QOTD: Three Generations of Retcons is Enough

 

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.

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  1. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    Maybe John Roberts could figure out a way to turn it into a tax situation.

    • #1
  2. Stad Coolidge
    Stad
    @Stad

    OmegaPaladin: You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.

    Like, “You have to be nuts to support Trump.”  Here comes the lobotomy . . .

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  3. Jager Coolidge
    Jager
    @Jager

    DonG (CAGW is a hoax) (View Comment):

    Maybe John Roberts could figure out a way to turn it into a tax situation.

    The original case, Jacobson v. Massachusetts, Roberts would absolutely call a tax situation. It is pretty similar to the Obama Care ruling. Buy insurance or pay fine vs take shot or pay fine. 

    The second might be harder for even Roberts, there is no alternative to pay the fine/tax. Not saying it can’t happen, just that the logic would have to be even more convoluted that the ObamaCare decision. 

    • #3
  4. Flicker Coolidge
    Flicker
    @Flicker

    Stad (View Comment):

    OmegaPaladin: You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.

    Like, “You have to be nuts to support Trump.” Here comes the lobotomy . . .

    Do we do lobotomies on nuts now?

    • #4
  5. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    Flicker (View Comment):

    Stad (View Comment):

    OmegaPaladin: You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.

    Like, “You have to be nuts to support Trump.” Here comes the lobotomy . . .

    Do we do lobotomies on nuts now?

    No, that’s more in the ballpark of forced sterilization, is it not?

    • #5
  6. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    Alas, Blackmun (not to be confused with Blackman), in his majority Roe v. Wade decision, reinforced, or upheld, Buck v. Bell, reserving to the federal government the right to forcibly sterilize undesirables for public health purposes. Blackmun listed that as the sole circumstance in which the federal government was allowed to interfere with a woman’s right to choose. Read the last page of the opinion. Holmes essentially compared human pregnancy to contagion, or human reproduction of the unfit to contagion.  He, like the Boston Brahmins his racist father praised (Holmes, Sr., invented the term to refer to the god-like class to which he belonged), disdained ordinary humans, particularly us deplorables. Blackmun did likewise. But he gave away the game, namely that abortion was the new Eugenics regime.

    So, forced sterilization, abhorrent as it is, remains “settled law” at the federal level, stare decisis and all that fol-de-rol, until such time as the SC deigns to consider overturning Roe v. Wade. Perhaps the SC could just overturn the forced sterilization regime, since no State allows that currently (although California seems to toy with brining it back at times; California, of course, was the State which most avidly pursued forced sterilizations, and did so mostly through the auspices of the Human Betterment Foundation set up the board of Cal Tech, which included some of the most illustrious scientists, educators, and elites of the time).

    Perhaps Blackman could elaborate on how Roe v. Wade interfaces with forced sterilization and give us some better understanding of the implications of that last page of the Roe v. Wade decision.  Another good reason to overturn Roe v. Wade, and you would think the Left would agree. But, possibly, any tinkering with Roe v. Wade would be intolerable to the Left; and of course, I’m sure they would certainly like to be able to neuter all those Trump supporters out there, as an act of political public health hygiene.

    I should add that Carrie Buck’s lawyer was part and parcel of the cabal (that included the director of the Lynchburg, VA, institution where Carrie was confined and his friend, attorney, and former Virginia legislator who drafter the law, shepherded it through the legislature, and prosecuted the case at the local, state, and federal level) that was intent on getting the case to the Supreme Court for it’s imprimatur, to avoid the law being tossed out by the courts,  as other forced sterilization laws had been, in places like New Jersey (under Woodrow Wilson) and Indiana (under a Republican governor). He was the attorney for the colony and had a direct conflict of interest in representing Carrie. That’s American jurisprudence for you. Corrupt bottom to top. The case was a complete fraud. Totally concocted.  A travesty. And served as a template, more or less, for the process of getting the Roe v. Wade decision. America Justice. Right.

    And Jacobson was wrongly decided anyway. No exemptions of any sort. Wrong.

    • #6
  7. OmegaPaladin Moderator
    OmegaPaladin
    @OmegaPaladin

    Nanocelt TheContrarian (View Comment):

    Alas, Blackmun (not to be confused with Blackman), in his majority Roe v. Wade decision, reinforced, or upheld, Buck v. Bell, reserving to the federal government the right to forcibly sterilize undesirables for public health purposes. Blackmun listed that as the sole circumstance in which the federal government was allowed to interfere with a woman’s right to choose. Read the last page of the opinion. Holmes essentially compared human pregnancy to contagion, or human reproduction of the unfit to contagion. He, like the Boston Brahmins his racist father praised (Holmes, Sr., invented the term to refer to the god-like class to which he belonged), disdained ordinary humans, particularly us deplorables. Blackmun did likewise. But he gave away the game, namely that abortion was the new Eugenics regime.

