Ordered Liberty

With all the hubbub surrounding issues related to migration issues of late, my thoughts have turned again to the concept of ordered liberty. The ability of the federal, state, and local governments to protect the people is dependent upon adherence to the concept of ordered liberty as set forth in laws of the United States, and the judicial decisions interpreting the Constitution of the United States and the other laws flowing therefrom. True freedom, is not the freedom to do as one wishes without due consideration for the needs of society as a whole. In 1904 The Supreme Court of the United heard arguments in the case of Jacobson v. Massachusetts. The case asked the Supreme Court of the United States to determine whether a Massachusetts statute mandating that all school age children be vaccinated against Smallpox was constitutional. The Court in a 7-2 decision issued in February of 1905 affirmed the constitutionality of the law. The majority opinion written by Mr. Justice Harlan I, included language that remains relevant almost a century and a quarter after the decision was handed down, id: South Bay United Pentecostal Church v. Newsom 590 U. S. ____ (2020).

We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But 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. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned." Railroad Co. v. Husen, 95 U. S. 465, 95 U. S. 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 169 U. S. 628, 169 U. S. 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont 140, 148. In Crowley v. Christensen, 137 U. S. 86, 137 U. S. 89, we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men." Jacobson v. Massachusetts, 197 U.S. 11, 25-27(1905).

The language is important because, it affirms the existence of a scheme of ordered liberty in which, the rights, freedoms, and liberties can be reasonably restrained, or checked if the government deems it necessary to do so in order to secure "the safety, health, peace, good order, and morals of the community." See: Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). The concept of ordered liberty so eloquently stated by Mr. Justice Harlan I, is one of the foundational pillars of the American Republic, and its legal system first explicitly articulated by Chief Justice Marshall in Gibbons v. Ogden, Citations: 22 U.S. 1; 9 Wheat. 1; 16 L. Ed. 23; 1824 U.S. LEXIS 370 (1824). The extent to which, an individual can exercise their rights defined by the Constitution subject to the restraints placed on them by the doctrine of ordered liberty, is dependent to a certain degree which, the protections contained in the Bill of Rights are incorporated as being applicable to the States. Application of the Bill of Rights to the states, and by extension the people occurs under the operation of the two Due Process Clauses contained in the Fifth, and the Fourteenth Amendments.