City from Below

        JACOBSON V MASSACHUSETTS, 197 U.S. 11 (1905)

                    Vaccine Lawfare and its Counter

“You have no right not to be vaccinated, you have no right not to wear a mask, you have no right to open up your business… And if you refuse to be vaccinated, the state has the power to literally take you to a doctor's office and plunge a needle into your arm.”—Alan Dershowitz, Harvard law professor citing, Jacobson v Massachusetts.

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Is Dershowitz correct? Do police powers, specifically as it applies to the Covid "vaccines" currently in development, give the State the right to forcibly and without your consent, plunge a needle into your arm?

 

To answer, we must look to the holding of Jacobson v Massachusetts and the reasoning for that holding, which Dershowitz claims, is the seminal language on point.

 

In Jacobson the issue before the Supreme Court was whether a Massachusetts statute which fined Jacobson $5 for his refusal to submit to a smallpox vaccination was constitutional. Ultimately, the Court upheld the statute since "nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error." The question here is not whether this holding was correct as it specifically applied to Jacobson, but whether Jacobson can be used as precedent by the State to plunge a novel "vaccine" into your arm without consent. 

To determine if in fact the State derives this power based on the language of Jacobson, we must look to the Court's rationale for its decision.  

 

Although this court has refrained from any attempt to define the limits of that power, it has distinctly recognized the authority of a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate to matters completely within its territory and which do not, by their necessary operation, affect the people of other States. According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.  Gibbons v. Ogden, 9 Wheat. 1,  22 U. S. 203

In citing Gibbons, the Court sets forth settled principle that quarantine and health laws are within the authority of a state to enact. Based on Jacobson's restatement of Gibbons, the majority of modern commentators declare Jacobson confers unlimited police power to a state to mandate a novel "vaccine." 

A careful reading of Jacobson however reveals a detailed and substantive explication of the term "reasonable," which the Gibbons Court refrained from defining.  It is out from this term that the Jacobson Court interprets the legal standard and constructs the test which determines the constitutional limits of police power to mandate a vaccine. To ignore this test of reasonableness and simply declare that Jacobson permits a mandate, is akin to lawfare and fails to do justice to the highly nuanced and reasoned Jacobson decision.

 

According to Professor Lawrence O. Gostin*, JD in Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, the Jacobson Court constructed a 4 Part Test to determine  reasonableness, for which each sub-part required analysis and an affirmative answer, in order for a court to uphold a state's police power to mandate a "vaccine."

* Gostin is the Director for the Center for Law and the Public's Health at John Hopkins - A Collaborating Center of the WHO and CDC and author of the Model State Emergency Health Powers Act.

4 Part Test:


1) Necessity

Necessity meant a mandate could not be exercised in “an arbitrary, unreasonable manner” or go “beyond what was reasonably required for the safety of the public.” 
 

The state must act only in the face of a demonstrable health threat. Necessity requires, at a minimum, that the subject of the compulsory intervention pose a threat to the community.
 

 

2) Reasonable means


Although government may act under conditions of necessity, its methods must be reasonably designed to prevent or ameliorate the threat. Jacobson adopted a means/ends test that required a reasonable relationship between the public health intervention and the achievement of a legitimate public health objective. Even though the objective of the legislature may be valid and beneficent, the methods adopted must have a “real or substantial relation” to protection of the public health and cannot be “a plain, palpable invasion of rights.”
 


3) Proportionality


 

Even under conditions of necessity and with reasonable means, a public health regulation is unconstitutional if the human burden imposed is wholly disproportionate to the expected benefit. “[T]he police power of a State,” said Justice Harlan, “may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong . . . and oppression.” Public health authorities have a constitutional responsibility not to overreach in ways that unnecessarily invade personal spheres of autonomy. This suggests a requirement for a reasonable balance between the public good to be achieved and the degree of personal invasion. If the intervention is gratuitously onerous or unfair, it may overstep constitutional boundaries.


 

4) Harm avoidance.


 

Those who pose a risk to the community can be required to submit to compulsory measures for the common good. The control measure itself, however, should not pose a health risk to its subject. Justice Harlan emphasized that Henning Jacobson was a “fit person” for smallpox vaccination, but he asserted that requiring a person to be immunized who would be harmed is “cruel and inhuman in the last degree.” If there had been evidence that the vaccination would seriously impair Jacobson’s health, he may have prevailed in this historic case. Jacobson-era cases reiterate the theme that public health actions must not harm subjects. Notably, courts required safe and habitable environments for persons subject to isolation or quarantine on the grounds that public health powers are designed to promote well-being and not punish the individual. 

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Per Gostin's restatement (of subpart (2) of the test), the Court uses the language “real or substantial relation” to determine if there is a reasonable relationship between means and ends. It is under the rubric of this means/ends test that the Court looks to common belief and knowledge, which Justice Harlan states is fundamental and goes to the heart of the Jacobson decision. 

In Jacobson one of the key factors informing the Court's decision was the concept of common belief. According to the Court, it was commonly believed the smallpox vaccine was safe and effective. Because the common belief was based on a century of use, the Court determined that belief to be reasonable. Though the judges recognized opinions could differ, the Court held legislative reliance on a reasonable common belief should not be overturned, absent a constitutional conflict.

