Jacobson v. Massachusetts: State Police Powers Affirmed by Barbara Loe Fisher from The Vaccine Reaction
U.S. Supreme Court
Jacobson v. Massachusetts: State Police Powers Affirmed
by Barbara Loe Fisher
Published December 18, 2015 | Law, U.S. Supreme Court
Carrie Buck (left). Pointing to the Jacobson vs. Massachusetts decision, [U.S. Supreme Court Justice Oliver Wendall] Holmes declared that the state of Virginia could force Carrie Buck to be sterilized to protect society from mentally retarded people.
In its
1905 precedent setting split decision in the case of Jacobson v. Massachusetts,1 the U.S. Supreme Court, by a 7-2 vote,
ruled that state legislatures could use police powers to force a minority of
dissenting citizens to use smallpox vaccine for what medical doctors and
government officials judge to be the greater good of the majority. Those voting
with the majority were justices John M. Harlan, Henry B.
Brown, William R. Day, Melville Fuller, Oliver W. Holmes,
Jr., Joseph McKenna, Edward D. White. The dissenting votes were cast
by justices David J. Brewer and Rufus W. Peckham.2
Those early 20th century justices based their decision in part
on a false premise argued by lawyers representing public health officials, who
argued that medical doctors could predict ahead of time who will be injured or
die from smallpox vaccination. Doctors have never been able to predict with any
certainty who will be injured and die from vaccination.
In affirming the constitutional right of states to use police powers to enact public health laws, the Supreme Court was also reaffirming the roles of state government versus the federal government in public health law. Anything not defined in the US Constitution as a federal responsibility has traditionally defaulted to the states. Public health was not defined in the Constitution as a federal responsibility so public health laws have always been state laws and this is why vaccination laws vary from state to state.3 4
A Utilitarian Rationale Turned Into Law
It is
important to note that the Supreme Court ruling in Jacobson v Massachusetts at the turn of the 20th century
was clearly based on a utilitarian rationale that a minority of citizens
opposing vaccination should be forced to get vaccinated in service to the
majority.
Utilitarianism was a popular ethical theory in the late 19th and
early 20th century in Britain and the U.S. and was used by
government officials as a mathematical guide to making public policy that
ensured “the greatest happiness for the greatest number of people.”5 6 Today,
utilitarianism has a much more benign and lofty name attached to it: “the
greater good.”
Minorities at Risk When State Employs Militant Utilitarianism
Perhaps
that is because utilitarianism went out of fashion in the mid-20th
century after, beginning in 1933, the Third Reich employed the utilitarian
rationale as an excuse to demonize minorities judged to be a threat to the
health and well-being of the State.7 Enlisting the assistance
of government health officials,8 9 10 11 the
first minority to be considered expendable for the good of the State were
severely handicapped children, the chronically sick and mentally ill, the
“useless eaters” they were called.1213
And when the reasons for why a person was identified as a threat to the health,
economic stability, or security of the State grew longer to include minorities
who were too old or too Jewish or too Catholic or too opinionated or simply
unwilling to believe what those in control of the State said was true… as the
list of those the State branded as persons of interest to be demonized, feared,
tracked, isolated and eliminated grew, so did the collective denial of those
who had yet to be put on that list.14 15
Jacobson v Massachusetts Used to Embrace Eugenics in U.S.
Prophetically,
in 1927, U.S. Supreme Court Justice Oliver Wendall Holmes, Jr. invoked the Jacobson v. Massachusetts “greater good”
utilitarian decision to justify using the heel of the boot of the State to
force the sterilization of a young Virginia woman, Carrie Buck, who doctors and
social workers incorrectly judged to be mentally retarded like they said her
mother was.16 In a chilling statement
endorsing eugenics,17 Holmes revealed the morally corrupt
core of utilitarianism that still props up mandatory vaccination laws in the
U.S.
Pointing to the Jacobson vs.
Massachusetts decision, Holmes declared that the state of Virginia could
force Carrie Buck to be sterilized to protect society from mentally retarded
people. Coldly, Holmes proclaimed, “three generations of imbeciles are enough”
and “The principle that sustains compulsory vaccination is broad enough to
cover cutting the fallopian tubes.”18
The 1905 U.S. Supreme Court majority made fundamental scientific and ethical
errors in their ruling in Jacobson v.
Massachusetts. It is clear that medical doctors cannot predict ahead
of time who will be injured or die from vaccination and that is a scientific
fact.19 20
Utilitarianism Is A Discredited Pseudo-Ethic
Utilitarianism
is a discredited pseudo-ethic that has been used to justify horrific human
rights abuses not only in the Third Reich21 22 but in human scientific
experimentation23 and the inhumane
treatment of prisoners and political dissidents here and in many countries,24 25 26 27
which is why it should never be used as a guide to public policy and law by any
government.
Although we may disagree about the quality and quantity of the scientific
evidence used by doctors and governments to declare vaccines are safe at the
population level, at our peril do we fail to agree that, while the State may
have the power, it does not have the moral authority to dictate that a minority
of individuals born with certain genes and biological susceptibilities give up
their lives without their consent for what the ruling majority has judged to be
the greater good.
Our Lives Are Defined by the Choices We Make
The journey we take in this life is defined by the choices we make. And if we are not free to make those choices, the journey is not our own. And the choices we make that involve risk of harm to our physical body, which houses our mind and spirit, those choices are among the most profound choices we make in this life, which is why we must be free to make them.
Note: This article was
originally published at www.nvic.org as
part of a larger article titled “Vaccination: Defending Your Right to Know and
Freedom to Choose.”
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