The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. "It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul." ...
If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant.
-- Civil Rights Cases (Harlan, J., dissenting)
Plessy is often deemed Justice Harlan's most historic and proudest dissenting opinion, but one might argue his earlier solo dissent in the Civil Rights Cases was if anything more of a tour de force. As noted, it also is the one that did not become law -- in fact, the majority was repeatedly cited by the Rehnquist Court to strike down various congressional attempts to fulfill its @5 authority to give full meaning to the terms of the Fourteenth Amendment. A somewhat limited view of "clothed in the public interest" apparently remains good law.
Anyway, I ended my review with a citation of Jacobson v. Massachusetts (1905), which is interesting in particular for the way Justice Harlan spells out certain concepts. The law at issue is relatively narrow: a locality can determine that (re)vaccination is required for public health/safety (a board of health finding was made here that smallpox outbreaks met the test), all not consenting (excepting children) liable to be fined five dollars.* A Christian Scientist** had moral opposition to such a requirement, generally appealing to the spirit of the Constitution (in particular, the Preamble) in so doing. This was rejected:
Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom.
This is of debatable concern, however, since the Due Process Clause alone is pretty open-ended. Though the stereotype that Harlan's Court was liberal in its striking down of legislation is just that, even here two justices found the law problematic (without opinion). And, the clause still provided some healthy security. Thus, the ruling addressed the general issue of state police power:
It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.
This provides a broad power while reminding that even state orientated activity has federal constitutional limits -- simple appeals to the Tenth Amendment will not work. But, simple appeals to "blessings of liberty" have only limited success, though the matter (reaffirmed by citing this case in rulings like the Casey abortion opinion) is clearly relevant:
There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,- especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Again, putting aside that "beyond all question, a plain, 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," the legislature should have broad power to balance the evidence respecting public safety and so forth. In such cases, foreign experience is of some relevance ("experience of this and other countries"). This would also be the case if a "minority" aspect of the community disagrees, since on such matters, a majority generally rules in our republican system:
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.
Some discretion is justified, however, if vaccination would cause particular harm on the individual, especially if the law could reasonably interpreted to avoid it:
We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. 'All laws,' this court has said, 'should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character.
A comparable situation arose some years later when some rulings allowed (or some dissenting judges would so allow) a "health exception" to bans on the sale and mailing of contraceptives. Finally, there was no equal protection violation in excepting children:
But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.
Quite a useful collection of general themes.
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* The basic logic of the law could be problematic if taken to its arguably logical conclusion, see here, or in eugenic efforts like Buck v. Bell. One might add that such Holmesian efforts suggest why Harlan might be compared favorably with the sometimes more cold-minded Union veteran. Some other constitutional rights do sometimes clearly arise in such cases (dissenting opinions), of course.
** The matter is not expressly noted in the ruling, but was mentioned in the book's brief reference of the ruling. The lower court also referenced the Reynolds opinion, involving a free exercise claim, but Harlan only spoke of the Jacobson's "personal opinion."