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

2021 Sep 11, 1:16pm   290 views  9 comments

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DANIEL HOROWITZ August 02, 2021

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.

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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?

Comments 1 - 9 of 9   

1   AmericanKulak   2021 Sep 11, 1:19pm  

Thank you for this, Patrick.

Wendell Holmes is exactly that sort from the strain I am speaking of when I say "The Elect, who gave up on God, but whom serve Science and what was once called 'Hygiene' instead."
2   cisTits   2021 Sep 11, 3:22pm  

SCOTUS doesn't give a shit. Especially Roberts.
3   Ceffer   2021 Sep 11, 5:05pm  

There's a difference between a REAL pandemic and this manufactured mess of putrid, murderous politics. Plandemic was chosen because it exploits the porousness of our fear and exigencies against disease overriding rights, not because there was any real threat.

What we need it to find a better way to PROVE that a pandemic is real before proceeding with counter measures rather than allowing assertion fallacy and promotional fiat to provide the gateway to tyranny.
4   Patrick   2021 Sep 11, 5:38pm  

It was a hole in the system.

A flaw which Fauci and the rest of the mafia could exploit.

And they always look for every possible opportunity to exploit holes in the system.

All countries must from now on specifically prohibit "public health" powers from violating the Constitutional rights of their people.
5   AmericanKulak   2021 Sep 11, 6:47pm  

Patrick says
And they always look for every possible opportunity to exploit holes in the system.

That's how we got here. Loopholes and Twists. They sued over everything until something stuck and made a little gap. Then they used that little gap to widen and widen their bullshit.

That's how the gap of Roe v. Wade was used to Decriminalize Sodomy which was further enlarged to Recognizing Same Sex Marriage ... penumbras of privacy.

Or how the simple fashion of substituting the word "Gender" where "Sex" was once used... was utilized by Academia increasingly define Gender as Self-Constructed... until law courts accepted Academia's new definition. That's how Male self-nominated Females ended up in the Girl's Bathroom.
6   GNL   2021 Sep 11, 7:46pm  

How in the hell could gender and sex mean different things?
7   AmericanKulak   2021 Sep 11, 8:00pm  

WineHorror1 says
How in the hell could gender and sex mean different things?

When, for mostly reasons of fad/fashion, gender replaced "Sex" on forms and in language generally starting in the early 20th, it was understood at just that, being synonymous with "Sex". When various laws were written in the 60s and 70s around Gender Equality, it was the common understanding that Gender=Sex.

It started for the same reason as "White Meat" (Breast Meat) and "Dark Meat" (Thigh Meat) - a substitute to avoid being seen as salacious or rude, as the word Sex was increasing to refer for "Intercourse" or "Copulation", around the late Victorian Era.

However, Academia and esp. Psychologists began redefining Gender as an internal mental state of self-perception and presentation starting in the late 50s with Johnson and Masters, and Dr. Money, and gathering steam in the 80s. Eventually this perversion of Gender as a mental state became the norm in Academia and Law Schools in the 2000s and Courts then "Retrofitted" the CURRENT definition of Gender back to laws written when Gender was simply the updated way of saying "Sex"

This is why we need "Originalism" - what did the lawmakers think they were doing, and what was their intent THEN --- NOT what the law means according to what the words mean TODAY.

The counter-argument is that "Speedy" means different things in the 18th vs. the 21st, but that is easily resolved in that the lawmakers wanted to prevent tyrants from delaying trials on technicalities and excuse, so the government wouldn't force the accused to languish in criminal proceedings, possibly while in jail, as a tyrannical strongarming tactic - or, exactly what the DOJ is doing right now to the 1/6 peaceful protesters.
9   Ceffer   2021 Oct 12, 2:39pm  

DirtyDishowitz? You mean the same guy who claimed he had a massage from a fat Russian masseuse on Epstein Island with his underwear on, and pled him down on charges using fronting for intelligence agency intimidations.?

Yes, the heart and soul of credibility who just wants his grand bamboozle back to stay in the public eye.

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