Mask Mandates, Police Powers, and the U.S. Constitution: Jacobson v. Massachusetts

It’s probably safe to assume that a larger percentage of Americans are fed up with mask mandates.  Where, you may ask, do state and local officials get the authority to force me to wear a mask?

Over the past year and a half, state governments have greatly relied on a 116-year-old Supreme Court decision to justify mask mandates.  That decision is Jacobson v. Massachusetts.

Jacobson was a reverend in Cambridge, Massachusetts.  Around 1900, the Cambridge board of health required all residents to get vaccinated against smallpox or pay a $5 fine.  The board of health was acting pursuant to authority expressly given to it by the state legislature.  At that time, the legislature enacted a plainly-worded statute which allowed:

the board of health of a city or town if, in its opinion, it is necessary for the public health and safety shall require and enforce the vaccination and revaccination of all inhabitants thereof and shall provide them with the means of free vaccination.  Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.

Jacobson, representing himself at trial, challenged the constitutionality of both the statute and the board’s requirement.  He lost at trial and again on appeal to the Massachusetts Supreme Judicial Court.  His case eventually made it to the U.S. Supreme Court where Jacobson’s arguments were again rejected. 

The Court’s decision, written by Justice Harlan, is one of the most favorable rulings ever made for expanding state governments’ police powers.

However, there are significant distinctions that can be made between the decision in Jacobson and the current imposition of masks.

Legislative Power vs. Executive Power

Almost every page of the Jacobson decision gives deference to the state legislatures’ power to make laws regulating health and public safety.  Here are just a few highlights:

Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? 

(Perhaps Justice Harlan is unaware of the court’s power of judicial review established in Marbury v. Madison.)

The legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

No court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps or possibly—not the best either for children or adults.

Mask mandates, however, are mentioned nowhere in the statutory laws.  No legislature that I’m aware of has enacted laws concerning the wearing of masks.  (Though this may change in coming  years.)  Instead these mandates are being imposed solely by the executive branch using existing statutory laws that, at best, are being stretched—perhaps to the breaking point.

A good example of this is the statewide school mask mandate imposed by the Massachusetts education department and education board.  Unlike the vaccine mandate challenged in Jacobson, there is no clear statutory authority authorizing education officials to impose masks.  They are basing their authority on a single sentence in M.G.L. c. 69, section 1B which authorizes the education board to ensure that students attend school in a structurally safe environment, i.e., that all school buildings are up to code.

The board shall establish minimum standards for all public early childhood, elementary, secondary and vocational-technical school buildings, subject to the provisions of the state building code.  The board shall establish standards to ensure that every student shall attend classes in a safe environment.  (Emphasis added.)

No honest person could read this paragraph and say that it permits the board of education to mandate masks or make any other form of health policies for students.

The excessive deference given to state legislatures in the Jacobson decision should not now be extended to the executive agencies of each state.

$5 Fine vs. Second-Class Citizenship

As stated above, the fine at issue in Jacobson was a mere $5.  This would be about $150 in today’s currency.  According to the attorneys who argued Jacobson’s case before the Supreme Court, the $5 fine was the most extreme penalty ever imposed by a state for failure to comply with a vaccine mandate.  After showing that three quarters of the states had no penalty whatsoever for failing to submit to vaccination and that the remaining states had, at best, a nominal penalty for refusal, Jacobson’s attorneys noted: “None of these cases are as extreme as the decision in the case at bar.”

If a $5 fine is extreme, how should we define total exclusion from school, work, religious worship, or in-person commerce?  Those are the consequences of violating almost every state-imposed mask mandates.

The Court in Jacobson reserves the right for itself to strike down a state’s public health policy when the policy “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 

The Court notes,

The mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

It is arguable that the policies and penalties for failure to wear a mask (e.g., exclusion from school, work, religion, and commerce) rise to the level of a constitutional violation that may rightfully be addressed by the courts.

Smallpox vs. COVID

The Court in Jacobson went to great lengths to detail the long, successful history of smallpox vaccination in the western world.  In one of the lengthiest footnotes in Supreme Court history, Justice Harlan outlines the use of the smallpox vaccine beginning in 1808, nearly 100 years prior to the Court’s decision.

No such historical argument can be made regarding mask mandates.  And, unlike the smallpox vaccine, the efficacy of mask use in slowing the spread of COVID is highly questionable.

Here are a few key points from a recent study conducted by researchers from the University of Louisville:

– Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.

– Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.

– Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.

No such uncertainty existed concerning smallpox vaccines at the time of Jacobson.  The vaccine mandate at issue in that case bears no resemblance to the mask policies at issue now.

William Jennings Bryan “Cross of Gold” Speech, July 9, 1896

I would be presumptuous, indeed, to present myself against the distinguished gentlemen to whom you have listened if this were but a measuring of ability; but this is not a contest among persons. The humblest citizen in all the land when clad in the armor of a righteous cause is stronger than all the whole hosts of error that they can bring. I come to speak to you in defense of a cause as holy as the cause of liberty—the cause of humanity. When this debate is concluded, a motion will be made to lay upon the table the resolution offered in commendation of the administration and also the resolution in condemnation of the administration. I shall object to bringing this question down to a level of persons. The individual is but an atom; he is born, he acts, he dies; but principles are eternal; and this has been a contest of principle.