    So, forced sterilization, abhorrent as it is, remains “settled law” at the federal level, stare decisis and all that fol-de-rol, until such time as the SC deigns to consider overturning Roe v. Wade. Perhaps the SC could just overturn the forced sterilization regime, since no State allows that currently (although California seems to toy with brining it back at times; California, of course, was the State which most avidly pursued forced sterilizations, and did so mostly through the auspices of the Human Betterment Foundation set up the board of Cal Tech, which included some of the most illustrious scientists, educators, and elites of the time).

    Perhaps Blackman could elaborate on how Roe v. Wade interfaces with forced sterilization and give us some better understanding of the implications of that last page of the Roe v. Wade decision. Another good reason to overturn Roe v. Wade, and you would think the Left would agree. But, possibly, any tinkering with Roe v. Wade would be intolerable to the Left; and of course, I’m sure they would certainly like to be able to neuter all those Trump supporters out there, as an act of political public health hygiene.

    I should add that Carrie Buck’s lawyer was part and parcel of the cabal (that included the director of the Lynchburg, VA, institution where Carrie was confined and his friend, attorney, and former Virginia legislator who drafter the law, shepherded it through the legislature, and prosecuted the case at the local, state, and federal level) that was intent on getting the case to the Supreme Court for it’s imprimatur, to avoid the law being tossed out by the courts, as other forced sterilization laws had been, in places like New Jersey (under Woodrow Wilson) and Indiana (under a Republican governor). He was the attorney for the colony and had a direct conflict of interest in representing Carrie. That’s American jurisprudence for you. Corrupt bottom to top. The case was a complete fraud. Totally concocted. A travesty. And served as a template, more or less, for the process of getting the Roe v. Wade decision. America Justice. Right.

    And Jacobson was wrongly decided anyway. No exemptions of any sort. Wrong.

    I was wondering when you would show up. 

    Read his article.  Blackman addresses Roe v. Wade along with other decisions.  Roe v. Wade did not rely on Jacobson or Bell, and it is not even the controlling abortion decision – that would be Casey.  Tossing Bell would be worthwhile on its own.

    • #7
  8. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    @omegapaladin

    I agree Buck v. Bell should be tossed. In fact, every moment that it remains settled law is an affront to the moral sentiments of any decent person. That the Supreme Court would make no effort to overturn it in almost 100 years is dispositive evidence of the utter corruption of American law. We’re not even to Nuremburg with this atrocity on the books. And all of those forced sterilization records at Cal Tech are still under lock and key in the archives, unavailable to anyone. How long will this atrocity stand?

    Please note that I did not say that Roe v. Wade relied on Buck v. Bell or Jacobsen. But, Blackmun did feel compelled to reference BOTH Buck v. Bell AND Jacobson v Massachusetts in his Roe v. Wade opinion. He referenced these two decisions, Jacobson justifying Buck, per Holmes; perverse reasoning, as LIMITATIONS on Roe v.Wade, that a person’s right to choose regarding personal medical decisions (abortion vs pregnancy)  is not absolute. Indeed, the only exception he listed to the right to control ones own reproduction,  is the continued right of the federal government, for public health purposes, to FORCIBLY STERILIZE people. Josh Blackman makes an erroneous statement in his abstract (which is all that I have read thus far–I don’t yet have an SSRN account, looks like I’ll have to establish one). Blackmun’s reference to Buck v. Bell was NOT  about restricting abortion at all, but about allowing the federal government to  continue to PREVENT REPRODUCTION PERMANENTLY in the given individual.  Blackmun had no necessity to list this exception. There was no real reason to do it. But, apparently,  he felt compelled to perpetuate Buck at a time when forced sterilization had been pretty much removed from State law and no one was contemplating resurrecting state laws allowing forced sterilization. Why did he do that?  IN my view, the point was to indicate that abortion was the new Eugenics regime. Indeed, RBG construed Roe v. Wade as allowing the federal government, or State governments, to force abortions, perhaps sterilization, on Medicaid beneficiaries who are burdens on the State (the original point of Buck v. Bell was to rid the country of undesirables who were or might become financial or other burdens on the State, and to do so generationally). 

    Interestingly, Paul Lombardi, an attorney, historian, and self styled ethicist, (in Georgia, no less) who is pro abortion, has written extensively and well on Buck v. Bell and Eugenics. He states that he is so happy to live in an era of abortion on demand as opposed to that barbaric era of forced sterilization. So much for our elite ethicists, historians, and attorneys. 

     

     

    • #8
  9. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    @omegapaladin

    I read the article. Thank God for Amy Conney Barrett.

