The Jacobson Decision: A Weak Precedent for COVID Vaccine Mandates
Defenders of government-imposed COVID vaccine mandates frequently cite the 1905 Supreme Court case of Jacobson v. Massachusetts to argue that such mandates are valid. The arguments are typically presented as though the Court decided that question without qualification or exception. A careful reading of the case demonstrates that it is a limited and tenuous precedent for current COVID policy.
Jacobson involved a Massachusetts statute that gave the board of health of a city or town the authority to "require and enforce the vaccination and revaccination of all the inhabitants thereof," and imposed a five-dollar fine on adults who refused to comply. The Supreme Judicial Court of Massachusetts, and then the United States Supreme Court, upheld the statute, but their grounds for doing so lend little support either to COVID vaccine mandates in general or to federal COVID vaccine mandates in particular.
Justice John Marshal Harlan, in writing the majority opinion for the U.S. Supreme Court, recognized that "[t]he authority of the State to enact this statute is to be referred to what is commonly called the police power..." An immediate issue arises, at least in the matter of federal mandates, in that there is no general federal police power. The Supreme Court has explicitly declared that "The Constitution... withhold[s] from Congress a plenary police power." This is a well-established constitutional principle, as noted by Justice Clarence Thomas in United States v. Lopez (1995). Thus, the stated authority for the vaccine mandates approved in Jacobson is explicitly lacking in the case of a federal vaccine mandate. To the extent that the federal government has any authority to impose vaccine mandates in the case of COVID, that authority is not found in the Jacobson opinion, and that case is largely irrelevant to the issue, except perhaps as an illustrative analogy. Jacobson does not establish a federal authority to impose COVID vaccine mandates. The Court specifically stated “The safety and health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government.”
Beyond the issue of constitutional authority, the Jacobson case relies on circumstances that are inapplicable to the COVID pandemic. Following Jacobson's conviction in the trial court, he complained that he was not allowed to present evidence that the risk of vaccination outweighed the benefits. The Massachusetts Supreme Judicial Court dismissed this argument by observing:
[...]for nearly a century, most of the members of the medical profession have regarded vaccination, repeated at intervals, as a preventive of smallpox [...]and that not only the medical profession and the people generally have for a long time entertained these opinions[...]
The Massachusetts court, quoted approvingly by the U.S. Supreme Court, took it as indisputable that vaccination prevented the spread of smallpox, so much so that contrary evidence need not be considered.
Like the Massachusetts Court, the U.S. Supreme Court presumed the efficacy and safety of smallpox vaccination, describing them as "the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease[...]" After some discussion, the Supreme Court noted "[...]vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries[...]." This is far from the case with COVID vaccines. The efficacy of the available COVID vaccines in preventing the spread of infection does not "find strong support in the experience of this and other countries," nor is it the case that "the people generally" entertain this opinion.
The available data at least engender good faith controversy as to whether any available vaccines effectively prevent the spread of COVID. These data include recurrent surges of infection in highly vaccinated populations and an observed inability of the vaccine to reliably prevent either viral replication in infected persons or transmission of infection from one person to another. The evidence suggests that, in the best of circumstances, vaccine effectiveness wanes over a period of months requiring an as-yet-undetermined course of repeated booster shots. The experience in highly vaccinated populations such as the United Kingdom, Israel, the Seychelles, and states such as Vermont raise valid questions as to whether any of the available vaccines effectively prevent the spread of COVID-19 and its variants.
The Jacobson Court did not have to contend with the scenario in which definitions of "vaccine" or "fully vaccinated" were time-limited. It did not have to address smallpox variants. The Court in 1905 could also rely on "nearly a century" of demonstrated smallpox vaccine efficacy and safety, whereas rationales for COVID vaccine mandates rely on poorly supported and rushed conclusions regarding efficacy and safety, dissembling opinions from experts whose credibility wanes in the same manner as vaccine effectiveness, and malleable explanations for the exact objective of widespread vaccination. The smallpox vaccination at issue in Jacobson was not a novel technology like the Pfizer and Moderna mRNA vaccines, the long-term effects of which, if any, are necessarily unknown. The Jacobson Court could not have ruled as it did unless it had established knowledge of both smallpox and the long-term consequences of vaccination; knowledge which is not nearly as well developed in the case of COVID. The Jacobson opinion is a poor precedent for COVID vaccine mandates because the assumptions upon which the Court could confidently rely do not apply to COVID.
References to the Jacobson opinion typically omit significant limiting language. The Court stated:
[T]he police power of a State, whether exercised by a legislature or a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.
The Court then said:
We are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination […]
The implication is that if the statute did establish such a rule, it would run afoul of constitutional protections. The Jacobson court assumed that the statute contained legitimate exceptions to a general mandate, specifically if a person could show that he was not, at the time, “a fit subject of vaccination.” A reasonable reading of this comment would suggest that vaccine mandates, whether state or federal, must contain, at least, medical exemptions. These should apply, for example, to persons who have autoimmune diseases or who had significant adverse reactions to the initial injection and declined the subsequent shots and boosters. There is likewise the open question of whether people who were previously infected with COVID are “fit subjects of vaccination.”
The evolving evidence is that COVID vaccines work to some degree, but they apparently do not work as hoped as public health interventions, and not well enough to support a regime of mandatory vaccination, as was the case in Jacobson. The reliance of vaccine advocates on Jacobson as authority for vaccine mandates is misplaced.
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