Never before in the history of this country has there been witnessed such a contest as that through which we have passed. Never before in the history of American politics has a great issue been fought out as this issue has been by the voters themselves.

On the 4th of March, 1895, a few Democrats, most of them members of Congress, issued an address to the Democrats of the nation asserting that the money question was the paramount issue of the hour; asserting also the right of a majority of the Democratic Party to control the position of the party on this paramount issue; concluding with the request that all believers in free coinage of silver in the Democratic Party should organize and take charge of and control the policy of the Democratic Party. Three months later, at Memphis, an organization was perfected, and the silver Democrats went forth openly and boldly and courageously proclaiming their belief and declaring that if successful they would crystallize in a platform the declaration which they had made; and then began the conflict with a zeal approaching the zeal which inspired the crusaders who followed Peter the Hermit. Our silver Democrats went forth from victory unto victory, until they are assembled now, not to discuss, not to debate, but to enter up the judgment rendered by the plain people of this country.

But in this contest, brother has been arrayed against brother, and father against son. The warmest ties of love and acquaintance and association have been disregarded. Old leaders have been cast aside when they refused to give expression to the sentiments of those whom they would lead, and new leaders have sprung up to give direction to this cause of freedom. Thus has the contest been waged, and we have assembled here under as binding and solemn instructions as were ever fastened upon the representatives of a people.

We do not come as individuals. Why, as individuals we might have been glad to compliment the gentleman from New York [Senator Hill], but we knew that the people for whom we speak would never be willing to put him in a position where he could thwart the will of the Democratic Party. I say it was not a question of persons; it was a question of principle; and it is not with gladness, my friends, that we find ourselves brought into conflict with those who are now arrayed on the other side. The gentleman who just preceded me [Governor Russell] spoke of the old state of Massachusetts. Let me assure him that not one person in all this convention entertains the least hostility to the people of the state of Massachusetts.

But we stand here representing people who are the equals before the law of the largest cities in the state of Massachusetts. When you come before us and tell us that we shall disturb your business interests, we reply that you have disturbed our business interests by your action. We say to you that you have made too limited in its application the definition of a businessman. The man who is employed for wages is as much a businessman as his employer. The attorney in a country town is as much a businessman as the corporation counsel in a great metropolis. The merchant at the crossroads store is as much a businessman as the merchant of New York. The farmer who goes forth in the morning and toils all day, begins in the spring and toils all summer, and by the application of brain and muscle to the natural resources of this country creates wealth, is as much a businessman as the man who goes upon the Board of Trade and bets upon the price of grain. The miners who go 1,000 feet into the earth or climb 2,000 feet upon the cliffs and bring forth from their hiding places the precious metals to be poured in the channels of trade are as much businessmen as the few financial magnates who in a backroom corner the money of the world.

We come to speak for this broader class of businessmen. Ah. my friends, we say not one word against those who live upon the Atlantic Coast; but those hardy pioneers who braved all the dangers of the wilderness, who have made the desert to blossom as the rose—those pioneers away out there, rearing their children near to nature’s heart, where they can mingle their voices with the voices of the birds—out there where they have erected schoolhouses for the education of their children and churches where they praise their Creator, and the cemeteries where sleep the ashes of their dead—are as deserving of the consideration of this party as any people in this country.

It is for these that we speak. We do not come as aggressors. Our war is not a war of conquest. We are fighting in the defense of our homes, our families, and posterity. We have petitioned, and our petitions have been scorned. We have entreated, and our entreaties have been disregarded. We have begged, and they have mocked when our calamity came.

We beg no longer; we entreat no more; we petition no more. We defy them!

The gentleman from Wisconsin has said he fears a Robespierre. My friend, in this land of the free you need fear no tyrant who will spring up from among the people. What we need is an Andrew Jackson to stand as Jackson stood, against the encroachments of aggregated wealth.

They tell us that this platform was made to catch votes. We reply to them that changing conditions make new issues; that the principles upon which rest Democracy are as everlasting as the hills; but that they must be applied to new conditions as they arise. Conditions have arisen and we are attempting to meet those conditions. They tell us that the income tax ought not to be brought in here; that is not a new idea. They criticize us for our criticism of the Supreme Court of the United States. My friends, we have made no criticism. We have simply called attention to what you know. If you want criticisms, read the dissenting opinions of the Court. That will give you criticisms.

They say we passed an unconstitutional law. I deny it. The income tax was not unconstitutional when it was passed. It was not unconstitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind; and we cannot be expected to know when a judge will change his mind.

The income tax is a just law. It simply intends to put the burdens of government justly upon the backs of the people. I am in favor of an income tax. When I find a man who is not willing to pay his share of the burden of the government which protects him, I find a man who is unworthy to enjoy the blessings of a government like ours.

