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The Old Courthouse in downtown St. Louis is getting an update as part of a $380 million revitalization of the grounds of Gateway Arch National Park. An iconic element of the St. Louis skyline, the first iteration of the Old Courthouse was completed in 1828, with various upgrades and expansions occurring over the next decades. The distinct iron and copper dome was completed in 1864. 

While many in St. Louis might have intimate knowledge of the history of the Old Courthouse, most visitors to St. Louis and those living outside the region are likely unaware of why the courthouse is a historic federal building. Aside from its famous silhouette below the Gateway Arch, the Old Courthouse is best known for its role in the Dred Scott case, in which an enslaved Black man sued for his freedom. The case marked the end of an era in which hundreds of slaves sued for their freedom in St. Louis and stoked the tensions that led to the Civil War. 

Once Free, Always Free: The History of Freedom Suits in St. Louis 

In 1807, the Missouri Territory enabled a statute that permitted any person wrongly held in slavery to sue for their freedom. Such suits were referred to as “freedom suits.” Each suit required a charge of trespass of false imprisonment and witness testimony. The process was cumbersome, as the person who brought suit had the burden of proving that they were in fact free, and that their captor had inflicted physical abuse upon them. Furthermore, most would-be petitioners lacked the ability to read or write, not to mention the resources needed to seek counsel. Many cases were handled pro bono by abolitionist attorneys in the community. 

The Missouri Supreme Court interpreted the territorial statute in 1824 and formally established Missouri’s criteria for a freedom suit. The precedent, set in Winny v. Whitesides, was known as “once free, always free.” 

Winny was an enslaved woman owned by Phoebe Whitesides. Whitesides kept Winny as a slave while living in Illinois for a number of years. Winny won her case before the Circuit Court and prevailed again after Whitesides appealed the case to the Missouri Supreme Court. The Supreme Court heard that appeal at the Old Courthouse. On the appeal, the Supreme Court affirmed that a slave taken to a state or territory which had outlawed slavery, by virtue of being in a free land, became a free person. The freedom held even if a former slave returned to a slave state like Missouri. That freedom could not be revoked. 

The Winny v. Whitesides decision ushered in a “golden age” of freedom suits. Approximately 300 freedom suits were brought before the Circuit Court in St. Louis throughout the middle of the 19^th century. More than half of the petitioners prevailed in their fight for freedom under the “once free, always free” doctrine. 

The Dred Scott Freedom Suit 

The Old Courthouse was the site of the trial level freedom suits of Dred Scott and his wife Harriet in 1847 and 1850. When most hear Dred Scott, they jump to the infamous 1857 Supreme Court opinion in Dred Scott v. Sandford that held, “it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted” the Declaration of Independence. The Supreme Court decided that Black people, whether free or enslaved, were not entitled to the privileges enshrined to American citizens in the Constitution. 

Victory in St. Louis

However, the road to the Supreme Court case was a complicated one. Spanning more than a decade of litigation, the Dred Scott case started in St. Louis at the Old Courthouse. The Scotts’ original petition for freedom claimed that they had resided in the free state of Illinois at Rock Island and in the free Wisconsin Territory at Fort Snelling. Because they had been voluntarily held by their owner in these locations where slavery was not permitted, they argued that they were entitled to freedom. The Missouri Circuit Court in St. Louis agreed in 1850. 

Appeal to the Missouri Supreme Court

The Scotts’ alleged owners appealed the case to the Missouri Supreme Court, and the parties again pleaded their cases at the Old Courthouse in downtown St. Louis. The tides had shifted at the high court since the days of “once free, always free,” and the Missouri Supreme Court overturned the Scotts’ victory in the lower court. The court sought to strengthen its position on states’ rights, stating in 1852, “Times are not now as they were when the former decisions on this subject were made. Since then, not only individuals but States have been possessed with a dark and fell spirit in relation to slavery.” In other words, just because you were free in Illinois, you are not guaranteed freedom in Missouri. 

The Federal Suit

After the loss, the Scotts again sued for their liberty in 1853, but this time at the federal level. The federal court had jurisdiction as the Scotts’ so-called owner was residing in New York. However, the court instructed jurors to rely on Missouri law when determining whether or not the Scotts should be free. In light of the recent decision of the Missouri Supreme Court, the Scotts were again denied their freedom. They appealed to the U.S. Supreme Court. 

The Supreme Court’s Dred Scott Decision

The Dred Scott opinion is remembered as one of the darkest moments of jurisprudence in our nation. The majority chose to ignore the expansive ideals of the Constitution, the Declaration of Independence, and our nation in favor of an inhumane and antiquated interpretation of the founders’ intentions. 

