Kent Heckenlively - Case Against Vaccine Mandates

CHAPTER ONE

Defy the Government and Get a Five Dollar Fine Jacobson v. Massachusetts (1905) and How Vaccine Mandates Got Started

It seems to me the decision by any governmental body as to whether it should pursue a vaccine mandate is properly premised upon the answers to a few simple, but important questions.

The first is how much power a state or nation actually has over a persons bodily integrity, based upon previously existing law.

The second is, when such power has been asserted by the state, what have been the results?

The final question is, despite any prejudices people might have on these questions, can they be expected to possess the intellectual integrity necessary to change their minds when presented with new evidence or facts that they had not previously known?

I hope I have your agreement that this is a reasonable framework for us to begin our discussion.

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Most legal experts, including Harvard law professor Alan Dershowitz, cite the 1905 United States Supreme Court decision in Jacobson v. Massachusetts for the proposition that governments can coerce vaccine compliance, as he did in an exchange with Fox TV host Laura Ingraham on July 29, 2021. From an article by Yahoo News on the exchange:

Fox TV host Laura Ingraham locked horns with lawyer Alan Dershowitz over the prospect of mandated vaccination.

Mr. Dershowitz was arguing the case for compulsory vaccination and made a comparison between COVID-19 and smallpox on The Ingraham Angle.

He said: As far as mandating vaccination, I think the Supreme Court would uphold gradual mandating of vaccination. First, conditioning going to school on getting vaccinated, conditioning getting on airplanes, conditioning getting in crowded buildings.

The former Harvard Law School professor continued, telling Ms. Ingraham that George Washington had mandated vaccination against smallpox for his troops during the Revolutionary War.

As far as setting up the terms of the debate, the article did a fairly good job. Professor Dershowitz was on the side of the government mandating a COVID-19 vaccine and Fox News host Laura Ingraham was against it.

In the next few paragraphs, the article describes Ingraham as an individual who has taken a consistent anti-vax stand throughout the pandemic and disputed the association of COVID-19 with historical smallpox outbreaks. Ingraham noted the COVID-19 vaccines were not even approved, which drew a sharp rebuke from professor Dershowitz:

Neither was the smallpox vaccine in 1905, retorted Mr. Dershowitz, referencing the United States Supreme Court case Jacobson v. Massachusetts about smallpox vaccines, in which the court upheld the authority of states to enforce compulsory vaccination laws.

He went on: I think Covid is worse than smallpox in many ways. It may not kill as many people but we dont know what the long-term impact is.

Its killed 300 million people worldwide, said Ms. Ingraham, meaning smallpox.

Dershowitz continued his argument, asserting his right to board an airplane without the fear that somebody might infect him with the virus. At this assertion, Ingraham started laughing and replied:

Professor, have you not been listening? she asked. I may not have gone to Harvard Law School, but I did hear the president today talk about how if youre vaccinated you still can spread the virus. The data out of Israel, the data out of the UK, theyre freaking out about this.

Itll be spread much less seriously, replied Mr. Dershowitz.

You cant deprive people of their constitutional rights on the basis of a vaccine that still allows the spread of the virus. Okay, said Ms. Ingraham, before wrapping up the segment.

For the vast majority of the public, thats how the debate is framed, and how each side argues their position. Ingraham argues that COVID-19 is not smallpox, while Dershowitz replies that he believes COVID-19 will be worse than smallpox. Dershowitz asserts the right to board an airplane without the fear of contracting the virus. Ingraham notes the most recent data that the vaccine is NOT effective at stopping the spread of the virus. Dershowitz counters by claiming that the virus spread by vaccinated individuals will be much less severe than the virus spread by unvaccinated individuals.

I think any fair-minded person would agree that when the debate is framed in this manner, there are strong arguments on both sides.

However, as I read the initial case of Jacobson v. Massachusetts , as well as commentary on the case, I couldnt help but believe that both Ingraham and Dershowitz have misinterpreted the original case which allegedly gave the government such draconian power.

Let us return to the America of 1905, a country which at that time denied women the right to vote and upheld racial and religious discrimination, and determine, if we can, what the Supreme Court believed to be the proper balance between the power of the state and the right of an individual to make their own health decisions.

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If one were to simply read the opinion in Jacobson v. Massachusetts , it would seem to support the position of Mr. Dershowitz and even contain a few surprises to modern day readers. For example, in the syllabus of the opinion (a summary of the main points often provided at this time), it notes specifically that the preamble to the US Constitution has no place in American law: