Revised, and Expanded Version of The Irrepressible Myth of Jacobson v. Massachusetts
Earlier this week, I posted a draft of my article, The Irrepressible Myth of Jacobson v. Massachusetts. I received several comments about the relevance of the $5 fine to Justice Harlan’s decision. I have revised, and expanded the paper to address some of these comments. I encourage people to read Part II.C.5, titled “Jacobson’s implied constraint.” I do not think the quantity of the penalty is part of the case’s holding, but I think it provides an implied constraint. And even if you disagree on this point, there are many good reasons to limit Jacobson to its facts. This case–which is out of step with a century of caselaw–should be buried, not revived.
Of special interest to readers, I broke down the relevant fines in other Progressive Era Supreme Court cases. $5 was on the very, very low side. Here is an excerpt:
In 1885, Lee Yick—better known as Yick Wo—was fined $10 for operating a wooden laundry in San Francisco without a permit. Joseph Lochner
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