While we do not decide, and cannot decide, that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.' ​(Jacobson v Mass.).

The case of a century old smallpox vaccine can be clearly distinguished from a novel Covid 19 "vaccine", developed in less than a year. There has never been a Covid 19 "vaccine", nor has there ever been a "vaccine" for any coronavirus. If a Covid "vaccine" is deployed in 2021, it means no long term safety trials will have been performed.

While there are exceptions, nearly every medical expert's common belief on the subject is that bringing a Covid vaccine into use too quickly could have grave consequences. If a Covid 19 "vaccine" is developed in less than 4 years, it would be a new world record.

Nevertheless on November 7, 2020 the New York State Bar resolved:

Should the level of immunity be deemed insufficient by expert medical and scientific consensus to check the spread of COVID-19 and reduce morbidity and mortality, a mandate and state action should be considered, as may be warranted, only after the following conditions are met and as a less restrictive and intrusive alternative to isolation, subject to exception for personal medical reasons:

i) evidence of properly conducted and adequate clinical trials;

ii) reasonable efforts to promote public acceptance;

iii) fact-specific assessment of the threat to the public health in various populations and communities; and iv) expert medical and scientific consensus regarding the safety and efficacy of a vaccine and the need for immunization.

In the first part of its resolution in contrast to the language above, the NY Bar correctly re-states Jacobson (https://nysba.org/app/uploads/2020/10/Final-Health-Law-Section-COVID-19-Resolutions_10-8-20-1-1.pdf).

 

"A vaccine must not only be safe and efficacious; it must be publicly perceived as safe and efficacious." In paragraph (ii) above however, the NY Bar's resolution only references, "reasonable efforts to promote public acceptance," which falls far short of Jacobson's requisite standard.  

Jacobson explicitly requires the "People" to accept a vaccine mandate, based on their common belief and knowledge. This requirement, is in addition to acceptance by the medical experts. Promotional effort, absent the People's common belief and knowledge that a vaccine is safe and effective, is non compliant with Jacobson's reasonable means test, which has been the standard for 115 years. Given this, other State Bars looking to New York for precedent, need to proceed carefully, so as not to mistakenly propose an unconstitutional or ambiguous resolution.

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In Jacobson per its 4 Part Test, the Court held a Massachusetts statute which levied a $5 fine (based on Jacobson's specific facts) was appropriate and reasonable. The Court  made it clear however that its decision covered that case only. 

"We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error." (Jacobson v Mass.).

Thus, the Court only addressed the question of whether the State could reasonably fine Jacobson $5 for refusing a smallpox vaccine. 

The Court never addressed the question of non consensual injections of a novel "vaccine", nor the right of States to force an experimental procedure on unwilling participants. 

Therefore Jacobson at this point in time, provides no basis for Dershowitz nor the NY Bar to argue, "the state has the power to literally take you to a doctor's office and plunge a needle into your arm.” 

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How could any attorney or medical expert argue, that a novel "vaccine", never subjected to any long term safety trial (which is standard procedure) be considered reasonably safe for injection into billions of people? To propound that an unprecedented genetic "vaccine" should be mandatory, defies all reason, logic and good practice- and arguably (in the presence of any duty) potentially constitutes criminal negligence (see future section on International Law and Crimes against Humanity).

 

Even Dr. Fauci is on record stating his substantive concerns with a 12-18 month timeline. According to Rick Bright, former head of Biomedical Advanced Research and Development Authority, to have a "vaccine" that quickly would require everything to go perfect; and per Bright, "We've never seen everything go perfectly. I think it's going to take longer than that."

The speed with which researchers and pharmaceutical companies have responded to the coronavirus epidemic has been described as "unprecedented" by Dr Jerome Kim, Director-General of the International Vaccine Institute.

The leading Covid 19 "vaccines" are not traditional vaccines but are based on novel and untested theories (e.g. cytoplasmic protein manipulation by means of nucleic acid injection utilizing mRNA).  These types of Biologics have no track record and have never been deployed previously as a vaccine. No one knows or could know what the long term mutagenic effects will be, given these Next Generation Platforms are commonly, consistently and uniformly described as unprecedented. Taking judicial notice of the definition of the term "unprecedented", there can be no reasonable basis for the sine qua non common belief that novel "vaccines" are safe.  

 

Even if courts accept Jacobson's liberty limiting principle without qualification, there is still no legal basis that permits the State to exert its police power to forcibly inject its citizens with an unprecedented novel "vaccine," since Jacobson only prescribes an economic sanction for refusal to comply. 

 

While it is possible in the future that nucleic acid mRNA injection or biosynthetic DNA manipulation will no longer be experimental and reasonably recognized as safe, we are not now, anywhere proximate to that point. In fact, according to Holly Fernandez Lynch, assistant professor of medical ethics at the University of Pennsylvania, the current Covid 19 Warp Speed timeline is "insanely fast." The widely held common belief that this timeline is unreasonable, proscribes states under Jacobson, from utilizing its police powers to forcibly inject its citizens with a novel unprecedented "vaccine," arising out from an insanely fast process.  

 

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