He says that we are opposing the national bank currency. It is true. If you will read what Thomas Benton said, you will find that he said that in searching history he could find but one parallel to Andrew Jackson. That was Cicero, who destroyed the conspiracies of Cataline and saved Rome. He did for Rome what Jackson did when he destroyed the bank conspiracy and saved America.

We say in our platform that we believe that the right to coin money and issue money is a function of government. We believe it. We believe it is a part of sovereignty and can no more with safety be delegated to private individuals than can the power to make penal statutes or levy laws for taxation.

Mr. Jefferson, who was once regarded as good Democratic authority, seems to have a different opinion from the gentleman who has addressed us on the part of the minority. Those who are opposed to this proposition tell us that the issue of paper money is a function of the bank and that the government ought to go out of the banking business. I stand with Jefferson rather than with them, and tell them, as he did, that the issue of money is a function of the government and that the banks should go out of the governing business.

They complain about the plank which declares against the life tenure in office. They have tried to strain it to mean that which it does not mean. What we oppose in that plank is the life tenure that is being built up in Washington which establishes an office-holding class and excludes from participation in the benefits the humbler members of our society. . . .

Let me call attention to two or three great things. The gentleman from New York says that he will propose an amendment providing that this change in our law shall not affect contracts which, according to the present laws, are made payable in gold. But if he means to say that we cannot change our monetary system without protecting those who have loaned money before the change was made, I want to ask him where, in law or in morals, he can find authority for not protecting the debtors when the act of 1873 was passed when he now insists that we must protect the creditor. He says he also wants to amend this platform so as to provide that if we fail to maintain the parity within a year that we will then suspend the coinage of silver. We reply that when we advocate a thing which we believe will be successful we are not compelled to raise a doubt as to our own sincerity by trying to show what we will do if we are wrong.

I ask him, if he will apply his logic to us, why he does not apply it to himself. He says that he wants this country to try to secure an international agreement. Why doesn’t he tell us what he is going to do if they fail to secure an international agreement. There is more reason for him to do that than for us to expect to fail to maintain the parity. They have tried for thirty years—thirty years—to secure an international agreement, and those are waiting for it most patiently who don’t want it at all.

Now, my friends, let me come to the great paramount issue. If they ask us here why it is we say more on the money question than we say upon the tariff question, I reply that if protection has slain its thousands the gold standard has slain its tens of thousands. If they ask us why we did not embody all these things in our platform which we believe, we reply to them that when we have restored the money of the Constitution, all other necessary reforms will be possible, and that until that is done there is no reform that can be accomplished.

Why is it that within three months such a change has come over the sentiments of the country? Three months ago, when it was confidently asserted that those who believed in the gold standard would frame our platforms and nominate our candidates, even the advocates of the gold standard did not think that we could elect a President; but they had good reasons for the suspicion, because there is scarcely a state here today asking for the gold standard that is not within the absolute control of the Republican Party.

But note the change. Mr. McKinley was nominated at St. Louis upon a platform that declared for the maintenance of the gold standard until it should be changed into bimetallism by an international agreement. Mr. McKinley was the most popular man among the Republicans ; and everybody three months ago in the Republican Party prophesied his election. How is it today? Why, that man who used to boast that he looked like Napoleon, that man shudders today when he thinks that he was nominated on the anniversary of the Battle of Waterloo. Not only that, but as he listens he can hear with ever increasing distinctness the sound of the waves as they beat upon the lonely shores of St. Helena.

Why this change? Ah, my friends. is not the change evident to anyone who will look at the matter? It is because no private character, however pure, no personal popularity, however great, can protect from the avenging wrath of an indignant people the man who will either declare that he is in favor of fastening the gold standard upon this people, or who is willing to surrender the right of self-government and place legislative control in the hands of foreign potentates and powers. . . .

We go forth confident that we shall win. Why? Because upon the paramount issue in this campaign there is not a spot of ground upon which the enemy will dare to challenge battle. Why, if they tell us that the gold standard is a good thing, we point to their platform and tell them that their platform pledges the party to get rid of a gold standard and substitute bimetallism. If the gold standard is a good thing, why try to get rid of it? If the gold standard, and I might call your attention to the fact that some of the very people who are in this convention today and who tell you that we ought to declare in favor of international bimetallism and thereby declare that the gold standard is wrong and that the principles of bimetallism are better—these very people four months ago were open and avowed advocates of the gold standard and telling us that we could not legislate two metals together even with all the world.

I want to suggest this truth, that if the gold standard is a good thing we ought to declare in favor of its retention and not in favor of abandoning it; and if the gold standard is a bad thing, why should we wait until some other nations are willing to help us to let it go?

Here is the line of battle. We care not upon which issue they force the fight. We are prepared to meet them on either issue or on both. If they tell us that the gold standard is the standard of civilization, we reply to them that this, the most enlightened of all nations of the earth, has never declared for a gold standard, and both the parties this year are declaring against it. If the gold standard is the standard of civilization, why, my friends, should we not have it? So if they come to meet us on that, we can present the history of our nation. More than that, we can tell them this, that they will search the pages of history in vain to find a single instance in which the common people of any land ever declared themselves in favor of a gold standard. They can find where the holders of fixed investments have.

