In two recent cases—Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo and South Bay United Pentecostal Church v. Gavin Newsom—the U.S. Supreme Court struck down COVID-19 emergency restrictions on religious gatherings. On the surface, the Justices argued with each other over factual questions, such as whether religious institutions were actually being treated differently than secular ones, whether evidence demonstrated that the restrictions were necessary, and whether changes in the pandemic, at least for the moment, made the cases moot. But underneath these arguments, another fight has been ensuing over the current viability of the Court’s 1905 decision in Jacobson v. Massachusetts. Ultimately, this fight is over the nature of rights and liberty under the American Constitution. Who wins this fight will define America for perhaps a century or longer, determining what Americans owe their country and each other.
In 1902, smallpox was spreading in America. There was a vaccine, but industrial pharmaceutical production was in its infancy, and anti-vaccine sentiment was widespread. When vaccination rates fell, outbreaks emerged, and health authorities responded by rolling out vaccination campaigns.
