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Wednesday, June 17, 2020

The 1905 case that governs the law - "states have broad “police powers”, i.e., the primary governmental authority to enact “reasonable regulations” to “protect the public health and public safety” all of its citizens."

In mid-March this year, shortly before St. Patrick’s Day, Gov. Larry Hogan ordered that the state’s restaurants be closed to stop COVID-19 from spreading...


...I told the reporter to read the 1905 U.S. Supreme Court case of Jacobson v. Massachusetts. Indeed, the Maryland Attorney General had already raised Jacobson in support of the Governor’s COVID-19 responses.  In the end, the restaurants closed, did not defy the governor and brought no suits.  It is very rare that a 115-year-old case still holds such overwhelming currency with over 1,500 references in law review articles and half that number in judicial opinions.
Jacobson concerned a regulation from the Cambridge Board of Health that every resident be vaccinated against smallpox or pay a fine. Smallpox at the time was highly contagious and could be spread by those who were asymptomatic. Thirty percent of those who contracted it died. And, even many of those who survived were left with unsightly body and facial scars...
...When the case reached the U.S. Supreme Court, Justice John Marshall Harlan, writing for a 7-2 Court majority, ruled that, under the Constitution, states have broad “police powers”, i.e., the primary governmental authority to enact “reasonable regulations” to “protect the public health and public safety” all of its citizens.
Justice Harlan said that “the 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.”  (Emphasis added.)..

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