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

        Constitutional Standard for Vaccine Mandates

“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.

---------------------------

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 its reasoning, which Dershowitz claims, is the seminal language on point.

 

CONSTITUTIONAL STANDARD FOR A VACCINE MANDATE

 

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 an experimental  "vaccine" into your arm without consent. 

To determine if in fact the State commands 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 upon a state to mandate a novel "vaccine." 

A careful reading of Jacobson however reveals the detailed and substantive approach the Court took to determine the meaning of the term "reasonable," in the context of  a vaccine mandate, which the Gibbons Court refrained from defining.  In Jacobson, the Court explicitly provides the legal standard that determine reasonableness and thus the constitutional limit of police power to mandate a vaccine. Legal experts that ignore these express standards for reasonableness and simply declare Jacobson permits state mandated vaccination, are engaged in lawfare. 

 

According to Professor Lawrence O. Gostin*, JD in Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, the Jacobson Court relied upon a 4 part standard to determine  the reasonableness of a court upholding the 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.

The 4 Part Standard (per Gostin) that Determines the Reasonableness of a Vaccine Mandate 


1) Necessity

Necessity means a mandate cannot be exercised in “an arbitrary, unreasonable manner” or go “beyond what is reasonably required for the safety of the public.” The state must act only in the face of a demonstrable health threat. Necessity requires, at 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 requires 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. The Jacobson Court in its holding with respect to harm avoidance uses the term sensible construction.

-------------------------------------------------------------------------------------------------------

DETERMINANTS OF THE COURT'S CONTEXTUAL MEANING FOR "REASONABLE"

With respect to (4) Harm Avoidance,  Henning Jacobson only raised the issue of harm in the context of past vaccination, but did not offer any evidence he would be harmed by the current vaccine, thus the Court did not consider the factor of harm avoidance relevant to Jacobson. 

"...defendant refused to submit to vaccination for the reason that he had, "when a child," been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others...

It is entirely consistent with his offer of proof that, after reaching full age he had become, so far as medical skill could discover, and when informed of the regulation of the Board of Health was, a fit subject of vaccination, and that the vaccine matter to be used in his case was such as any medical practitioner of good standing would regard as proper to be used." (Jacobson).

 

The Court did state however that if Jacobson had been able to show he would have been harmed by the current smallpox vaccine, the Court would have found the statute unenforceable against Jacobson. 

"Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe — perhaps to repeat a thought already sufficiently expressed, namely — that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, 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...

It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health  or body, would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. "All laws," this court has said, "should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of that character." (Jacobson).

Even modern day pro-vaxxers concede, if an individual can demonstrate a likelihood of harm from a vaccine, sensible construction allows for an exemption. 

With respect to Gostin's restatement of Jacobson's remaining 3 standards, each references reasonableness. Gostin however provides little guidance on how those standards should be applied in the context of mandating an experimental vaccine.  To that task we now turn.

At the outset, it should be noted that other than the element of harm avoidance, which looks to the health status of each intended vaccine recipient, the common denominator between necessity, reasonable means and proportionality, is the common knowledge and belief of the people.  

 

Necessity:

"It is to be observed that when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge and the disease was increasing. If such was  the situation — and nothing is asserted or appears in the record to the contrary — if we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety." (Jacobson).

Here the Court determines necessity based on the common knowledge of civilized people as to the methods most usually employed to eradicate smallpox.

(2) Reasonable Means

 

Under this Part, Gostin references a means-end test which parallels the Court's  use of “real or substantial relation,” to determine if there is a reasonable relationship between the public health intervention and the achievement of a legitimate public health objective.  It is under the rubric of this “real or substantial relation” standard that the Court looks to common belief which Justice Harlan holds as foundational.

 

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).

 

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.

"In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact of not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government." (Jacobson).

 

(3) Proportionality

 

Per Gostin, the Court in Jacobson would find a public health regulation unconstitutional if the human burden imposed is wholly disproportionate to the expected benefit. This is borne out by the language of the Court employing a balance test weighing risks against benefits. 

"Assuming that medical experts could have been found who would have testified in support of these propositions, and that it had become the duty of the judge, in accordance with the law as stated in Commonwealth v. Anthes, 5 Gray, 185, to instruct the jury as to whether or not the statute is constitutional, he would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute. He would have considered this testimony of experts in connection with the facts that for nearly a century most of the members of the medical profession  have regarded vaccination, repeated after intervals, as a preventive of smallpox; that while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity." (Jacobson).

In Jacobson, the Court addressed the question of whether the State could reasonably fine Jacobson $5 for refusing a smallpox vaccine and determined on balance a $5 fine was reasonable and therefore proportionate. 

In weighing risks and benefits, the Court's determinant was the general unanimity of action of  legislatures and courts, as well as the long standing opinions of the medical profession and the people generally.

Conclusion

While the Court held a $5 fine was reasonable for Henning Jacobson's refusal of a smallpox vaccine, Jacobson never applied its 4 part standard to a non consensual injection of an experimental "vaccine."  For this reason, in this site's section - Common Belief of the People, The Foundation of Jacobson v Massachusetts, this 4 part standard shall be applied to determine the reasonableness of forcibly mandating a novel genetic "vaccine."

___________________________________________________________________

City from Below
  • Grey Facebook Icon
  • Grey Twitter Icon
  • Grey LinkedIn Icon