A crowd gathered on High Street in Wailuku last month. It was a boisterous affair. Kids played in the grass fronting Ka’ahumanu Church. Music blared into the courthouse and offices. Folks cheered on the drivers and passersby. It had all the trappings of a local-style sign waving.

The gathering was to protest Gov. David Ige’s decision to require all state employees to either get vaccinated or submit to regular testing for COVID-19 — the vaccine mandate. Businesses are getting in on it too and have followed the governor’s lead.

Maui’s not alone in seeing these protests. Groups have mushroomed on all of the islands with their signs and outrage against the government’s attempt to stop the spread of COVID-19. Organizations like the Pono Coalition for Informed Consent and the Aloha Freedom Coalition have sprouted up in the islands. They join slightly older groups like the Knights of Aloha, a conservative political action committee formed to support the Trump campaign and other conservative candidates.

Many people question the legality of it all. Can the government really require us to get a vaccine? Is it constitutional?

We’ve been here before. Henning Jacobson asked similar questions more than a century ago. In an 1878 portrait, Jacobson has the puffy hair and thick moustache that would easily pass for a local haole surfer from the 1970s.

Jacobson was born in Sweden. When he was 6 years old, he got vaccinated by government decree and he suffered a bad reaction. He never forgot it. That memory stuck with him as he immigrated to the United States, became a naturalized citizen, married and had five children (two died before they became adults). Jacobson became a pastor and moved to Cambridge, Mass., in the 1890s.

In 1902, Jacobson had a visit from a doctor. Smallpox, a deadly and dangerous disease, broke out in the city. The doctor told Jacobson that residents had to get vaccinated. If he refused, he would have to pay a fine of $5.

Jacobson told the doctor about his bad reaction as a child and refused. He was prosecuted for violating the vaccine law. Jacobson argued he had a constitutional right to refuse. The judge disagreed and ordered him to pay the fine.

Jacobson appealed to the highest court in Massachusetts. He lost. He appealed again.

Jacobson argued to the Supreme Court of the United States that compulsory vaccination was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best”.

Sound familiar?

The Court rejected his argument. Justice John Marshall Harlan wrote for the seven-justice majority in 1905, saying that “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.”

Justice Harlan went on to write that no “minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constitute authorities, acting in good faith for all, under the legislative sanction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution.”

Justice Harlan, by the way, was not your average justice deferring to the government. He’s best known for his profound dissent in Plessy v. Ferguson — the infamous case that upheld racial segregation and the odious doctrine of “separate but equal.” In the end, Jacobson paid the $5.

Now we find ourselves hearing the same arguments raised and rejected by the Swedish pastor from our friends on High Street and on social media. Many are eager to be the next Jacobson, but if precedent has any value, the next Justice Harlan may be waiting in the wings.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.