Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

OUR ENLIGHTENED FOUNDERS

In August 1793, yellow fever swept through Philadelphia, our young nation’s capital city. Attorney John Todd fell ill and died. So did his infant son, William. His older son, John Jr., survived, as did his wife, Dolley.

Dolley Todd lost several other relatives to the fever, including both of her in-laws and two of her brothers. According to historian Richard N. Côté, she never recovered from this avalanche of personal tragedies.1 But tragedy sometimes leads to triumph. Dolley’s good friend Aaron Burr introduced the widowed mother to a congressman from Virginia. The congressman was short and slight and spoke so softly that sometimes he was difficult to hear. At forty-three, he was seventeen years her senior. But he was smart and wealthy and accomplished and admired. He was also the primary author of the brand-new Constitution of the United States. James Madison was a good catch. So was Dolley. She went on to become her husband’s closest political confidante and perhaps the most beloved First Lady in history. Today, there is a safe and effective vaccine against yellow fever. In the Eighteenth Century, there was not. The only defense against the disease was to run away from the mosquitos that carried it. And that’s what people did. Still, like the Todds, many suffered and died. It’s a safe bet that, if a yellow fever vaccine had been available in 1793, someone of Dolley Madison’s sophistication and good sense would have made sure that her entire family was protected. She would have supported widespread vaccination. Indeed, that’s precisely what her husband and political partner did twenty years later, when, as president, he signed into law “An Act to Encourage Vaccination.” The federal statute not only encouraged vaccination, it established a National Vaccine Agency and provided free postage for vaccine materials.2 Thomas Jefferson, a close friend of the Madisons, also supported vaccination. Indeed, he provided Lewis and Clark with the recently-invented smallpox vaccine to distribute to Native Americans. He wrote, “Every friend of humanity must look with pleasure on this discovery, by which one evil more is withdrawn from the condition of man. . . . I know of no one discovery in medicine equally valuable.”3 Jefferson’s frenemy, John Adams, agreed.4 A word about smallpox: Like COVID, it was a highlycontagious and frequently-deadly disease that left terrible scars on survivors. But while COVID’s scars are invisible, damaging internal organs from the lungs to the brain, smallpox’s scars were apparent. Many who recovered were left with ravaged, pockmarked skin and, sometimes, blindness. If you’re not familiar with smallpox, count your blessings. If you have the stomach for it, Google a few pictures of smallpox victims. You’ll see them, in agony, covered in festering pustules. They resemble the Stone Men from Game of Thrones. Smallpox was eradicated in 1980, worldwide, through—you guessed it—aggressive vaccination campaigns.5 George Washington contracted smallpox on a trip to Barbados in 1751. He was scarred, something that doesn’t show up in Gilbert Stuart’s famous portraits. No doubt his illness informed his decision, early in the Revolution, to mandate inoculation for the entire Continental Army. He was supported in this effort by Benjamin Rush, a signer of the Declaration of Independence and Surgeon General of the Continental Army.6

A word about “inoculation:” It was a precursor to vaccination. Long practiced in many other parts of the world, inoculation exposed healthy people to small amounts of the smallpox virus. If all went well, the patient would develop a mild case of the disease and acquire lifelong immunity. If all didn’t go well, the patient would, well, suffer horribly and possibly die. But the risk of inoculation was far less than that of infection, a fact documented by the most scientific of our Founders, Benjamin Franklin.7 Franklin had an intense interest in inoculation. He was a longtime supporter of the practice. Yet, when faced with the decision to inoculate his four-year-old son, Francis, Franklin hesitated. The boy was sickly. How would inoculation affect him? Was the risk too high? That question was never answered. Franklin did not inoculate his son. In 1736, Francis contracted smallpox and died. In his autobiography, Franklin lamented his indecision: “I long regretted, and still regret, that I had not given [smallpox] to him by inoculation. This I admit for the sake of parents who omit that operation, under the supposition that they should never forgive themselves if a child died under it; my example showing that the regret may be the same either way, and that, therefore, the safer should be chosen.” 8 Our Founders were men and women of the Enlightenment. They believed in reason. They believed in science.9 Perhaps we should do the same.

1 Côté, Richard N., Strength and Honor: The Life of Dolley Madison, 101 (2005). 2 “Life, Liberty, and the Pursuit of Immunity,” Center for Science and Democracy at the Union of Concerned Scientists, 7 (August 2014). Available at: https://www. ucsusa.org/sites/default/files/attach/2014/11/founding-fathers-vaccines.pdf. Hereinafter “Union of Concerned Scientists.” 3 Id. at 5. 4 Id. 5 Id. at 2. 6 Quoted in Liebowitz, “Smallpox vaccination: an early start of modern medicine in America,” Journal of Community Hospital Internal Medicine Perspectives, 61-63 (January 2017). Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC5463674/. 7 Union of Concerned Scientists. at 4. 8 Id. at 1. 9 Valsania, “The American founders didn’t believe your sacred freedom means you can do whatever you want – not even when it comes to vaccines and your own body,” The Conversation, October 21, 2021, available at: https:// theconversation.com/the-american-founders-didnt-believe-your-sacred-freedommeans-you-can-do-whatever-you-want-not-even-when-it-comes-to-vaccinesand-your-own-body-169924.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.