The Constitutional Context of Jacobson—Police Power

When Jacobson and Pear set out to appeal their convictions, they did so at a time when American constitutional law had undergone nearly three decades of challenges that had limited the scope of police power—the power of a state to make laws to promote the common good and general welfare of its citizens. The concept of “police power” is deeply rooted in American law, originating from traditions of ancient household governance and Roman law, articulated by William Blackstone in English common law, and expressed in the continental European science of police. From the early days of the Republic, state legislatures did not hesitate to make and enforce all sorts of police laws, particularly those directed at promoting and preserving public health, and judges generally upheld these laws even when they deprived individuals of their liberty (quarantine) or their property (nuisance abatement). Indeed, until the passage of the Fourteenth Amendment in 1868, there was no effective federal constitutional basis on which to challenge a state's right to pass such legislation.

William Novak has argued that from the colonial period up to the Civil War, American communities enacted and enforced regulations and laws covering nearly every public and private interaction “from Sunday observance to the carting of offal.” Americans regarded the ideal society as a “well-regulated” one in which local authority managed both the economy and citizens’ lives through a myriad of rules. They did not see government as a necessary evil that limited individual liberty; rather they saw government as a positive force obliged to protect its citizens. The arguments of political philosophers like John Stuart Mill notwithstanding, American antebellum communities never operated on a laissez-faire basis, but instead promulgated rules and regulations designed to control both markets and morals, to ensure the prosperity, health, and welfare of their citizens: “the notion of a well-regulated society secured by state police power was an essential part of the American governmental tradition.”

After the Civil War, Congress summarily abolished slavery in the Thirteenth Amendment (ratified 6 December 1865).