By John Jones, JD, PhD, Vaxxter contributor
A Constitutional Lawyer Said What?
“If you refuse to be vaccinated, the state has the power to literally [sic] take you to a doctor’s office, and plunge a needle into your arm.”
To be fair, later in the interview, Dershowitz articulates what justice would look like under a mandatory vaccination regime. He opined, “They should give you an alternative, live in your home … but never, ever, leave your home …”
Dershowitz declares that the state of American law on bodily integrity rest on Supreme Court precedent, namely Jacobson v. Massachusetts, 197 U.S. 11 (1905). But he also claimed, without any specific citations, that there are
“In cases, after cases, after cases, that the public health permits reasonable actions to prevent the spread of communicable diseases.”
There is just one small problem with his analysis. Dershowitz is completely wrong.
Background and Context
We should have expected this. With the COVID19 Plandemic, as Del Bigtree and others (2020) have shown, we have been bombarded for months with talk about the coming vaccine. But this mantra is not new. For years, Dr. Sherri Tenpenny warned us about the plan to institute mandatory vaccine laws – not just for children, but for adults. The program is defined in the CDC’s Healthy People 2020.
Vaccine Truth: Healthy People are Injected People?
Launched in 2010, Healthy People 2020 (HP2020) has laudable and unassailable goals including:
- Attain high-quality, longer lives free of preventable disease
- Improve the health of all [social] groups
- Promote quality of life
So what is the catch? It is the mechanism of how this is achieved: Increased immunization rates.
Of course, the blueprints offered in HP2020 only push so-called immunizations – shots of a liquid filled with formaldehyde, cells from monkey kidneys and aborted humans, traces of glyphosate, large amounts of aluminum, etc to help us. It is all announced in the name of reducing so-called vaccine-preventable [sic], infectious diseases. There is only one small problem, the data refutes the scientism of vaccinology.
For example, objective IID-12 reads: “Increase the percentage of children and adults who are vaccinated annually against seasonal influenza.” But the effect of increasing flu shots results in higher levels of production of so-called viruses. And other than when flu shots are not killing the elderly, or causing paralysis, they provide no benefit.
The other listed objectives are standard dogma about the need to reduce rates of hepatitis (in infants and toddlers) and reducing rates of mumps, and measles, and meningitis, and pneumonia – and the need to continue a program to administer multiple doses … constant re-vaccination.
We know that some of these ailments are common in teens and college-age students who are getting re-vaccinated. And we know most of these infections are not contagious due to casual contact, but from transfers of bodily fluids – so most of us are not at risk.
Vaccinology when Embedded in Law
So let us take a step back and consider the assumptions in modern vaccinology – those which Dershowitz holds and is ready to argue before the U.S. Supreme Court.
Are all infections diseases? Are viruses exogenous contagions or are they endogenous exosomes that are essential for life? (Andrew Kaufman, MD has an answer).
Here is question for the authors of HP2020: How much injected aluminum does it take to lead to Alzheimer’s, Parkinson’s, dementia, and autism? (Prof. Christopher Exley (2018) might have an answer that the CDC, HHS, and big pharma have failed to discover).
Despite the lack of double-blind, true placebo trials with vaccines, despite the fact that all vaccines are experiments … Dershowitz is sure that the law of the U.S. holds that anyone and everyone can face imprisonment for life if they refuse to submit to a vaccine. And he is secure in his convictions as derived from a logic of a vaccine-science, articulated by a single man (Justice Harlan) in 1905.
Mainstream Legal Opinion and Misreading Jacobson
Professor Dershowitz is not alone in his mistaken belief or policy preference. Even the editors at World Net Daily want you to resign yourself – like cattle marching through the slaughter-house – to the notion that one day, you and your children will be poisoned in the name of freedom, science, and goodness.
A quick search online finds three prominent articles, all citing Jacobson, all insisting that the only conclusion we can see is that the U.S. Constitution holds that the State (just group of men and women – often coercing us through violence) has every right to force you to be injected.
Articles #1 from 2006
A medical doctor, and then law student, Sarah Fujiwara, writing in the AMA Journal of Ethics [sic], described a hypothetical circumstance where SARS cases are found in Canada, centered on a college student (Joseph), who has not been exposed. Dr. Fujiwara asks, “if the State of Illinois mandates a new experimental SARS vaccine, can Joseph refuse?” Referencing case law and invoking abstract notions about her hypothetical unexposed Joseph somehow being both contagious and a risk to others, Fujiwara concludes:
- “Real liberty for all cannot exist if each individual is allowed to act without regard to the injury that his or her actions might cause others; liberty is constrained by law”;
- “It is immaterial whether … the vaccine is actually effective, so long as it is the belief of state authorities that the mandatory vaccine will promote common welfare … (drawing on the language of Jacobson, 197 at 35);
- “The only exception to a mandatory vaccination is an offer of apparent or reasonably certain proof, to the state board of health [sic], that the vaccination would seriously impair health or probably cause death” (she offers Jacobson at 38, but there is no language in the opinion that describes exceptions or appeals to the Board of Health);
- “Consequently, our student, Joseph, does not have a valid argument against the mandatory vaccination.”
It is most apparent, from her brief review of Jacobson, that Dr. Fujiwara never read the case, does not know the pertinent facts, and or has no idea about the evolution of legal doctrines related to Constitutional law and due process since 1905.
Article #2 from 2019
A lawyer for the Congressional Research Service, Wen Shen, presented a memo titled: An Overview of State and Federal Authority to Impose Vaccination Requirements. Citing Jacobson, Shen finds that States have absolute power to require any and all vaccines. Shen (2019) claims that:
In 1905, the Supreme Court in Jacobson v. Commonwealth of Massachusetts upheld a state law that gave municipal boards of health the authority to require [sic] the vaccination, of persons over the age of 21, against smallpox.
Shen (2019) mischaracterizes the legal issues in the case. Henning Jacobson brought a due process challenge to a criminal law. The law that grants him no opportunity to raise a defense. Jacobson, 197 U.S. at 17.
The case did not center on a forced injection – there was no force and there would be no injections. The challenge centered on the propriety and legality of imposing criminal penalties for those who refuse vaccination and play a form of Russian Roulette.
In regards to the ruling of both the Supreme Judicial Court of Massachusetts and the U.S. Supreme Court, each upheld as valid a criminal law which expresses exemptions for unfit children. But there are no exemptions for unfit adults. Jacobson, 197 U.S. at 17.
Children were exempted from the fine by showing a doctor’s note that documented that they were unfit candidates for vaccination. Parents of exempted children were not liable for fines. [See R. L. c. 75, § 139 (1902)].
As for adults like Jacobson, the public health rule read like this: Get a shot, LEST you receive a $5 fine or remain imprisoned until the fine is paid. See Jacobson at 14.
Fine or Vaccination
Please note, writing the opinion for the U.S. Supreme Court, Justice Harlan claims that the Supreme Judicial Court of Massachusetts ruling that if Jacobson refuses to pay a fine or refuses vaccination, that he can be imprisoned indefinitely. However, no statutory reference is cited to support the notion that sanctions included imprisonment. Still, at that time, judges were permitted to issue incarceration orders against defendants who refused to pay fines. See, for example, Chapter 215 from the Public Statutes of Massachusetts of 1881.
All this aside, at a time when no laws could mandate quarantine of a healthy person, the particular text of the opinion from the Massachusetts high court omits any discussion of imprisonment (or even quarantine or home detention). See Commonwealth vs. Pear 183 Mass. 242 (1903). In siding against Jacobson, and explaining the extent of the penalties, Massachusetts Chief Justice Knowlton concluded:
If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5. Commonwealth vs. Pear, 83 Mass. 242 at 248 (1903).
When the Supreme Judicial Court held that Jacobson could only receive a fine, and the U.S. Supreme Court upheld that ruling, why would Wen Shen announce that the courts have held that vaccination can be forced?
Because the current talk about mass vaccination is really a discussion about the drive for a federally-mandated national program. Shen (2019) offers some discussion about federal versus state authority. Under the U.S. Constitution, matters of public health (general police power) are up to state jurisdiction. At present, without an Amendment, neither Congress nor the President can impose a mandatory vaccine scheme for the nation. Furthermore, any federal law would be limited by the Religious Freedom Restoration Act (RFRA).
Shen (2019) shares:
Under RFRA, the federal government is prohibited from substantially burdening a person’s sincere exercise of religion, unless the government demonstrates [that] the application of the burden to the person represents the least restrictive means of advancing a compelling government interest.
But we know that the least restrictive means for anything is never to inject a person with an experimental and harmful substance called a vaccine. Furthermore, under the contagious germ theory, people who are neither carriers nor contagious pose no risk of harm to others. Hence, even confinement would not be justified.
Article #3 from 2020
This article is from The Hill. Writer Merrill Matthews addresses the specter of a COVID-19 vaccine and laws that would compel us to receive a shot.
Throughout his puff-piece, which ignores the data and serves as little more than native advertising for various pharmaceutical companies, Matthews advocates for flu shots. He also promotes the false concept of vaccine-induced herd immunity.
Matthews first assures us that he is a willing cult member. He writes, “When a COVID-19 vaccine becomes available, I will be one of the first in line.” Then he opines on the legal question:
If the government [sic] determines that vaccinations are essential to stemming the spread of the disease [sic] … could it mandate vaccination compliance? Apparently, it can — and it might.
In a twisted and misreading of Shen (2019), Matthews (2020) insists that Congress … has some authority over public health matters, including regulation of vaccination.
Of course, Congress can regulate vaccines – see the National Childhood Vaccine Injury Act. And Congress mandates injections for military personnel. But the Constitution grants Congress no power to create laws that would authorize our imprisonment and compel the population to submit to forced injections.
In Part 2 of this article, we will drill down into the Jacobson and what the law really said.
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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.