Mr. Carlisle said in 1878 that this was a struggle between the idle holders of idle capital and the struggling masses who produce the wealth and pay the taxes of the country; and my friends, it is simply a question that we shall decide upon which side shall the Democratic Party fight. Upon the side of the idle holders of idle capital, or upon the side of the struggling masses? That is the question that the party must answer first; and then it must be answered by each individual hereafter. The sympathies of the Democratic Party, as described by the platform, are on the side of the struggling masses, who have ever been the foundation of the Democratic Party.

There are two ideas of government. There are those who believe that if you just legislate to make the well-to-do prosperous, that their prosperity will leak through on those below. The Democratic idea has been that if you legislate to make the masses prosperous their prosperity will find its way up and through every class that rests upon it.

You come to us and tell us that the great cities are in favor of the gold standard. I tell you that the great cities rest upon these broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic. But destroy our farms and the grass will grow in the streets of every city in the country.

My friends, we shall declare that this nation is able to legislate for its own people on every question without waiting for the aid or consent of any other nation on earth, and upon that issue we expect to carry every single state in the Union.

I shall not slander the fair state of Massachusetts nor the state of New York by saying that when citizens are confronted with the proposition, “Is this nation able to attend to its own business?”—I will not slander either one by saying that the people of those states will declare our helpless impotency as a nation to attend to our own business. It is the issue of 1776 over again. Our ancestors, when but 3 million, had the courage to declare their political independence of every other nation upon earth. Shall we, their descendants, when we have grown to 70 million, declare that we are less independent than our forefathers? No, my friends, it will never be the judgment of this people. Therefore, we care not upon what lines the battle is fought. If they say bimetallism is good but we cannot have it till some nation helps us, we reply that, instead of having a gold standard because England has, we shall restore bimetallism, and then let England have bimetallism because the United States have.

If they dare to come out in the open field and defend the gold standard as a good thing, we shall fight them to the uttermost, having behind us the producing masses of the nation and the world. Having behind us the commercial interests and the laboring interests and all the toiling masses, we shall answer their demands for a gold standard by saying to them, you shall not press down upon the brow of labor this crown of thorns. You shall not crucify mankind upon a cross of gold.

Source: Official Proceedings of the Democratic National Convention Held in Chicago, Illinois, July 7, 8, 9, 10, and 11, 1896, (Logansport, Indiana, 1896), 226–234. Reprinted in The Annals of America, Vol. 12, 1895–1904: Populism, Imperialism, and Reform (Chicago: Encyclopedia Britannica, Inc., 1968), 100–105.

Arthur Conan Doyle: “The English race had a genius for law”

Arthur Conan Doyle, the author of the Sherlock Holmes stories, died on this day in 1930. In 1904 he gave a lecture on the topic of law and crime in America at the Author’s Club in London. The lecture was written down by an American reporter and published two days later in Baltimore’s newspaper, The Sun. Below is the text of that article.

Novelist Doyle On Uncle Sam’s Homicidal Mania

Sir Arthur Conan Doyle, who is better known to Americans as Dr. Conan Doyle, fiction writer, made a brief speech recently at the Authors’ Club in London, in which he gave certain interesting observations on the prevalence of crime in the United States. A verbatim report of Dr. Doyle’s remarks attributes the following statements to him

The British, army in South Africa lost during three years 22,000 men from all causes ; in three years the United States lost 31,000 men from homicide. London, with 6,000,000 inhabitants, had 24 murders last year; Chicago, with less than 2,000,000, had 128. Of London’s 24 9 were hanged, of Chicago’s 128 1 was hanged. The single States of Georgia and South Carolina had each more murders than the whole British Empire. Nor was this due to emigrants ; it was most marked in the purely American States.

It is undeniable that the number of homicides in the United States every year is vastly in excess of those in Great Britain or any European country which publishes statistics of crime.

Whether measured by robbery, divorce or any other symptom, asserts Dr. Doyle, the irregular state of things in the United States bids fair to exceed all European countries combined.

What is the remedy? The British author suggests that in this Republic

the law is loosely administered ; that judges are not as free as they are in Great Britain ; that they are influenced by political motives that there is a pull hither and thither and justice is not administered. Assuredly, he concludes, in the establishment, of a pure, independent judiciary throughout America there is the best possible scope for the energy of Roosevelt.

Of course the versatile novelist, like most foreigners who discuss American affairs, had to make the inevitable slip. He seems to think that President Roosevelt appoints all of our judges instead of the comparatively few jurists who constitute the Federal judiciary. The error is immaterial, however. Ills assumption that judges are mainly responsible for the failure to punish men guilty of homicidal crimes is not borne out by the facts. The responsibility rests chiefly upon juries. In communities in which human life is rated too cheaply and in which there is a public opinion which looks with leniency upon the settlement of personal quarrels with deadly weapons, juries will not be influenced solely by the law or the evidence or the court’s instructions. The judge may seek with all his powers to secure the enforcement of the law. Re will not succeed if public sentiment and local traditions constitute an “unwritten law” stronger than the statutes. In other cases, where the community believes the ends of justice would be served by the conviction and punishment of the accused, the latter by appeals to higher courts and by resorting to the various expedients known to all resourceful lawyers escapes the penalty which he seemed to deserve. There are thoughtful American lawyers, including a justice of the Supreme Court of the United States, who bold that there should be restrictions on the right of appeal. If abuses exist because appeals are almost unlimited, it is also true that there have been tearful miscarriages of justice in England because the right of appeal in criminal cases is recognized to a very limited degree there and practically depends upon the consent of the judge in whose court the accused was convicted.

