1532). (Of course, the lion’s share of the pushback to Machiavelli was his purported atheism.) See Mosse, Holy Pretence, at 16 (“Machiavelli put both the maintenance of old laws and customs and the maintenance of the state upon a utilitarian, reason of state basis, not because these were in themselves good, but because they were a matter of successful politics.”); Id. at 36 (“Botero brings morality and politics into a positive relationship, but one which superimposes God upon a ‘policy’ and reason of state which do not thereby lose their ‘Machiavellian’ character. In contrast to Machiavelli himself, religion for Botero means the strengthening of the state and not the weakening of men.”); Id. at 44 (“Botero made reason of state palatable to the princes of the Catholic Reformation.”).

  159. Beyond Originalism, supra note 55 (emphasis in original).

  160. Giovanni Botero, The Reason of State 4 (2017, Robert Bireley, ed.) (1589) [hereinafter Reason of State].

  161. George L. Mosse, The Holy Pretence: A Study in Christianity and Reason of State from William Perkins to John Winthrop 9 (1968) (“[r]eason of state, as a historical phenomenon, is the maxim of political action which tells the statesman what he must do in order to maintain the health and the power of the state. As such it orients the statesmanship towards the realities of political life, and judges the ruler by his success in the adroit handling of political power.”); Id. at 41 (“[p]rudence and virtue must be joined; one cannot exist without the other. In this combination prudence means the taking of all the circumstances into consideration, the judging of all factors of a situation and the making of the ‘chief good as the cope and end of all his action.’”) (quoting Thomas Fitzherbert, The First Part of a Treatise Concerning Policy and Religion (1615)); Id. at 42 ("no one policy will serve for every occasion . . . ").

  162. Neils Hemmingsen, On the Law of Nature: A Demonstrative Method 125-126 (trans E.J. Hutchinson, 2018) (1562) (emphasis added).

  163. Aquinas, supra note 126, at II-II, 47.2 ad 1; id. at 47.4 (“right reason with respect to action”). Botero designates prudence (along with valor) one of the two pillars “on which every government ought to rest.” Reason of State, supra note 60 at 34. See also id. at 51 (“Valor consists in prudence and vigor of spirit, which two things united in one man produce marvelous deeds.”). Prudence and valor “give birth to reputation,” the sine qua non of a stable regime. Id. at 52.

  164. Aquinas, supra note 126, at, II-II, 47.1 (quoting Isidore).

  165. Neils Hemmingsen, On the Law of Nature: A Demonstrative Method 106 (trans E.J. Hutchinson, 2018) (1562) (“That this prudence is required by the law of nature is clear from the fact that nothing can be done correctly without it.”).

  166. Thomas Hobbs, Virtue’s Splendor: Wisdom, Prudence, and the Human Good 92 (2001); see also Daniel Westberg, Right Practical Reason: Aristotle, Action, and Prudence in Aquinas (1994).

  167. Aquinas, supra note 126, at II-II, 47.6 (“The end of moral virtues is human good . . . Wherefore the ends of moral virtue must of necessity pre-exist in the reason . . . Natural reason known by the name of synderesis appoints the end to moral virtues, as stated above: but prudence does not do this for the reason given above.”).

  168. Id. at II-II, 47.6 (“The end concerns the moral virtues, not as though they appointed the end, but because they tend to the end which is appointed by natural reason. On this they are helped by prudence, which prepares the way for them, by disposing the means. Hence it follows that prudence is more excellent than the moral virtues, and moves them: yet synderesis moves prudence, just as the understanding of principles moves science.”).

  169. Id. at II-II, 47. 11 (Aquinas locates this principle in 1 Corinthians 10:33, “Not seeking that which is profitable to myself, but to many, that they may be saved.”).

  170. Id. at II-II, 47.10.

  171. See Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law 203-20 (2005).

  172. Johannes Althusius, Politica 17 (Frederick S. Carney, ed. 1995) (1603). See also John Witte, Jr., The Universal Rule of Natural Law and Written Constitutions in the Thought of Johannes Althusius, in Janne Nijman & Tony Carty, eds., Morality and Responsibility of Rulers: Chinese and European Early Modern Origins of a Rule of Law for World Order (2018).

  173. Reason of State, supra note 160, at 43 (“Do not make sudden changes, because such actions have something of the violent, and violence rarely succeeds and never produces a lasting effect.”). See also id. at 50 (“Nothing is more hateful in governments than to change things which have acquired esteem through their antiquity . . . The novelty brought forth hatred, and the change of deep-seated customs was not possible without resentment.”).

  174. Appeal of Locke, 72 Pa. 491, 496-97 (1873).

  175. As it stands, only a little over half of Americans trust the Center for Disease Control and even less trust the surgeon general and state health departments. Selena Simmons-Duffin, Poll Finds Public Health Has A Trust Problem, NPR (May 13, 2021), https://www.npr.org/2021/05/13/996331692/poll-finds-public-health-has-a-trust-problem; Jacob Sullum, Why Americans can’t trust the CDC’s advice on COVID-19, Chicago Sun-Times (May 17, 2021), https://chicago.suntimes.com/columnists/2021/5/17/22440432/cdc-centers-for-disease-control-covid-19-recommendations-rules-jacob-sullum.

  176. Reason of State, supra note 160, at 53.

  177. Bill Melugin & Shelly Insheiwat, FOX 11 obtains exclusive photos of Gov. Newsom at French restaurant allegedly not following COVID-19 protocols, Fox 11 Los Angeles (Nov. 17, 2020), https://www.foxla.com/news/fox-11-obtains-exclusive-photos-of-gov-newsom-at-french-restaurant-allegedly-not-following-covid-19-protocols. See also Heather Knight, S.F. Mayor London Breed had her own French Laundry party—the night after Gavin Newsom’s, San Francisco Chronicle (Dec. 1, 2020), https://www.sfchronicle.com/bayarea/heatherknight/article/S-F-Mayor-London-Breed-had-her-own-French-15767506.php.