    First, Blackman won’t say that Jacobson was wrongfully decided. He quotes from Harlan’s opinion, that those with good medical reasons that should be allowed exemptions, then that Jacobson is robust and healthy. That reveals Harlan’s complete ignorance of medicine. Jacobsen had been vaccinated for smallpox as a child. He was almost certainly immune to the disease. Further, he had had a rather severe adverse reaction to the vaccine, that, from his descriptions, was something akin to reflex sympathetic dystrophy which is an extremely painful neurological syndrome, or a generalized painful neuropathy. Jacobson’s symptoms apparently persisted for several years, as such neurological adverse responses to vaccines can do (c0mpare the guillan-barre reactions to the flu shot in the 1970s that paralyzed people, with some requiring long term mechanical ventilation, for as much as a year).  That Harlan ignored Jacobson’s descriptions of his symptoms is a sign of an arrogance and ignorance (much as Holmes got the terminology wrong in Buck v. Bell, calling Carrie an Imbecile–she was cognitively normal–when she had been categorized, in the horrendous and ridiculous pseudo-scientific terminology of Eugenics, as a moron, a little higher level of cognitive functioning that imbecile. Holmes couldn’t even be bothered to get the terms of the day correct).  Jacobson very appropriately feared a similar or worse reaction were he to get re-vaccinated. Indeed, revaccination could have killed him, with an anyaphyctic reaction, given the severity of his reaction to initial vaccination. By contrast, Jacobson had nothing to fear from smallpox. Nor did anyone in Cambridge. He couldn’t contract the virus nor could he spread it. Vaccination was completely useless, of no benefit to him or anyone else. The public health authorities then, as now, were incompetent, and the courts were derelict in not recognizing that. The local jurisdiction, acting out of fear and superstition and paranoia, insisted on something that was dangerous for Jacobson. It’s as if I were to insist on giving the flu vaccine to someone allergic to the components or materials in the vaccine. Might as well force peanuts down the throat of Howard Wallowitz on The Big Bang Theory.

    The American judiciary prides itself on its ignorance of medical science. 

    Mr. Blackman’s article is very useful as a summary of COVID jurisprudence. And jurisprudence leading up to it. It is very informative on the opinions written in various courts, including the supreme court. And it very helpfully exposes Roberts as, essentially, acting, subtle, with what I interpret is malice aforethought. He really seems to have a vicious dislike of ordinary Americans and their freedoms. 

    So, from erroneous SC decisions of the Progressive Era (which did untold damage to American jurisprudence, as well as to America generally) we get an exponential propagation of error in American jurisprudence. With, in my view, malice aforethought.

    • #9
  10. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    @omegapaladin

    I admit that I find it stunning that Blackman would characterize the invocation of Jacobson so inappropriately in COVID litigation as ‘judicial restraint.”  I think he has it upside down and backwards. That was judicial activism of the highest order, with courts falling all over themselves as fast as they could to inappropriately use that case to support the shut down of American society. This manifest hostility to Americans, complicity in trying to harm the country as much as possible to get rid of Trump, fear mongering to change election processes to allow a vast number of severe irregularities in American elections, and intentional extirpation, to the extent possible, civil liberties, enumerated and unenumerated. I’m sorry that I can’t chalk all this up to sincerely intended efforts to assist in public health protection from an American judiciary that was sincerely deferring to public health authorities. There was plenty of information (despite shadow banning of the Great Barrington Declaration and its authors) to inform the members of the judiciary that the prolonged lock downs were at best unhelpful (and thus didn’t meet Jacobson criteria as reasonable or effective) and at worst vastly more harmful than the virus and pandemic. The public health measures taken have been absolutely insane and harmful and continue to be with the vaccine mandates–vastly harmful. Yet the judiciary almost giddy misapplied Jacobson to perpetuate the lockdowns. This judiciary is comprised of  individuals who seem to truly hate America as Constitutionally constituted, and will take every opportunity to abuse and subjugate th populace. But Blackman will say none of this. He does, admirably, criticize Roberts, very appropriately I believe, and that is a great redeeming value of his paper. 

    But there is so much more. 

    It does come as news to me that Jacobson was used to defend Abbot’s pandemic restrictions on abortion in Texas. But I still believe Blackman doesn’t get to the crux of the issue as to why Blackmun cited Jacobsen and Buck in Roe.  I don’t think Blackmun had in mind using these to support restrictions on abortion, rather as dicta to reiterate the federal power to forcibly sterilize individuals for public health purposes. Not to establish restrictions on the right to abortion, but on the right to reproduction. So to use that as a means to support restrictions on abortion I believe is something of an aberration, some legal approach concocted by Abbot to allow him to impose those restrictions:  Creative legal thinking on the part of him and his advisors, but hardly legitimate as it was used. The issue there is Roe v. Wade itself, a very bad decision. The approach Blackmun takes in explaining all this, while it may indeed be valid regarding the conduct of legal argument and court decisions, is an example of an extremely tortured jurisprudence process that bursts the bonds of reason and plain meaning of language. But then, that’s what Law is all about in America, apparently. 

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