Many Americans will agree with Dr. Doyle that the number of homicides in this country every year is a cause for deep concern to the people of the United States. The homicidal mania is not sectional. It knows no geographical limitations. It can be stamped out only by a stern enforcement of the law. It is gratifying to note a recent tendency on the part of the people of our several geographical subdivisions to sweep before their own doors before they start out to cleanse the premises of their neighbors. Homicide is, indeed, the great national crime. It ought to be checked in the North. the South, the East and the West. It is not argument for the pot to call the kettle black, and hence it is not in that spirit that Americans might call the attention of Dr. Doyle to certain weaknesses of his British brethren. It is said that some years ago President Roosevelt, who then held a less exalted position under the Government than be now fills, was at a banquet at which Rudyard Kipling was a guest. Mr. Kipling expatiated forcibly and at length upon the national crime of Americans, the thousands of homicides every year. Mr. Roosevelt, so the story goes, listened to him attentively and then observed: “I agree with you, Mr. Kipling, we as a nation are guilty of crime. We kill men.” Mr. Kipling was pleased. “But,” added Mr. Rposevelt, “Great Britain also has its national crime. Would you like me to tell you what it is?” Mr. Kipling signified that he would like to have the information. “Well,” replied Mr. Roosevelt, “the British national crime is wife-beating. We kill men ; you beat women.”

In England, according to Mr. Labouchere’s magazine, London Truth, judges make a broad distinction between crimes against property and assault and battery. The man who beats another, or pummels his wife, any female relative or member of the weaker sex, stands a much better chance for a light sentence than the man who shoots or snares a rabbit on property that does not belong to him, or steals goods from his neighbor. Of course this distinction may indicate a more subtle power of discrimination than that which prevails in the United States. But to the impartial observer it would seem that John Bull and Jonathan would be more respected if the former put an end to wife-beating and the later to the killing of men. Both crimes are a disgrace to civilization in the twentieth century.

Election Fraud and the U.S. Supreme Court


In recent years the U.S. Supreme Court has shown zero tolerance for voter fraud or for government policies and actions that dilute the value of a citizen’s vote.

Below are just a few quotes from the Court on the subject of fraudulent voting and illegal election practices.

Effect of Forged Ballots

The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest [count] is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States. Anderson v. United States, 417 U.S. 211, 226

[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555.

Constitutional Right to Have Only Legal Votes Counted

Obviously included within the right to [vote], secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted if they are validly cast. United States v. Classic, 313 U.S. 299, 315 (1941).

[T]he right to have the vote counted [means counted] at full value without dilution or discount. Reynolds v. Sims, 377 U.S. 533, 555.

Every voter in a federal . . . election, whether he votes for a candidate with little
chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. Anderson v. United States, 417 tJ.S. 211, 227.

Equal Protection under the 14th Amendment

The right to vote is protected in more than the initial allocation of the franchise.
Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. Bush v. Gore, 531 U.S. 98, 104-5.

[W]henever a state or local government decides to select persons by popular election to perform governmental functions, [equal protection] requires that each qualified voter must be given an equal opportunity to participate in that election. Hadley, v. Junior College District, 397 U.S. 50, 56.

The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of [the Supreme Court’s] decisions. Gray v. Sanders, 372 U.S. 368, 380.

Court’s Authority to Decide Voter Fraud Cases

A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question. Bush, 531 U.S. at 113

The Texualist’s Dilemma: the Gold Standard and the U.S. Constitution

bullion gold gold bars golden
Photo by Pixabay on

The following is an except from my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent:

Judge Robert Bork, a well-known proponent for strict constitutional interpretation, stated during his Supreme Court nomination hearings that “this Nation has grown in ways that do not comport with the intentions of the people who wrote the Constitution.”  Nevertheless, Bork admitted that “it is simply too late to go back and tear…up” much of the legal precedent that has been created: “I cite to you the Legal Tender cases….Scholarship suggests that the framers intended to prohibit paper money.  Any judge who today thought he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench.”[1]

10/9/1987 President Reagan meeting with Robert Bork in the White House Residence

Judge Bork’s statements show the dilemma faced by constitutional textualists who disagree with legal tender laws.  Textualists must either concede defeat of the Constitution and work to improve what they believe is unconstitutional precedent (i.e., the Legal Tender cases) or they can stay faithful to the Constitution and advocate changes that are both impractical and unrealistic, such as eliminating paper money and returning to the gold standard.  This latter course of action, despite its seeming futility, does have its adherents.