  178. Victoria Colliver, Locked-down California runs out of reasons for surprising surge, Politico (Dec. 24, 2020), https://www.politico.com/news/2020/12/23/california-covid-surge-450315.

  179. Katrin Schmelz & Samuel Bowles, Imposing vaccine mandates may be counterproductive, our research suggests, Wash. Post (June 7, 2021), https://www.washingtonpost.com/politics/2021/06/07/imposing-vaccine-mandates-may-be-counterproductive-our-research-suggests/ (“We found that the fall in support for enforced vaccination was disproportionately high among those whose public trust had also declined.”). See also Ishan Tharoor, The growing clamor for — and against — vaccine mandates, Wash. Post. (Aug. 2, 2021), https://www.washingtonpost.com/world/2021/08/02/clamor-against-vaccine-grows/.

  180. Lawrence O. Gostin et al., Mandating COVID-19 Vaccines, 325 J. Am. Med. Ass’n 532 (2021).

  181. 140 S. Ct. 1613 (2020).

  182. 140 S. Ct. 2603 (2020).

  183. Id. at 2605 (Alito, J., dissenting). See also Cassell v. Snyders, 458 F. Supp. 3d 981, 993-94 (May 3, 2020) (“courts must remain vigilant, mindful that government claims of emergency have served in the past as excuses to curtail constitutional freedoms.”).

  184. See Viemeister v. White, President of the Board of Education, 88 N.Y. App. Div. 44, 238 (1903) (“A statute entitled a health law must be a health law in fact as well as in name, and must not attempt in the name of the police power to effect a purpose having no adequate connection with the common good.”). Id. at 239 (“When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.”).

  185. Jacobson v. Massachusetts, 197 U.S. 11, 35 (1905).

  186. Commonwealth v. Pear, 183 Mass. 242, 247 (declaring that evidence must always be considered in light of the “facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute.”).

  187. See e.g., Viemeister, 88 N.Y. App. Div. at 240-41 (“A common belief, like common knowledge, does not require evidence to establish its existence, by may be acted upon without proof by the Legislature and the courts . . . . Common belief, in order to become such common knowledge as to be judicially noticed by us, must be common in this state, although the in a matter pertaining to science it may be strengthened somewhat by the general acceptance of mankind.”.

  188. Viemeister, 88 N.Y. App. Div. at 242 (Hence, the court could not decide whether smallpox vaccinations were effective in fact, it could take judicial notice of “the fact that this is the common belief of the people of the state, and with this fact as a foundation we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.”). See also Cude v. State, 237 Ark. 927, 932 (1964) (upholding vaccination requirements for children) (“It is a matter of common knowledge that prior to the development of protection against smallpox by vaccination, the disease, on occasion, ran rampant… According to the great weight of authority, it is within the police power of the State to require that school children be vaccinated against smallpox…”); Wright v. DeWitt School Dist. No. 1 of Arkansas County, 238 Ark. 906 (1965); State ex rel. Milhoof v. Board of Education of Village of Barberton, 76 Ohio 297 (1907).

  189. Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787, 817 (2015) (internal citation omitted).

  190. Architecture, supra note 122, at 315.

  191. Supreme Court bars New York’s COVID limits on religious house of worship attendance, CBS News (Nov. 26, 2020), https://www.cbsnews.com/news/supreme-court-new-york-covid-restrictions-religious-house-of-worship/. See also Soo Kim, Orthodox Jews vs Bill De Blasio and Andrew Cuomo—Why New York is Battling Anti-lockdown Protests, Newsweek (Oct. 12, 2020), https://www.newsweek.com/coronavirus-new-york-cuomo-de-blasio-anti-lockdown-protests-orthodox-jews-1538285. C.f. Ginia Bellafante, When Covid Flared Again in Orthodox Jewish New York, N.Y. Times (Oct. 5, 2020), https://www.nytimes.com/2020/10/05/nyregion/orthodox-jewish-nyc-coronavirus.html. The Supreme Court has also recently struck down California’s restrictions (regarding in-home worship services) on religious liberty grounds, much to the elation of religious conservatives and consternation of liberal commentators. See Zeeshan Aleem, Supreme Court rules against California’s Covid-19 restrictions on grounds of religious liberty, Vox (Apr. 10 2021), https://www.vox.com/2021/4/10/22377008/supreme-court-california-religion-covid-restrictions. See also Dahlia Lithwicj and Mark Joseph Stern, SCOTUS Won’t Explain Why It Keeps Blocking COVID Restrictions, Slate (Mar. 1, 2021), https://slate.com/news-and-politics/2021/03/supreme-court-covid-religious-liberty-mystery.html. The distrust of religious conservatives of government restrictions transcends national boundaries, as the recent case of the Canadian pastor, James Coates, demonstrates. See Kate Shellnutt, Canadian Pastor Jailed Over COVID-19 Violations Released, Christianity Today (Feb. 19, 2021), https://www.christianitytoday.com/news/2021/february/canada-pastor-jail-arrest-gracelife-church-covid-order.html.

  192. Many of the same considerations face large corporations. Andrew Ross Sorkin, Should Companies Require Employees to Take the Vaccine?, N. Y. Times (Dec. 12, 2020), https://www.nytimes.com/2020/12/12/business/dealbook/should-companies-require-employees-to-take-the-vaccine.html.

  193. Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Public Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/.