I just finished reading Pox: An American History, which I blogged about earlier. The later chapters of the book focus on the legal battles over compulsory sterilization. What’s fascinating is how similar these debates are to contemporary debates about individual liberty, particularly the notions I discuss in the Constitutionality of Social Cost.
The anti-vaccinating crusaders latched onto a Mill liberty style argument. A person, who has not contracted the disease, and poses no threat to others, should not be compelled to have his arm scrapped, and a (very dangerous at the time–many people died) vaccine inserted into his body. Of course, that person could contract the disease at any time, and spread it to others. Even the most strident anti-vaccination crusders were not opposed to the so-called quarantine pest houses.
The pro-vaccination crowd, the Progressives of the era, exemplified by Justice Holmes, wanted none of this pap about individual liberty. They lived in a large, urban world where the state had to have a plenary police power to protect people against a potential lethal smallpox outbreak, even if that involved vaccinating someone, who had exhibited no symptoms, by force against his will. Even if there had been no cases of small pox in the jurisdiction!
Now, let’s look at my argument about the Second Amendment.
My view is that someone who has not shown any propensity for violence, and has not taken any steps that could possibly indicate he would use a firearm for ill will, should not be preemptively disarmed without a strong showing by the state that this deprivation of liberty is appropriate. In contrast, a person who has shown a propensity for violence, and can harm others, can be deprived of liberty, and he bears the burden of reclaiming the liberty.
In contrast, the progressives of today, who (if you buy David Bernstein’s historiography) are the inheritors of the Holmes’s Progressivism, want none of this individual liberty pap. We live in a dangerous world, where someone with a gun, could in an instant use it to harm someone else, even if he has shown no likelihood of harming others. The state should have plenary power to preemptively disarm someone to prevent these harm, even if by force.
The symmetry, which I assure you was unintentional, is fascinating.
I would like to research this further. The legacy of compulsory vaccination led directly to compulsory sterilization, and many other progressive goals. I love the title “Arresting the Police Power.” Just not sure how to use it yet.