Yesterday, yet another federal court ruled that Joe Biden’s vaccine mandate, the one which his Chief of Staff Ron Klain seemed to boast was an end-run around the Constitution, was, in fact, illegal (read Joe Biden’s Illegal Vaccine Mandate Takes Another Beating in Federal Court, but Does It Really Matter?). This loss gives the so-called “vaccine mandate” an unbroken record of losses in federal courts at all levels. The reasoning is universal, at least in my IANAL view. The federal government generally has no authority to issue regulations requiring civilians to receive vaccines.
More of a mixed bag is state vaccine mandates. Some have been upheld, and some have been struck down.
What all of the state vaccine bans have in common are they rely in some part on a Supreme Court decision called Jacobson vs. Massachusetts. In 1902, a Swedish pastor named Henning Jacobson was fined by the city of Cambridge, Massachusetts, for refusal to get a free (does this sound familiar?) smallpox vaccine because Cambridge feared it was facing an outbreak of that disease.
In a 7-2 opinion written by Justice John Marshall Harlan, the court upheld Jacobson’s conviction and the $5 fine it brought with it.
“in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”
In short, Justice Harlan upheld the police power of the state in attempting to protect citizens during a public health crisis. Since then, Jacobson has been used to buttress all sorts of rulings. In 1925, Sarah Prince, a Jehovah’s Witness, was convicted of violating Massachusetts child labor laws by letting her kids sell religious tracts on the sidewalk. In 1995, it was used to uphold the random drug testing of high school students in Oregon because it helped suppress teen drug abuse. Jacobson, though, has really hit its stride since the Wuhan virus came ashore. It has been used to rationalize “stay at home” orders and mandatory facemask wear.
As I said, IANAL, but I question whether regulations imposed by executive fiat are legitimate and thus fall under Jacobson. I also have grave doubts that most of the actions taken to “protect” us from the Wuhan virus would qualify as reasonable. I definitely don’t buy any comparison between Wuhan virus and smallpox. Be that as it may, what Jacobson shows is the danger posed to all of us by any law that purports to protect us from some ill-defined threat.
The best example of what Jacobson portends, if allowed to continue to metastasize, is exhibited in the 1927 case called Buck vs. Bell.
Carrie Buck was born in 1906 in Charlottesville and was raised by foster parents. Carrie’s biological mother, Emma Buck, had been determined by the state to be of low intelligence and was committed to the Virginia State Colony for Epileptics and Feeble-Minded. In 1924, Carrie had a baby out of wedlock and stated that she had been raped by her foster parents’ nephew. However, her foster parents claimed that she had invited the contact due to her promiscuity, and her behavior offered further proof to have her committed to the Colony like her mother.
The superintendent of the Virginia State Colony for Epileptics and Feeble-Minded, Dr. Albert Priddy, believed that there were people who should not have children as the undesirable traits could be passed to a child. He selected Carrie Buck as a test case to make sure the Virginia law was constitutional.
In an 8-1 decision, the Supreme Court ruled that Carrie Buck could be involuntarily sterilized, and so she was. This is from the opinion of Justice Oliver Wendell Holmes, Jr., writing for the majority.
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.
And so she was. She wasn’t alone. She was followed by some 70,000 Americans who were deemed to “sap the strength of the State.” These were the blind, the deaf, the crippled, the chronically indigent, those with low IQs and psychological disorders. And, if you’ve watched the Congress and the U.S. government in operation, it is clear that the law did nothing to staunch the flow of imbeciles.
This opinion is notable for three things. First, like Korematsu vs. U.S., it was a horrible overreach by the state that resulted in the treatment of Americans in a way that remains a stain on our country. Also, like Korematsu, Buck vs. Bell is still the law of the land. Neither have been overruled or otherwise repudiated. Second, Nazi doctors at the various war crimes trials used Buck vs. Bell to justify their experiments designed to sterilize “undesirables.” It didn’t work all that well for them.
The last point is the most important. Usually, Supreme Court decisions rely upon dozens of precedents. Buck vs. Bell depends on precisely one. In the entire decision, the only precedential case mentioned is Jacobson.
When you look at what Jacobson has spawned, it is rather horrifying. It has been nearly universally used to target those on the margins of society. During the last smallpox outbreak in Massachusetts, the one that gave rise to Jacobson, this is how it was described:
A 1904 editorial in the Lancet stated, “What a potent factor in maintaining the prevalence of smallpox is that unemployed and largely unemployable degenerate [person]. . . . The fact that this parasite upon the charity and good nature of the community is in his turn a vehicle for the spread of other parasites, both animal and vegetable, is common knowledge but practically no compulsory steps have been taken to curtail seriously the vagrant’s movements.”18 In November 1901, the Boston Board of Health ordered “virus squads” to vaccinate men living in inexpensive rooming houses.
A reporter for the Boston Globe accompanied a squad one night and described the scene: “Every imaginable threat from civil suits to cold-blooded murder when they got an opportunity to commit it, was made by the writhing, cursing, struggling tramps who were operated upon, and a lot of them had to be held down in their cots, one big policeman sitting on their legs, and another on their heads, while the third held the arms, bared for the doctors.”19 One “fighting tramp,” who “went down in a heap on the floor” from the blow of a policeman’s club, received both vaccination and suturing of his scalp. In hearings on compulsory vaccination, opponents alleged that in Massachusetts, boards of health “in many cases had acted with autocratic power and forcibly assaulted persons to vaccinate them.”20
The men who were clubbed senseless and forcibly vaccinated did not have the resources to mount a court challenge. Sarah Prince was a Jehovah’s Witness. Her case was brought shortly after World War I when Jehovah’s Witnesses were imprisoned for their pacifist beliefs leading them to refuse conscription. In fact, nearly all that denomination’s leadership was arrested under the 1918 Sedition Act. She was another person outside the social mainstream. Carrie Buck was impoverished, uneducated, and mildly retarded, and she came from a family that was very much the same. Have you noticed how the “unvaccinated,” and now the “un-boosted,” are talked about in the media?
If anything has been a constant during the Wuhan pandemic panic, it has been the “rules for thee but not for me” philosophy of our self-appointed elites. Even though NJ Governor Phil Murphy dined out with his family, maskless (Hilarity Ensues as New Jersey’s Mask Meister Murphy Is Caught Ignoring the Rules He Imposed on Others), New Jersey state troopers broke up Jewish funerals because of lack of social distancing.
I will be the first to admit that I don’t know how this drama will play out. What I do know is this. The road to Hell is paved with good intentions, and I think Jacobson is the on-ramp to a superhighway leading down. Once the state has the authority to force you, against your will and without your consent…or, in the case of the current set of vaccines, without even informed consent…to undergo treatment for a disease you do not have, you have ceased to have any autonomy. As I’ve warned before, by giving the government, and I mean any level of government, a “public health exception” to the First Amendment, we have opened the gates to using the same methods to tamp down “handgun violence” or the “obesity epidemic” or boils on the ass.
A final note: No Supreme Court precedent quoted by Nazi doctors to justify their experiments has any business being used for anything.