Dukasaur wrote:https://www.politico.com/news/magazine/2021/09/08/vaccine-mandate-strong-supreme-court-precedent-510280Henning Jacobson, a 50-year-old minister, put his faith in his own liberty. Back in his native Sweden, he had suffered a bad reaction to a vaccine as an infant, struggling for years with an angry rash. Now he was an American citizen, serving as pastor of the Swedish Lutheran Church in Cambridge, Massachusetts. That gave him the full protections of the U.S. Constitution.
So when the Cambridge board of health decided that all adults must be vaccinated for smallpox, Jacobson sought refuge in the Constitution’s promise that no state shall “deprive any person of life, liberty or property without due process of law.”
The year was 1904, and when his politically charged legal challenge to the $5 fine for failing to get vaccinated made its way to the Supreme Court, the justices had a surprise for Rev. Jacobson. One man’s liberty, they declared in a 7-2 ruling handed down the following February, cannot deprive his neighbors of their own liberty — in this case by allowing the spread of disease. Jacobson, they ruled, must abide by the order of the Cambridge board of health or pay the penalty.
“There are manifold restraints to which every person is necessarily subject for the common good,” read the majority opinion. “On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”
Jacobson’s claim was essentially the same as that taken for granted by vaccine skeptics today: That they have the personal liberty under the U.S. Constitution to decide for themselves whether to take the shot. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case, incorporating many of the same arguments about freedom from government interference that are ricocheting around cable TV this summer, and mouthed by politicians. Donald Trump, after recommending at a rally on Aug. 21 that his supporters get vaccinated, quickly added after a smattering of boos: “But you do have your freedoms you have to keep. You have to maintain that.”
The question of whether those freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent.
Very interesting, Duk; GOOD FIND. Thanks for sharing.
I will quote more from the same source. To me, there are a few key matters:
1) This Jacobson case was based on a State Law and mandate and the 10th amendment therefore was a key point the article did NOT address.
2) This is the Supreme Court (SCOTUS) balancing individual rights vs. Safety of the community. In this case, the SCOTUS came down clearly on the side of the safety of the community (7-2 decision).
3) This case serves as legal precedent and there is no other case that carries such legal weight, as far as I know. Of course, until Duk shared this, I was not aware of such legal challenges.
4) One key difference is the length of time (a) smallpox was a DEADLY scourge to society and (b) the smallpox vaccine had been around quite a while, too.
5)
Smallpox was not eradicated until
universal (global) vaccination got it under control to eliminate the threat. I posted this very point earlier.
Yet it remains an intriguing question how today’s justices would view a Jacobson-like challenge to a Covid-19 vaccination mandate. For while the arguments would be largely the same, there are some differences in both the circumstances and attitudes among the justices.
For one thing, the smallpox inoculations of 1904 had been around for far longer than today’s coronavirus vaccines. Smallpox had been a rampant killer for most of recorded history, branding those who survived with lifetime scars. Anti-smallpox vaccines had been in development for well over a century by the time Jacobson lodged his complaint; no less than General George Washington had ordered his troops vaccinated against smallpox. The disease would finally be eradicated in 1980, following a concerted global vaccination campaign.
Would today’s justices believe that the shorter frame of reference for Covid vaccines is reason alone to reject a mandate? If not, the fate of the law would depend on how the court regards the concept of personal liberty in today’s highly polarized political landscape.
Henning Jacobson based his exercise of personal liberty on something tangible, his and his son’s bad experiences with vaccines. Few of today’s plaintiffs would proceed on that basis. Statistics suggest that only a handful of the 80 million Americans who’ve decided to forgo the Covid-19 vaccination have had any bad experiences with vaccines; plainly, they are expressing their distrust of the government’s campaign more as a matter of principle. Could today’s conservative justices, eager to expand First Amendment protections of speech and religion, find a way to turn the prism and view the case more through a free-expression lens than that of a public-health measure? It’s an intriguing possibility.
Yet it remains an intriguing question how today’s justices would view a Jacobson-like challenge to a Covid-19 vaccination mandate. For while the arguments would be largely the same, there are some differences in both the circumstances and attitudes among the justices.
For one thing, the smallpox inoculations of 1904 had been around for far longer than today’s coronavirus vaccines. Smallpox had been a rampant killer for most of recorded history, branding those who survived with lifetime scars. Anti-smallpox vaccines had been in development for well over a century by the time Jacobson lodged his complaint; no less than General George Washington had ordered his troops vaccinated against smallpox. The disease would finally be eradicated in 1980, following a concerted global vaccination campaign.
Would today’s justices believe that the shorter frame of reference for Covid vaccines is reason alone to reject a mandate? If not, the fate of the law would depend on how the court regards the concept of personal liberty in today’s highly polarized political landscape.
Henning Jacobson based his exercise of personal liberty on something tangible, his and his son’s bad experiences with vaccines. Few of today’s plaintiffs would proceed on that basis. Statistics suggest that only a handful of the 80 million Americans who’ve decided to forgo the Covid-19 vaccination have had any bad experiences with vaccines; plainly, they are expressing their distrust of the government’s campaign more as a matter of principle. Could today’s conservative justices, eager to expand First Amendment protections of speech and religion, find a way to turn the prism and view the case more through a free-expression lens than that of a public-health measure? It’s an intriguing possibility.
Many of those conservative justices, along with their liberal colleagues, are Harlan admirers. Jurists across the political spectrum respect the way that Harlan’s heartfelt dissents in cases involving the rights of African Americans and Gilded Age economic excesses helped turn the tide of legal thinking. Chief Justice John Roberts went so far as to place Harlan’s portrait on the walls of the room where justices discuss cases. And now it appears that they may, again, be called upon to assess the wisdom and prescience of his words in yet another case of urgent national importance.
Could the Great Dissenter emerge as the Great Protector of the Covid-19 pandemic? Only time will tell.