By John Jones, JD, PhD, Vaxxter contributor (Part 1 here)
Mandatory Vaccination: More about Jacobson and the Law
As a former professor of constitutional law, I’ve read nearly all the case law on vaccination policies and practices in the United States. And also, as a person who has analyzed the history and science of vaccines from the 18th century to the present, I insist that Dershowitz (2020), Matthews (2020), and all the other vaccine zealots are completely wrong. As noted above from Jacobson, there is no legal opinion that supports the idea that the government can compel injections, and certainly, nothing in the text of the U.S. Constitution addresses the idea.
Before I explain in more detail about the holding of Jacobson, let me recount the tangible result of the case:
Mr. Henning Jacobson never received vaccination or jail time.
After his final appeal rejection by the U.S. Supreme Court, there was no outbreak at the time and it had been three years since health officials in Boston had declared a smallpox epidemic in 1902, Jacobson paid a one-time fine of $5. This was a sizable sum for the day; it was roughly 50% of the average weekly income of a working-class laborer. See Willrich (2011), chapter 8.
Let that sink in: During an era of a supposedly highly contagious rate by a deadly disease, despite an order from the local health board for mandatory vaccination, people could just pay a fine and go about their business. No lockdown, no quarantine.
There is No Forcing
Even though the ruling was against him, the U.S. Supreme Court did not rule that Jacobson had no other option but to receive the shot. Nor did the court rule that Jacobson could indefinitely become a detainee.
I have edited and parsed the exact text of the holding in Jacobson as follows:
The highest court of Massachusetts, not having held that the compulsory vaccination law … establishes the absolute rule, that an adult must be vaccinated, even if: (i) he is [unfit] at the time; or (ii) [the] vaccination would seriously injure his health or cause his death, this court holds that:
as to an adult, residing in the community, and a fit subject of vaccination, the statute [does not violate] the Fourteenth Amendment. Jacobson at 12.
Laws Aren’t For All
Near the end of his opinion, Harlan added a significant caveat. He explains: (A) vaccination laws aren’t for universal application to all people regardless of circumstance; and (B) Courts may issue injunctions to prevent harm or injury that could be caused by a vaccine. As demonstrated by his declarations, Prof. Dershowitz is either woefully ignorant of the full opinion or cannot comprehend the breadth of the following:
It is easy, for instance, to suppose the case of an adult [for whom] vaccination in a particular condition of his health or body, would be cruel and inhuman … We are not to be understood as holding that the statute was intended to be applied to such a case, or … that the judiciary [could not] interfere and protect the health and life of the individual concerned. (Jacobson at 38-39).
I think that we can best paraphrase the rule from Jacobson like this:
A local jurisdiction may impose a fine upon any fit adult, who refuses a free vaccine, administered by the government, when there is an epidemic, unless, the person can show, by a preponderance of the evidence, that they are likely to be harmed by the shot.
Jacobson Had Been Vaccinated. But So What?
As a factual matter, both Jacobson and his son had been vaccinated prior to March 1897. I will repeat that. The Jacobson case was not about an anti-vaxxer who refused … because of … uh, reasons. Rather, as applied to Jacobson and his son, the criminal law demanded that these two, who had previously been injected and suffered vaccine injuries, get re-vaccinated. (And there was no Vaccine Court. As stated by his lawyers: “If injured, the person vaccinated is damaged without compensation.” (Jacobson, 197 U.S. at 17).
The application of this law was arbitrary. Jacobson was not allowed to offer a defense (Jacobson, 197 U.S. at 17). The Board of Health had no requirement to show any evidence that these men were at risk of contracting smallpox or were contagious or could harm others. Here is what Jacobson faced:
[The] requirement of the board of health of Cambridge, made on February 27, 1902, [ordered] that all the inhabitants of the city, who had not been successfully [sic] vaccinated since March 1, 1897, be vaccinated or revaccinated. (Jacobson at 12-13.)
I want to focus in on two concepts here. Note that the local order called for revaccination; and invoked the idea of successful vaccination.
It must be admitted that smallpox has occurred after the most perfect vaccination. The number of cases [however] is not greater than that of smallpox after smallpox. Edward Jenner 1811, in Baron (1838: 245).
Revaccination Served No Purpose
We know that in 1902, given the scientific knowledge at the time, the order from the Cambridge board of health that established the five-year window for exemption from re-vaccination was arbitrary.
- No one even knew what caused smallpox.
- No one had seen or defined the concept of antibodies.
- There were no electron microscopes.
- No one had any means to determine if previously vaccinated persons were immune to future exposure to smallpox.
Jenner saw with his own eyes that even a natural smallpox infection was no guarantee of immunity from future smallpox illness. Speaking about a patient of his, Jenner said, “Lady of Mr. Gwinnett, had the small-pox five times” (Baron 1838: 265).
Beyond this, there was no quality control on the production of smallpox vaccines. There were no health department officials who could point to the efficacy of vaccination. On the contrary, large data sets show that mass vaccination had no association with lower death rates or significant drops in rates of smallpox infection. See White (1885), The Story of a Great Delusion.
Smallpox Vaccination Had Huge Opposition
By the start of the 20th century, mass smallpox vaccination was has a large opposition. As detailed by the lawyers for Jacobson, as of 1905, 34 of the 45 U.S. states had no compulsory vaccination laws. Some states, such as Wisconsin, had specifically repealed vaccine requirements. Jacobson at 15, 16. Countries of England, Holland, Switzerland, and others had abolished mandatory vaccination laws. Jacobson at 16.
And what was a virus circa 1902? Back then, the word virus was a collective noun the defined the result of a disease (e.g., pus), not its cause. If pustules were present in the body, the body was full with virus which was a good thing at the time. The logic of the time held that if a person had expelled virus, the disease had run its course and the infected person was no longer contagious. (See Jenner 1798, paragraph 73; and Jenner 1799, paragraphs 26, 49, 50, 95).
Without any concept of antibodies, what did a Board of Health in 1902 call a successful vaccination?
Edward Jenner defined successful vaccination as: fever, malaise, and blisters filled with pus. Sometimes, despite this “success” the child (or adult) could die within a few days of the vaccination. Sometimes they died within a few months due to tuberculosis, then called phthisis, scrofula, or consumption. See Life of Jenner volume II, page 252. About one percent of the time, the successfully vaccinated person would later fall ill with smallpox or even cowpox. See Jenner (1798), paragraph 26; and Baron (1838: 245).
In a letter of 1804, Jenner expressed his idea about successful vaccination and whether it could confer immunity:
I have said fifty times before, ‘If the vaccine pustule goes through its stages correctly, the patient is secure from smallpox; if not, security cannot be [assured].’ … ‘When a deviation arises in the character of the vaccine pustule … common prudence [calls for] re-inoculation.’ (Baron 1838: 343).
Hey Harvard Law faculty, Will You Rebuke Dershowitz for His Ignorance of the Law?
Putting together the information at the time about vaccine-science and vaccination practices in the Jacobson-era, an order from any local Board of Health could demand that a person receive an injection and fall ill. If the pustules were not to the liking of some doctor, the person could receive the process again and again. The mass vaccinations could even spread more illness. But according to Dershowitz, none of that would be legal cause to prevent tragedy.
The scientific evidence of the harm of vaccines is now well-documented. And unlike the rules of 1900, present-day American jurisprudence allows a legal defense whereby one could offer testimony or expert opinion to show how a vaccine – especially an experimental vaccine – is unsafe, or not proven to confer health benefits.
(And didn’t Harlan imply that one could offer a defense? Why has that part of the opinion been ignored by today’s legal scholars?)
No American court has ever given a ruling that vaccination against your will is possible. Plenty of cases have upheld the “no vaccination, no school” rule, but those cases never include orders to arrest parents or inject their kids by force.
Nonetheless, it is quite possible that in the foreseeable future, the Pharma shills (aka American media) will tell us that we must receive the COVID19 vaccine, and everyone – doctors, politicians, patients – will ignore the fact that there is a long-standing legal precedent that we cannot be ordered to get the shot against our will.
Stay aware – tell your friends and family to resist.
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John C. Jones received his law degree (2001) and his Ph.D. is in political science (2003) from the University of Iowa. He has over 15 years of research and writing (both academic and journalistic) in fields of public policy and law, criminal and Constitutional law, and philosophy of science and medicine. His additional areas of expertise and specialized knowledge include applied statistics, etymology, political communications/public relations, litigation and court procedure. He has a particular interest in the science and history of vaccines.