Dr. Edwin Vieira, for instance, in his article The Forgotten Role of the Constitution in Monetary Law, asks “Why…do so many monetary reformers act as if the Constitution were irrelevant to their concerns?”  The answer, he believes, “maybe that these ‘non-constitutional’ monetary reformers consider a campaign for constitutional reform hopelessly quixotic.  Indeed, many people scoff that any variety of constitutional reform is ultimately delusive, inasmuch as modern-day politicians, legislators, judges and bureaucrats have successfully (and apparently with public approbation) set aside the original intent of the Constitution and substituted a ‘living’ Constitution.”  To Vieira, “the only delusion here is in the minds of those espousing such cynical views.”[2]  What, then, is the Doctor’s solution?

Vieira suggests that “only a few articles in prestigious journals should be necessary to establish beyond any further debate what a constitutional dollar is.  And, once established as a silver coin, the dollar cannot, without amendment of the supreme law, be redefined.”[3]

While probably no one would suggest that Dr. Vieira “ought to be accompanied by a guardian,” many would likely find his ideas a bit farfetched.  It is almost impossible to believe that a few journal articles could return this country to a commodity-based currency.  And, supposing they could, would a commodity-based currency be either feasible or desirable?  The answer is no, according the noble-prize-winning economist Milton Friedman.

Milton Friedman

Dr. Friedman readily acknowledges the framers’ intent to create a commodity-based currency: “When the Constitution was enacted, the power given to Congress ‘to coin money, regulate the value thereof, and of foreign coin’ referred to a commodity money: specifying that the dollar shall mean a definite weight in grams of silver or gold.” [4] But, despite the framers’ intent, Friedman believes that today “[i]t is neither feasible nor desirable to restore a gold- or silver-coin standard.”[5]

This is because paper money, though incongruent with the Constitution, has become universally accepted as our economy’s medium of exchange.  As Friedman argues, “each person accepts [paper money] because he is confident that others will.  The pieces of paper have value because everybody thinks they have value.  Everybody thinks they have value because in his experience they have had value.”  And this acceptance is vital since “[t]he United States could not operate at more than a small fraction of its present level of productivity without a common and widely accepted medium of exchange.”[6]  Thus, pulling the rug out from under this system, as Dr. Vieira suggests, could greatly damage Americans’ confidence in their currency and could lead to irreparable economic harm.

Nevertheless, the constitutional problem still remains.  Paper money, though universally accepted and vital for the efficient exchange of goods, still violates the Constitution.  And the honest few who still value and respect the Constitution, men such as Dr. Vieira, will continue to remind us of this.  But what can be done?  How can we remedy the constitutional problems caused by paper money without hurting our economy?  To attempt to answer these questions, we must turn again to Milton Friedman.

[1] The Supreme Court of the United States Nominations 1916-1987, vol. 14 pages 292-293 (Mersky & Jacobstein)

[2] Edwin Vieira, Jr., The Forgotten Role of the Constitution in Monetary Law, 2 Tex. Rev. Law & Pol. 78, 123 (1997)

[3] Id.

[4] Milton Friedman, Free to Choose, (Harcourt, Inc., 1990), 307

[5] Id. at 308

[6] Id. at 249

Check out my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent available now on


The Legal Tender Cases

dollar banknote on white table
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The following is an except from my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent:

The question at issue in the Legal Tender cases was whether Congress had the constitutional authority to issue legal tender notes (i.e., paper dollars) which were not redeemable for gold or silver.  These notes, as legal tender, could be used by debtors to pay off their private debts.  However, once debtors began paying creditors with green pieces of paper instead of gold and silver, creditors, with just cause, sought legal relief claiming that legal tender notes were unconstitutional.

In all of the Legal Tender cases both the majority and the dissent openly admit that issuing legal tender notes is not a power expressly granted to the Congress in the Constitution.  Therefore, the question turned to whether issuing such notes was justified by the “necessary and proper” clause in Article 1 Section 18.

money - John Marshall
Chief Justice John Marshall

The Court had interpreted the “necessary and proper” clause decades earlier in McCullough v. Maryland.  In McCullough, Chief Justice Marshall, on behalf of the majority, wrote “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”[1]  It is from this interpretation of the “necessary and proper” clause that Justice Chase begins his arguments against legal tender.

In Hephurn v. Griswold, the first Legal Tender case, Chase writes that “In the rule stated by Chief Justice Marshall, the words appropriate, plainly adapted, really calculated, are qualified by the limitation that the means must be not prohibited but consistent with the letter and spirit of the Constitution.  Nothing so prohibited or inconsistent can be regarded as appropriate, or plainly adapted, or really calculated means to any end.”[2] (Italics added)

money - chase
Chief Justice Salmon P. Chase

Chase believed that the letter and spirit of the Constitution directly conflicted with legislation allowing Congress to issue legal tender notes.  To make his argument, Chase uses several sections of the Constitution and the Bill of Rights.  The sections included Article 1 section 10, which prohibits states from interfering in our right to form contracts, and the Fifth Amendment which was intended to prevent the federal government from taking our “life, liberty, or property without due process of law” or taking private property for public use “without just compensation.”