The opinion was delivered by Chief Justice Roger Taney, a slave owner and southern sympathizer who outspokenly supported the institution of slavery. At the time, the Supreme Court included four southern justices. Behind the scenes, President-elect James Buchanan pressured northern justices to join the majority, hoping to put an end to the slavery question. Ultimately the efforts resulted in a 7–2 ruling against the Scotts. The decision outraged the growing contingent of anti-slavery Americans and pushed the nation closer to civil war. 

The Old Courthouse’s Legacy in Civil Rights History 

As we have seen here, the Old Courthouse was the stage for early decisive victories for slaves seeking freedom. The Old Courthouse also served as a setting for decisions that reversed those victories and diminished the possibility for former slaves to be guaranteed liberty. Missouri was always viewed as a divided state, and the wild swings in the opinions of the courts over just a handful of decades puts those divisions into stark relief. Soon after the Missouri Supreme Court’s ruling against Dred and Harriet Scott, the state would send thousands of soldiers to serve both the Union and Confederate armies. 

While the Scotts did not ultimately prevail in their fight for freedom, their cases helped to fuel abolitionist movements and provided context to the struggle for Black freedom that has existed since the birth of our nation. A solid majority of the U.S. Supreme Court at the time of the Scott decision believed that the founding fathers saw Blacks as “so far below them in the scale of created beings” that the Constitution couldn’t possibly apply to Blacks enslaved or free. That such unconscionable beliefs were widely held, accepted, and enshrined into law shows the strength of the institutions which slaves, freed Blacks, and abolitionists had to push back against. While the 13^th Amendment abolished slavery, the fight for Black civil rights continues. The relentless spirit of Dred and Harriet Scott in their pursuit of liberty lives on. 

The Old Courthouse Today 

In the Shadow of the Old Courthouse 

Rasmussen Dickey Moore’s St. Louis office is located directly south of the historic Old Courthouse. The landmark serves as a daily reminder of the importance of the pursuit for justice: “Equality for all under the law without bias, or prejudice of any kind.” Moreover, we are reminded of the ongoing struggle for equality that Blacks and other minorities face both in the world at large and in the legal industry specifically. 

RDM is committed to facing these challenges and building a diverse, equitable, and inclusive firm culture where attorneys and staff of all backgrounds can succeed, and we strive to be leaders when it comes to addressing diversity issues in small and mid-sized law firms. The reflection of the Old Courthouse on the walls of our building is an admonishment to build a better future for our attorneys, staff, and clients. 

On January 12th, 2021, the Missouri Court of Appeals affirmed a trial court ruling against Liberty Insurance Corporation, finding it liable for the $7.5 million remaining balance of a wrongful death judgment. The case provides important lessons for insurers on how to avoid being bound to substantial judgments against their insureds, even where viable policy exclusions exist.

Based upon the current state of Missouri law, insurers in the state will continue to face almost unlimited liability in claims where they choose not to immediately address coverage issues. 

How can an insurer avoid the pitfalls found in this case and other complex claims? Rasmussen Dickey Moore has extensive insurance law experience, providing analysis of coverage issues and counseling insurers in litigation matters. RDM represents multiple national insurance providers. RDM takes sophisticated, strategic, innovative, and detail-oriented approaches to each of our clients’ cases.

Continue reading Could Coverage Denials Give Plaintiffs a Blank Check?

Two COVID-19 vaccines have been submitted for approval to the Food and Drug Administration. While this is an important step towards bringing the pandemic under control, the vaccine’s efficacy is limited unless an overwhelming majority of the population is vaccinated.

Current polling suggests that only a slim majority of people would choose to receive the vaccine. So, if large numbers of people are unwilling to receive the vaccine, what’s next? Can the government make vaccination mandatory? Established case law demonstrates that it’s legally feasible, but whether lawmakers choose to pursue such legislation is an entirely different question in the current political atmosphere.

The Current State of COVID-19 Vaccines

As two apparently safe and effective COVID-19 vaccines rapidly make their way through the Food and Drug Administration’s approval process—the FDA has scheduled a meeting on December 10th, 2020 to consider Pfizer’s emergency use authorization request, and Moderna’s request will be considered a week later—certain Americans (health care workers, residents of long-term care facilities) will likely begin receiving their initial dose [1] of the vaccines before the end of 2020. Initial doses of the vaccines are expected to be available to the general public by the spring of 2021.

Though this is good news, data suggests that government and health officials have a long way to go in convincing the public that the vaccines are safe and effective. Polls indicate that only a slight majority of Americans are currently willing to take the vaccine once available. This is unsurprising given the political polarization around vaccines generally, and the government’s COVID-19 response specifically. The frenzied pace at which these vaccines were developed may also cause skepticism.

As additional information about the vaccines is released, including the clinical trial data, the number of people willing to receive the vaccine should increase. However, if the government is unable to convince enough citizens to take the vaccine, could it actually require vaccination?

