With all the other restrictions our governments have placed on us during this COVID-19 panic, we should not be surprised that more are coming. It’s quite obvious that once a vaccine is approved by the federal government, many of our states and cities will attempt to force their citizens to be vaccinated. During the debate that is sure to happen, many will point to the Supreme Court case Jacobson v. Massachusetts as proof that governments have the legal authority to enact such laws. So before the vaccinations hit the fan, let’s take a look at this case and the true underlying law.
Background
The 1905 case, Jacobson v. Massachusetts, started in 1902 when Mr. Jacobson refused to comply with a mandatory vaccination order from the Board of Health of Cambridge. Apparently, smallpox was prevalent and spreading in the city of Cambridge, MA. The Board of Health of Cambridge ordered that everyone be vaccinated or revaccinated. Mr. Jacobson refused, and was charged under Revised Laws of that Commonwealth, c. 75, § 137, which provided that:
the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.
Jacobson v. Massachusetts
After being found guilty by the trial court, and failing an appeal to the Supreme Judicial Court of Massachusetts, Mr. Jacobson appealed to the Supreme Court, claiming violations of both the Preamble and the 14th Amendment to the Constitution of the United States.
I found several issues with the process, documented in the opinion. Still, the underlying question is what does it mean to be deprived of liberty?
What is Liberty?
I’ve written before about liberty, but since it’s so important to the understanding of this case, it’s worth a brief summary here. Webster’s 1828 dictionary defines three different levels of liberty.
Liberty: Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.
Webster’s 1828 Dictionary
So in general, liberty is freedom from restraint. Any restraint, of either the body or the mind. Noah Webster goes on to state that, “A man enjoys liberty when no physical force operates to restrain his actions or volitions.”
Natural liberty consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature.
Webster’s 1828 Dictionary
Natural liberty is the state where the only control on your actions are those of natural law. Natural laws are those laws so obvious, so part of the human psyche, that they don’t need to be written down. I like to summarize them as “Don’t hurt people and don’t take their stuff.”
Civil liberty is the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.
Webster’s 1828 Dictionary
Civil liberty is where we have to look when we are discussing this case. Whereas natural liberty is generally a restraint we put on ourselves, civil liberty is an external restraint put on us. For that reason, it’s limited to only that which is necessary and expedient for the safety and interest of society. But what happens if civil laws are created which are not necessary for the safety and experience of society?
A restraint of natural liberty not necessary or expedient for the public, is tyranny or oppression.
Webster’s 1828 Dictionary
The natural question we should ask be asking ourselves is: Who decides what is necessary and expedient for the safety and interest of society? Which leads us to a bad state law, which is, as Noah Webster noted, tyranny.
Bad State Laws
Remember the Revised Laws of the Commonwealth I quoted before?
the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination.
Jacobson v. Massachusetts
The first problem we run into is the fact that the people of Massachusetts, through their representatives is their state legislature, granted the power to the boards of health in every city and town to determine if vaccinations are necessary. There is no requirement for probable cause, due process, or even review of the order of the board. I’m sure it wasn’t the intention of the citizens of Massachusetts, neither was it “sold” to them by their legislators as such, but they handed over their sovereign decision about what to put into their bodies over to their city governments. And they did so without placing any checks and balances on that power.
Why should you be concerned about this Massachusetts law? Because I expect that every state in the union has one of these laws. That’s correct, your right to determine for yourself what is and is not appropriate to put into your body has been handed over to a bunch of bureaucrats. And you have no due process protections. Or do you?
Problems in the Trial Court?
The opinion of the Supreme Court noted that, at trial, Mr. Jacobson made several “offers of proof” that the trial court ruled immaterial. While I recognize the desire not to draw out a trial with the recitation of irrelevant facts, I am always suspicious when a judge prevents a defendant from presenting evidence. There are numerous examples of judges excluding relevant facts because they’re inconvenient for the state or do not comport with the previous opinions of other judges. What the opinion does not give is a clue as to what proofs Mr. Jacobson offered, though I would be very interested in them. Perhaps that’s fodder for another article.
The Preamble
Mr. Jacobson claimed that this law violated his rights protected by both the Preamble and the 14th Amendment of the Constitution of the United States. As the court noted, there is a problem with the first assertion.
The United States does not derive any of its substantive powers from the Preamble of the Constitution. It cannot exert any power to secure the declared objects of the Constitution unless, apart from the Preamble, such power be found in, or can properly be implied from, some express delegation in the instrument.
Jacobson v. Massachusetts
The court is correct in that the Preamble to the Constitution is just an introduction, as in something to state the reason and intent of the law. The question of the 14th Amendment is something else entirely.
The 14th Amendment
The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.
Jacobson v. Massachusetts
Again, the court is correct in that the liberty secured by the Constitution is not absolute. However, it is wrong to state that one person or a minority of persons may not exercise their liberty in contradiction to the majority. The very reason we have a Bill of Rights is to protect the ability of the individual from the control of the majority. The Fourteenth Amendment was created to protect the rights of the individual and the minority from being dominated by the majority. The question is, what are the limits placed on governments to restrict a person’s liberty? The answer is clear, in both the Fifth and the Fourteenth Amendments.
