In two recent cases—Roman Catholic Diocese of Brooklyn c. Andrew M. Cuomo and South Bay United Pentecostal Church c. Gavin Newsom– The United States Supreme Court has overturned emergency COVID-19 restrictions on religious gatherings. On the surface, judges argued over factual issues, such as whether religious institutions were really being treated any differently from secularists, whether the evidence showed the restrictions were necessary, and whether changes in the pandemic, at least for now, have made the cases moot. But under these arguments, another fight ensued over the current viability of the 1905 court ruling in Jacobson v. Massachusetts. Ultimately, this fight is about the nature of rights and freedom under the US Constitution. Who wins this fight will define America for perhaps a century or more, 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 rife. When vaccination rates fell, epidemics appeared and health authorities responded by launching vaccination campaigns. In Massachusetts, the Cambridge Board of Health, in the face of the outbreak, has ordered all residents to be vaccinated. Henning Jacobson, a local minister, refused and was fined $ 5. Supported by anti-vax advocates, he took his case to the Supreme Court.

At that time, randomly made vaccines were killing people, so Jacobson’s reluctance was not beyond reason. Yet he lost, and to no one’s surprise. After setting out the evidence that smallpox vaccination was generally considered safe and effective, and noting that Jacobson had provided no evidence that vaccination could be particularly dangerous for him, the court explained why he could not simply demand that we leave him alone. He did indeed have a constitutional right to liberty, but if it was a conflict between his individual liberty and the well-being of the community, well – as the old maxim has said in other cases –salus populi supreme lex: the health of the people is the supreme law.

For the Supreme Court of the day, this principle was not simply an old relic of the common law; it was rather “a fundamental principle of the social pact according to which all the people make an alliance with each citizen and each citizen with all the people”. The Court concluded “that everything will be governed by certain laws for the” common good “and that government is instituted” for the common good, for the protection, security, prosperity and happiness of the people, and not for profit. , the honor or the private interests of a man, a family or a class of men. ‘ Americans enjoy all the benefits of civil society – cooperation, good government, clean water, protection of public health, democracy, and even freedom itself – accepting, in turn, that there may be times. where individual interests must give way to the needs of society.

The reasoning of the Court was not new. It came back to a document that all school children once knew: the Mayflower Compact of 1620, which reflected the ideas of political philosophers John Locke and Thomas Hobbes. The Court also drew on more than a century of legal thinking that guided government regulatory action throughout the 1800s. Salus populi‘s legal brother was a maxim called sic utere tuo ut alienum non laedas– use their own property in such a way as not to harm the property of others. You could build a jetty into the river from the bank you owned, but not far enough into the river to interfere with navigation. You can open a business by turning fat into tallow, but if you stink too much, your neighbors might shut you down. As salus populi, this maxim has drawn a line of public good around the rights of individuals to pursue their own interests.

This restriction was not oppression, but a central facet of the social pact on which American governmental authority was based. And it was absolutely necessary on a practical level. As the Jacobson The Court said it:

The freedom guaranteed by the Constitution of the United States to all persons under its jurisdiction does not imply an absolute right of each person to be, at all times and under all circumstances, entirely free from all coercion. There are multiple constraints to which each person is necessarily subject for the common good. On no other basis could organized society exist with the safety of its members.

For over a hundred years, through polio, measles, HIV and Ebola.Jacobson has sailed the legal seas of public health as an accepted flagship case important both for its specific legal standards and its vision of the social contract in an emergency.

Jacobson the importance in modern law does not flow from its “test” in a First Amendment or due process case or even the vitality of its general posture of deference to public health authorities in an emergency. The important question is his vision of coexistence and cooperation in a democratic community. Today, however, Jacobsonthe vision of is in danger. Although several of the hundreds of COVID-19 constitutional cases have followed the precedent on a few significant occasions, the courts have unveiled a new point of view based less on the social contract than on a strong form of libertarianism. For example, in a case overturning Wisconsin’s COVID-19 emergency measures, the state Supreme Court did not view the problem as a pandemic so much as it viewed it as a tyranny. Saving lives is a laudable, but secondary goal, as one of the judges explained: “The people of Wisconsin have declared that freedom is of paramount importance, establishing a government primarily to protect their freedom.

Libertarian language is not subtle. These cases have the hyperbolic ring of an anti-mask protest on the steps of a state capital. In a case overturning the governor’s pandemic restrictions of Pennsylvania, a federal judge demonstrated with the specter of a coup how the hyper-libertarian approach overhauls and raises the stakes: “In an emergency, even a a vigilant public may lower their guard on its constitutional freedoms only to discover that freedoms, once surrendered, are difficult to regain and that restrictions – though opportune in the face of an emergency – may persist long after the immediate danger be passed.

the Jacobson the court held that government is ordered for the good of all of us, and so the rights of individuals, while sacred, can be overruled when necessary for the common good. From a legal standpoint, the Jacobson court established a reasonable necessity test, not a balance between individual rights and the public good.

But in these new libertarian cases, the reasoning is reversed. Government is established primarily to protect the liberty of individuals, and that individual liberty must be protected even if it puts the rest of society at risk. The judge in the Pennsylvania case put it this way: “The Constitution cannot accept the concept of a ‘new normal’ where the fundamental freedoms of the people can be subordinated to unlimited emergency mitigation measures. On the contrary, the Constitution fixes certain lines which cannot be crossed, even in an emergency. The task of the court, according to the judge, is “to balance the legitimate authority of public officials in the event of a health emergency with the constitutional rights of citizens.” As a result, the hypothetical risk of a governor using emergency power to become a tyrant becomes more urgent to prevent than the virus that actually kills people.

These cases are not outliers. The recent rigorous scrutiny of religious claims is entirely consistent with nearly two decades of Supreme Court cases overturning once-standard public health measures on the grounds of corporate free speech. In addition, the Federal Court of Appeal and the Supreme Court are now more populated with sympathetic judges or even leading the charge of hyper-libertarianism. In their view of America, the social contract is a one-sided deal: You have the right to exploit or be exploited, to win or to lose – to beat COVID or to die – as individuals. The collective has nothing to say about it. This version of America looks like a Hobbesian war of all against all, not a community of citizens building value together, and it is leading to a few big winners in closed enclaves and a sick, tired, stressed and overwhelmed majority. more and more humiliated.

It’s an ugly view of America. A country that started with the idea of ​​the Commonwealth, where the individual would prosper and be free if the community prospered, where individual economic success was understood as a necessary means to a social end, has become a win-win competition in a Social Colosseum. Those in need of help are ridiculed as losers and parasites, and the call to put self-interest behind the common good is angrily denounced as socialism.

It’s an ugly vision, but more importantly, a doomed vision. The problems America faces, from extreme social inequalities to climate change, require cooperation and shared sacrifice. As the Jacobson said the court, a “society founded on the rule that everyone is a law for themselves would soon face disorder and anarchy.”

The battle of public health law for the soul of the nation is the fight for America’s future. As in recent Supreme Court cases on COVID-19 and religion, judges are now applying their strictest control to overturn painful but reasonable emergency regulations on the grounds that the highest law in the United States is the protection of individual liberty. Elevating individual freedom above the common good will not bring COVID-19 under control and will not help the nation cope with the current challenges of social inequalities, climate change or deep social divisions.

To achieve equity and survive, the nation must heed the more traditional wisdom of American law: “True freedom for all could not exist under the application of a principle which recognizes the right of each individual to use. his own, whether with respect for his person or his property, regardless of the damage that may be done to others.