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Jacobson v. Massachusetts has become the catchall decision for justifying all kinds of pandemic countermeasures. I had not looked into the matter in detail, as I am not a lawyer (thank God). However, I ran across an article on SSRN from Josh Blackman (one of the writers at The Volokh Conspiracy) that dismantles how a decision to allow a jurisdiction to levy a fine equivalent to a parking ticket for the refusal to receive a vaccination against one of the most deadly diseases known to man (smallpox is a Risk Group 4 select agent, alongside Ebola and its relatives; by comparison, anthrax and the Black Death are merely Risk Group 3) mutated like a virus into allowing all kinds of measures under the rubric of public health.
It is perhaps unsurprising that the most disturbing U.S. Supreme Court decision to remain on the books as good case law plays a role here. Buck v. Bell is the infamous decision that allowed for the state to forcibly perform medical procedures on people without their consent to uphold the good of the gene pool, giving us the infamous line that “three generations of imbeciles are enough.” As if forcing a person to be fixed like a stray dog is not bad enough, there is evidence that Carrie Buck was not even mentally handicapped, nor was her honor student child, and she was likely set up by her lawyer, who was either horrendously incompetent or actually in favor of negative eugenics. You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.
This brings me to the change in interpretation Blackman discusses:
Buck completely retconned Jacobson. The Cambridge Law did not involve forcible vaccination. Remember, the Massachusetts Supreme Judicial Court observed, “[i]f 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.” Jacobson could not be involuntarily jabbed in the arm with a syringe. Rather, the criminal penalty was a modest $5 fine. A 1963 article that critiqued Holmes recognized that Jacobson did not actually sustain “compulsory vaccination.” The Massachusetts law “did not, as in Buck v. Bell, require submission to the order, but subjected to fine or imprisonment anyone who refused to comply.” Being forced to pay a nominal fine did not invade any “fundamental”right. Carrie Buck, by contrast, did not have the option of paying a fine to avoid sterilization. Buck v . Bell radically expanded the scope of Justice Harlan’s modest decision. In time, Holmes’s misreading would become the paradigmatic understanding of Jacobson. The first level of Jacobson’s myth was firmly in place.
Basically, Oliver Wendell Holmes Jr. made the original decision from a fine into involuntary vaccination so that he could justify his decision to allow involuntary medical treatment on inconvenient people.
I personally agree with the general idea of the original Jacobson decision. It is rational that the government can take actions that limit a citizen’s rights to deal with an epidemic. For example, people exposed during the recent Ebola outbreak were quarantined, and they could be arrested if they broke quarantine. There needs to be solid justification and the ability to appeal to courts to determine if the measure is reasonable and not cruel or unusual. The Holmes variant is an entirely different strain, and I agree with Blackman that the Supreme Court needs to eliminate this legal virus from its jurisprudence.Published in