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
That means the only way governments are allowed to limit or deprive you of your liberty is via due process. Due, meaning owed, and process meaning the course of proceedings. This is summarized well by the Free Legal Dictionary:
due process: An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
The Free Legal Dictionary
The question at hand in this case, and in all other cases of vaccine mandates, revolves around the question of due process. Did the legislature of the state of Massachusetts follow due process when they handed unlimited power to force vaccinations to the town and city boards of health? Did they follow a governmental proceeding designed to safeguard the rights of the individual? I say no, for several reasons.
First, by placing the decision about vaccinations in the hands of unelected bureaucrats, without any form of redress, they denied their citizens the fundamental right to question the actions of their government. Article V of the Massachusetts Constitution reads:
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Massachusetts Constitution
They have violated the Massachusetts Constitution by denying their citizens the ability to hold their agents accountable. These laws deny all of us our ability to seek a redress of grievance by placing the decision about vaccination outside of our control.
Second, these laws authorize the assault on innocent citizens not based on any thing they have done, or any probable cause they are a danger to others, but based solely on the opinions and fears of others. This not only violates the constitutions of the several states, but the Fourth Amendment’s protection against unreasonable seizures. (More on reasonableness later.)
Third, since those requiring the vaccinations are subject to the sovereign immunity of the state, they cannot be held accountable for any injury or loss incurred due to the forced vaccination.
Arbitrary Laws
The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety.
Jacobson v. Massachusetts
Before we go, we should talk about the idea of something being reasonable. Something is considered reasonable if it is governed by reason.
A faculty of the mind by which it distinguishes truth from falsehood, and good from evil, and which enables the possessor to deduce inferences from facts or from propositions.
Webster’s 1828 Dictionary
So let’s take a reasoned look at vaccination regulations. The place to start is the actual purpose of delivering the vaccine in the first place.
vaccine: a preparation of killed microorganisms, living attenuated organisms, or living fully virulent organisms that is administered to produce or artificially increase immunity to a particular disease
Merriam-Webster Dictionary
So the purpose of a vaccine is to produce or increase the recipients’ immunity to that disease. Governments who call for mandatory vaccinations do so stating their goal is to stop the spread of the disease.
“Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease…
Jacobson v. Massachusetts
What are these health boards really saying? Notice, they do not provide evidence of the effectiveness of the vaccine in question. They don’t even claim their goal is the safety of the individual. Their goal is to exterminate the disease. While that is a laudable goal, is it reasonable for someone to take a potentially harmful, even lethal, treatment without informed consent? These boards of health are basically saying, “You are too stupid to make this decision for yourself, so we are going to make it for you.” If we do not allow doctors to administer potentially dangerous medications to their patients without analyzing and reviewing the dangers with them first and obtaining their consent, why would we consider it reasonable for a bureaucrat to do so? History has shown that there is a certain number of people who will react badly to any vaccination. Some will even die. Does the state have the authority to tell you that you must take that risk? While the power to establish health regulations is a power of the states, the question remains: Is it reasonable for the state to impose what it believes is the best for the people without their input or any consideration of their individual situations?
And since the purpose of the vaccine is to increase the immunity of the recipient, how does someone not taking the vaccine endanger those who have? Yes, there will be some percentage of those who take the vaccine that could still get the disease, but how is it reasonable for their concerns to outweigh the concerns of those who do not want the vaccine? Since the primary risk is to the one who decides not to be vaccinated, how can the government claim the authority to put their lives in danger against their will to minimize the already smaller risk to those who have taken the vaccine? Are not forced vaccinations the tyranny of the state over those who disagree with it? Is this any different than a king that determines who will risk their lives in the name of his agenda? If you wish your state and the recommendation of some board of health make vaccinations available for free in the name of the public good, I have no problem with it. However, when you claim the authority to endanger the life, health, and wellbeing of others against their will and solely for your benefit, then you have not only deprived them of their liberty, you have crushed the very idea of the unalienable rights to life, liberty, and the pursuit of happiness.
Conclusion
The biggest problem with the courts, and the rest of our governments obsession with stare decisis is the simple fact that courts can get it wrong. Courts are made up of judges, who are all human and humans can make mistakes. This can be seen in cases such as Dredd Scott (slaves are property), Koramatsu (Japanese internment), and even Kelo v. City of New London (eminent domain), to name just a few. By upholding the decisions of people without outside review, we have changed judges into oligarchs. We have rulers in black robes who cannot be questioned except by others in their priesthood. Jacobson v. Massachusetts is just another example.
I do not find it reasonable to endanger the health and life of an unknown percentage of the population for the purpose of protecting others. Just as you do not have the legal or moral authority to force me to engage a criminal in the process of attacking you, you do not have the authority to force me to endanger myself in order to protect you from a virus. If you are concerned about contracting COVID-19, the flu, or any other disease, feel free to protect yourself by taking a vaccine. But you do not have the authority to force me to take a vaccine in order to protect someone else. That is not reasonable, it is not defensible under the United States Constitution, and it is most definitely depriving a person of their liberty, the property of their body, and potentially their life, without due process of law.
Before we go, there is one thing we have to remember: These laws exist because we have allowed our agents to pass them. If you do not want your government to have even the pretense of determining what you will put in your body, then I suggest you get these laws fixed in your own states. We should all take responsibility for our agents, and hold them accountable to their oath of office, including protecting the rights of the individual.