[1] McCulloch v. Maryland, 17 U.S. 316, 421 (1819)

[2] Hepburn v. Griswold, 75 U.S. 603, 622 (1870)

Check out my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent available now at 

Monetarism & the Constitution

Edmund Burke and the Law

NPG 655; Edmund Burke studio of Sir Joshua Reynolds

Edmund Burke, an eighteenth century philosopher and statesman, died on this day in 1797.  Burke was born in Ireland and educated at Trinity College, Dublin.  After graduation, Burke’s father, who was a lawyer, sent him to Middle Temple in London to study law.  Burke quit his studies to travel through Europe and pursue a literary career.  His writings cover a broad range of topics including aesthetics, political science, and ethics.

Below are Burke’s most notable quotes regarding the law:

Natural Law

We must all obey the great law of change. It is the most powerful law of nature, and the means perhaps of its conservation.

All human laws are, properly speaking, only declaratory; they have no power over the substance of original justice.

There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity — the law of nature, and of nations.

Manners are of more importance than laws. The law can touch us here and there, now and then. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation like that of the air we breathe in.

In this choice of inheritance we have given to our frame of polity the image of a relation in blood, binding up the constitution of our country with our dearest domestic ties, adopting our fundamental laws into the bosom of our family affections, keeping inseparable and cherishing with the warmth of all their combined and mutually reflected charities our state, our hearths, our sepulchres, and our altars.

Government, Citizens, and the Law

The power of discretionary disqualification by one law of Parliament, and the necessity of paying every debt of the Civil List by another law of Parliament, if suffered to pass unnoticed, must establish such a fund of rewards and terrors as will make Parliament the best appendage and support of arbitrary power that ever was invented by the wit of man.

It is the function of a judge not to make but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.

People crushed by law have no hopes but from power. If laws are their enemies, they will be enemies to laws; and those, who have much to hope and nothing to lose, will always be dangerous, more or less.

To execute laws is a royal office; to execute orders is not to be a king. However, a political executive magistracy, though merely such, is a great trust.

The most favourable laws can do very little towards the happiness of people when the disposition of the ruling power is adverse to them.

Laws are commanded to hold their tongues among arms; and tribunals fall to the ground with the peace they are no longer able to uphold.

Law in America

In no country perhaps in the world is law so general a study [as in America]…. This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources…. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze.

I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the Plantations.

Famous Composers Who Studied Law

chords sheet on piano tiles
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“Music is full of people who might have become lawyers.  It never seems to happen the other way around.”

This quote is from David W. Barber’s excellent book Bach, Beethoven, and the Boys.  And it’s certainly true.  Here are just some of the famous composers who gave up the law to pursue a career in music.

George Frideric Handel


Handel was born in Germany in 1685.  At the age of 17 he enrolled at the University of Halle where he studied law under the jurist Christian Thomasius.

Although Handel never pursued a career in the legal profession, his education left him with “respect for the dignity and freedom of man’s mind and the solemn majesty of the law.”[1] 

He became one of the most important baroque composers and is best known for his orchestral pieces “Water Music” and “Royal Fireworks Music” as well as his oratorio “Messiah.”

Thomas Arne

thomas arne

Arne composed one of the most moving patriotic songs of all time: Rule, Britannia!   He was born in London in 1710.   He studied at Eton College before becoming an apprentice at a solicitor’s office. After three years of apprenticeship, Arne quit his legal training and focused on musical composition.  His father, after watching Thomas perform at a musical gathering, supported the decision.

Georg Philip Telemann


Telemann was a self-taught, prolific composer of the late Baroque period.  He was born in Germany in 1681.  He enrolled at the University of Leipzig and began studying law in 1701.  But his attention to law was soon eclipsed by his love music and any idea of pursuing a legal career was forgotten.

Telemann composed a wide range of sacred and secular music.  The Oxford Dictionary of Music describes his music as having “surface charms rather than depth.  The best of it, however, is delightful.

His key words include the comic opera Pimpinone, the cantatas The Schoolmaster and The Joy of Country Life, and the oratorios The Death of Jesus and The Resurrection of Christ.

Robert Schumann


Like Telemann, German composer Robert Schumann  (born in 1810) studied law at the University of Leipzig.  He also attended the University of Heidelberg where he joined the fraternity known as Corps Saxo-Borussia Heidelberg.

Schumann’s career as a performer was ended prematurely when he broke his fingers using a device that he made for strengthening his  hands.  Despite this setback, he greatly contributed to the music of his day as both a composer and a critic. He wrote under the pen names Florestan who had an easy-going nature and Eusebius who was much more stern and critical.

He married the famous pianist Clara Wieck and befriend and mentored the young Johannes Brahams.  Sadly, the end of his life was ruined by depression.  After he attempted to drown himself in the Rhine, he was confined to an insane asylum and died shortly thereafter.

Schumann’s style of composition combines elements of both classical structure and Romantic expression.  His most notable works include the orchestral symphony Spring and his Opus 68 Album for the Young.

Leopold Mozart


Leopold is best known for being the father of Wolfgang Amadeus Mozart.  Nevertheless, he was a noteworthy composer and musician in his own right with his most popular work being the “Toy Symphony.”

