The Smallpox Outbreak, The Progressive Era, Holmes, and Liberty

May 26th, 2011

On the recommendation of frequent commenter Steve Rappoport, I started reading Pox: An American History.

It tells the story about the Smallpox outbreak in the early 20th century, and the resulting forced vaccinations. Set against the backdrop of the Progressive era, the book focuses quite a bit on the liberty interests involved. Many at the time objected to the mandated vaccinations for a host of reasons. Some felt the vaccines weren’t safe (they had a high fatality rate). Others did not want the state foisting care on them that they did not want (can you imagine?)

This passage, in particular, really sticks out, because it discusses Justice Holmes, the author of the Lochner dissent. Holmes clearly recognized that the liberty interests in personal autonomy (interests he didn’t care much about) were no different from liberty interests in free speech (interests he zealously protected). These are the types of things people forget today.

America’s turn-of-the-century war against smallpox sparked one of the most importnat civil liberties struggles of the twentieth century. To readers versed in the scholarly literature about American civil liberties, this claim may sound curious (or even spurious). According to the conventional text-book narrative, the modern era of civil liberties properly begins with the famous free speech cases of the post-World War I era, when the U.S. Supreme Court established new First Amendment protections for political dissent. But contemporaries of the period, including no less a giant of legal realm than Justice Oliver Wendell Holmes, Jr. , of the U.S. Supreme Court, recognized that the celebrated free speech battles reprised constitutional questions that the vaccination struggle had raised for Americans two decades earlier. As Justice Holmes wrote in a 1918 letter to Judge Learned Hand, “Free speech stands no different from freedom from vaccination.”

IN a burst of litigation arising from the smallpox epidemics, the critics of compulsion had carried the vaccination question all the way to the U.S. Supreme Court in 1905 (Jacobson v. Massachusetts). They raised a broad set of questions about the nature of institutional power and the bounds of personal liberty in a modern urban industrial nation. Their demands went far beyond the right to speak out against the government. The critics of compulsory vaccination insisted that the liberty protected by the Constitution also encompassed the right of a free people to take care of their own bodies and children according to their own medical beliefs and consciences. It was a bold but deeply problematic claim. And it brought the opponents of compulsory vaccination into direct conflict with the agents of an emerging interventionist state, whose progressive purpose was to use the best scientific knowledge available to regulate the economy and the population in the interests of the social welfare.

This book is a nice complement to David Bernstein’s book, Rehabilitating Lochner, which provides a nice overview of how Progressives viewed civil liberties (not well).

The full letters from Holmes to Hand is excerpted in 27 Stanford L. Rev 719 (1975). Here is the full passage:

Beverly Farms, Mass.
June 24, 1918

Dear Hand
Rarely does a letter hit me so exactly where I live as yours, and unless you are spoiling for a fight I agree with it throughout. My only qualification, *757 if any, would be that free speech stands no differently than freedom from vaccination. The occasions would be rarer when you cared enough to stop it but if for any reason you did care enough you wouldn’t care a damn for the suggestion that you were acting on a provisional hypothesis and might be wrong. That is the condition of every act. You tempt me to repeat an apologue that I got off to my wife in front of the statue of Garrison on Commonwealth Avenue, Boston, many years ago. I said–If I were an official person I should say nothing shall induce me to do honor to a man who broke the fundamental condition of social life by bidding the very structure of society perish rather than he not have his way–Expressed in terms of morals, to be sure, but still, his way. If I were a son of Garrison I should reply–Fool, not to see that every great reform has seemed to threaten the structure of society,–but that society has not perished, because man is a social animal, and with every turn falls into a new pattern like the Kaleidoscope. If I were a philosopher I should say–Fools both, not to see that you are the two blades (conservative and radical) of the shears that cut out the future. But if I were the ironical man in the back of the philosopher’s head I should conclude–Greatest fool of all, Thou–not to see that man’s destiny is to fight. Therefore take thy place on the one side or the other, if with the added grace of knowing that the Enemy is as good a man as thou, so much the better, but kill him if thou Canst. All of which seems in accord with you. If I may repeat another chestnut of ancient date and printed in later years–When I say a thing is true I mean that I can’t help believing it–and nothing more. But as I observe that the Cosmos is not always limited by my Cant Helps I don’t bother about absolute truth or even inquire whether there is such a thing, but define the Truth as the system of my limitations. I may add that as other men are subject to a certain number, not all, of my Cant Helps, intercourse is possible. When I was young I used to define the truth as the majority vote of that nation that can lick all others. So we may define the present war as an inquiry concerning truth. Of course you won’t suspect me of thinking with levity on that subject because of my levitical speech. I enjoyed our meeting as much as you possibly could have and should have tried to prolong it to Boston but that I feared my wife would worry.

Sincerely Yours
O.W. Holmes