Why It Matters: Herd Immunity

The goal of any mass inoculation is to create herd immunity within the population, not just immunity within the individual vaccine recipients. Herd immunity refers to the point at which a threshold number of individuals in a population are immunized from a disease, making further spread of the disease unlikely, even among those not yet immunized. In other words, herd immunity provides protection even to those who are unable to take the vaccine, including the immune-suppressed, those with religious or philosophical objections to vaccinations, and in the case of the COVID-19 vaccines, children.

Experts estimate that at least 70% of the population will need to be vaccinated before herd immunity can be achieved. Could this gap—between the number currently willing to take the vaccination and the 70% needed to reach herd immunity—be closed through a mandatory vaccination program?

Mandatory Vaccinations Under State Law

Mandatory vaccinations have a long history the United States. In 1905, the Supreme Court, in Jacobson v. Commonwealth of Massachusetts, upheld a state statute mandating smallpox vaccinations against a constitutional challenge. 197 U.S. 11 (1905). The defendant in that case, Henning Jacobson, was found guilty of refusing to take the vaccine and fined $5. Id. at 14. Jacobson appealed the conviction, arguing that the statute was unconstitutional under various grounds, but principally, that the law was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care of his own body and health in such way as to him seems best.” Id. at 26.

The Supreme Court rejected Jacobson’s arguments, holding that the inherent authority of the state under its “police power” permitted it to enact laws to “protect the public health and public safety.” Id. at 25. Furthermore, the Court wrote, the liberty under the Constitution is not “absolute… wholly freed from restraint.” Id. at 26.  The Court explained:

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… 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.

Id.

Unquestionably, Jacobson is “old law,” and it can rightfully be criticized for being overly broad in its language, but it remains good law. Page v. Cuomo, 2020 WL 4589329 (Dist. NY, August 11, 2020). Since the Supreme Court’s decision 115 years ago, “courts across the country have nearly uniformly relied upon Jacobson’s framework to analyze emergency public health measure put in place to curb” public health crises. Id. at 8; see also, Hickox v. Christie, 205 F. Supp.3d 579, 591 (D. N.J. 2016) (evaluating constitutional challenge to federal quarantine order asserted by a plaintiff returning to U.S. after treating Ebola patients abroad). Furthermore, all 50 states have legislation requiring vaccines in some form or another, usually mandating that students receive a vaccination (think measles, mumps, rubella) before attending school.

Mandatory Vaccinations Under Federal Law

While Jacobson supports a state’s authority to enact public safety laws, including mandatory vaccinations, the question of whether the federal government could impose similar requirements is more complex and unsettled. Unlike states, the federal government does not have inherent powers, such as the “police power.” Congress is limited to those grants of power found in the Constitution, and the Constitution provides no explicit authority for Congress to enact public health laws. 

Prior to 2012, Congress would likely have relied upon the Commerce Clause of the Constitution, Article 1, Section 8, Clause 3, which gives Congress the power “to regulate commerce with foreign nations, and among the several states” and which had been broadly interpreted to give Congress the authority to regulate both interstate and intrastate commerce. At its broadest, the Commerce Clause permitted regulation of even non-economic activity, as long as the activity had a “substantial economic effect” on interstate commerce. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).   

Recently, however, the conservative Supreme Court has interpreted the Commerce Clause more strictly, striking down laws that would have previously been permitted under the Commerce Clause. In the landmark National Federal of Independent Business v. Sebelius, 567 U.S. 519 (2012), better known as the first Obamacare decision, the Supreme Court held that Congress could not require that individuals purchase health insurance, at least under the Commerce Clause. Id. The Court reasoned that requiring the purchase of health insurance was not the regulation of commercial activity, but rather, the regulation of commercial inactivity, and, accordingly, was not permissible under the Commerce Clause. Id.

The Court, though, did find that Congress had the authority under its taxing power to tax individuals that failed to purchase health insurance pursuant to the Affordable Care Act’s individual mandate, and it is this authority that would likely be relied upon if the federal government were to pursue a mandatory vaccination program. Under the current makeup of the Supreme Court, with Justice Amy Coney Barrett now replacing Justice Ruth Bader Ginsburg, it is unclear whether the Court in 2021 would come to the same conclusion as it did in 2012.

Mandating Vaccines in the Current Political Climate

Of course, none of this is to suggest that the either the federal government or state governments will absolutely institute mandatory vaccinations programs for the COVID-19 vaccines. Although the states almost certainly do, and the federal government may, have the authority to pass these types of public health laws from a legal perspective, they may be politically unviable.

So far, governing authorities have been hesitant to even mandate the wearing of masks for fear of political backlash. It is far more likely that the state and federal governments will exhaust all efforts to persuade citizens to voluntarily take the vaccine before passing laws perceived to be intrusive. However, if the government’s powers of persuasion are not effective in getting the vaccination rates high enough to reach herd immunity levels, more drastic measures could be taken.

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[1] The vaccines of both Pfizer and Moderna require two doses, taken several weeks apart, to be effective.