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Horowitz: Why Dershowitz is wrong to apply Jacobson decision in support of vaccine passports

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If a government can box out a citizen from accessing all vital goods and services unless he takes an experimental vaccine — now with serious questions about safety and efficacy — is there anything a government cannot do to you? Well, thus far, the courts have relied on a 115-year-old court opinion, which has been implicitly overturned dozens of times, to justify any inhumane and illogical government mandate under the guise of exercising state police powers over public health. Unless we flush this decision — and the even more egregious interpretation of it — out of existence, our government will quite literally be able to take any action against our body.

Supporters of mandatory shutdowns, masking, and now vaccines have justified the legality of their edicts based on the 1905 Jacobson v. Massachusetts case, which upheld a fine against an individual who failed to take the smallpox vaccine, pursuant to the ordinance of the department of health in Cambridge, Massachusetts. Legal analysts like Alan Dershowitz continue to cite it as an iron-clad precedent to support mandatory COVID-19 shots.

However, that opinion is so antithetical to modern case law that it gave rise to the infamous Buck v. Bell decision in 1927, which greenlit forced sterilization.

"We have seen more than once that the public welfare may call upon the best citizens for their lives," wrote Justice Oliver Wendall Holmes for the majority. "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."

Notice how immediately before declaring, "Three generations of imbeciles are enough," Holmes cites Jacobson. Just know that this is the decision being used to allow government to do anything and everything to our bodies without even having to provide evidence of safety, efficacy, and lack of alternatives. Just know that we need not imagine what could be done with such power because the same court, which has obviously overturned this decision with numerous subsequent case law establishing the inviolable right to bodily autonomy, has already pushed forced sterilization.

That Jacobson has been overruled is abundantly clear from numerous cases, and most emphatically driven home in Cruzan v. Director, Missouri Dept. of Health, (1990) when Chief Justice Rehnquist declared in his majority opinion regarding the right to refuse life-saving treatment, "every human being of adult years and sound mind has a right to determine what shall be done with his own body." The following is just a sampling of very established precedent that would be thrown out were we to resurrect Jacobson:

  • Addington v. Texas, (1979) – involuntary commitment to physiocratic hospital must be based on "clear and convincing evidence"
  • O'Connor v. Donaldson, (1975) – non-violent person can't be committed to mental institute
  • Loving v. Virginia, (1967) – right to marry
  • Griswold v. Connecticut, (1965) – right to contraception
  • Roe v. Wade, (1973) – abortion
  • Planned Parenthood of Southeastern Pa. v. Casey, (1992) – abortion
  • Prince v. Massachusetts, (1944) – family relationships
  • Moore v. City of East Cleveland, (1977) – family relationships
  • Lawrence v. Texas, (2003) – right to sodomy
  • Meyer v. Nebraska, (1923) – right to foreign language education
  • Pierce v. Society of Sisters, (1925) – the right not to be coerced to attend public school
  • Wisconsin v. Yoder, (1972) – parental rights in educational freedom
  • Glucksberg v. Washington (1997) – physician-assisted suicide

Resurrecting Jacobson in light of an endless stream of case law creating such strong bodily autonomy rights that it created a right to assisted suicide and abortion is the equivalent of resurrecting Dred Scott, Plessy v. Ferguson, or Korematsu in 2021. However, aside from Jacobson being out of sync with our most foundational modern jurisprudence on bodily autonomy, there are several fundamental distinctions between the COVID mandates and Jacobson that are being ignored.

  • You simply cannot deny that smallpox was much deadlier than COVID. This point is especially relevant given that a federal judge in Indiana applied Jacobson in a lawsuit from college kids, who have infinitesimal risk, being coerced to get a shot that is particularly dangerous to young males.
  • The crux of the Jacobson outcome was a person having to pay a $5 fine (about $150 today). That is quite different from barring someone from school, employment, and vital goods and services. Government has a strong power to tax, but not to coerce. As the Massachusetts Supreme Judicial Court noted (Commonwealth v Pear; Commonwealth v Jacobson, 183 Mass 242, 248 (1903)), "If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5." This dichotomy was the central point in the Supreme Court upholding the individual mandate under Obamacare in NFIB v. Sibelius.
  • In 1905, the smallpox vaccine had been around for a while. In 1796, the British physician Edward Jenner discovered a vaccination for smallpox, and it became widespread throughout the latter part of the 1800s. It wasn't nearly as novel as the spike protein vaccines for COVID-19 today. It also occurred long before we had standard procedures for regulating vaccines in accordance with the doctrine of informed consent.
  • All these mandates were predicated on the fact that the vaccine effectively blocked the virus. Now it has become clear that the vaccine absolutely does not stop infection and transmission. The only debate is whether it provides long-term or just short-term protection from serious illness. But that is a personal choice. Jacobson said the state must show a "real or substantial relation" from their regulation to their stated goal. Based on CDC's own data (ironically, from Massachusetts), this vaccine can no longer achieve a vital state interest of stopping the spread of a virus like it did with smallpox.
  • The Jacobson opinion mentions the "legislature" over a dozen times. For example, the opinion reads, "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." Nearly all of the mandates being imposed now are being done by executive fiat without the input of the people's representatives.

Indeed, both the application of Jacobson to the present situation and the endorsement of the decision itself is scandalous. Will they next say government can enslave us in pursuit of public health and cite Dred Scott in support?

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