Leopold received a law degree in 1738 from the Benedictine University (now the University of Salzburg) but never pursued a legal career.

Pyotr Ilyich Tchaikovsky


Born in Russia on May 7, 1849, Tchaikovsky attended the Imperial School of Jurisprudence in Saint Petersburg before working as a civil servant in the Ministry of Justice.  While working at the ministry, Tchaikovsky studied music and became a professor of music theory at the Moscow Conservatory.

His most-notable works are the ballets “Swan Lake” and the “Nutcracker.”

Igor Stravinsky


Stravinsky studied law and philosophy at St. Petersburg University.  Although he disliked school, he completed his courses and graduated in 1905.

Before graduation, Stravinsky shared some of his musical pieces with the composer Nikolay Rimsky-Korsakov.  (Korsakov’s son was one of Stravinsky’s fellow law students.)  Korsakov was impressed by what he saw and agreed to take Stravinsky as a private pupil.

Stravinsky’s most important works include the “Symphony of Psalms” and the ballets “The Firebird”, “Petrushka”, and “The Rite of Spring.”

Click here for a full list of composers who studied law.

[1] Lang, Paul Henry (1966). George Frideric Handel. New York: W.W. Norton & Co.

Federal Baseball Club v. National League

white baseball ball on brown leather baseball mitt
Photo by Steshka Willems on

On this day in 1922 the US Supreme Court ruled that professional baseball was a sport and not a business.  Therefore, baseball was not subject to federal anti-trust laws.

The Court’s unanimous decision was written by Justice Oliver Wendell Holmes.  It reads as follows:

This is a suit for threefold damages brought by the plaintiff in error under the Anti-Trust Acts of July 2, 1890, c. 647, § 7, 26 Stat. 209, 210, and of October 15, 1914, c. 323, § 4, 38 Stat. 730, 731. The defendants are the National League of Professional Base Ball Clubs and the American League of Professional Base Ball Clubs, unincorporated associations, composed respectively of groups of eight incorporated baseball clubs, joined as defendants; the presidents of the two Leagues and a third person, constituting what is known as the National Commission, having considerable powers in carrying out an agreement between the two Leagues, and three other persons having powers in the Federal League of Professional Base Ball Clubs, the relation of which to this case will be explained. It is alleged that these defendants conspired to monopolize the baseball business, the means adopted being set forth with a detail which, in the view that we take, it is unnecessary to repeat.

The plaintiff is a baseball club incorporated in Maryland, and, with seven other corporations, was a member of the Federal League of Professional Base Ball Players, a corporation under the laws of Indiana, that attempted to compete with the combined defendants. It alleges that the defendants destroyed the Federal League by buying up some of the constituent clubs and in one way or another inducing all those clubs except the plaintiff to leave their League, and that the three persons connected with the Federal League and named as defendants, one of them being the President of the League, took part in the conspiracy. Great damage to the plaintiff is alleged. The plaintiff obtained a verdict for $80,000 in the Supreme Court, and a judgment for treble the amount was entered, but the Court of Appeals, after an elaborate discussion, held that the defendants were not within the Sherman Act. The appellee, the plaintiff, elected to stand on the record in order to bring the case to this Court at once, and thereupon judgment was ordered for the defendants. National League of Professional Baseball Clubs v. Federal Baseball Club of Baltimore, 50 App.D.C. 165, 269 F. 681, 68. It is not argued that the plaintiff waived any rights by its course. Thomsen v. Cayser, 243 U. S. 66.

The decision of the Court of Appeals went to the root of the case, and, if correct, makes it unnecessary to consider other serious difficulties in the way of the plaintiff’s recovery. A summary statement of the nature of the business involved will be enough to present the point. The clubs composing the Leagues are in different cities and for the most part in different states. The end of the elaborate organizations and sub-organizations that are described in the pleadings and evidence is that these clubs shall play against one another in public exhibitions for money, one or the other club crossing a state line in order to make the meeting possible. When, as the result of these contests, one club has won the pennant of its league and another club has won the pennant of the other league, there is a final competition for the world’s championship between these two. Of course, the scheme requires constantly repeated traveling on the part of the clubs, which is provided for, controlled, and disciplined by the organizations, and this, it is said, means commerce among the states. But we are of opinion that the Court of Appeals was right.

The business is giving exhibitions of baseball, which are purely state affairs. It is true that, in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and states. But the fact that, in order to give the exhibitions, the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U. S. 648, 155 U. S. 655, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money, would not be called trade of commerce in the commonly accepted use of those words. As it is put by defendant, personal effort not related to production is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the states because the transportation that we have mentioned takes place. To repeat the illustrations given by the court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another state.

If we are right, the plaintiff’s business is to be described in the same way, and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the states.

May 18, 1830: British Inventor Patents and Sells First Lawnmower


On this day in 1830, the British engineer Edwin Budding signed a contract for the mass production of his invention, the lawnmower.  According to the terms of the contract, Budding shared of his profits with an investor named John Ferrabee who paid for the expense of patenting and manufacturing the mowers.  Their first customer was Regent’s Park Zoo in London.