Mandatory Vaccination and the Failure of Modern Constitutional Law

Posted by freedomforall 2 months, 1 week ago to Government
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Excerpt:
"Stare Decisis is an old Latin phrase meaning “Let wrong decisions of the Court stand.” The term is more commonly spoken of today as the common-law doctrine of precedent.

During the COVID-19 crisis, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was meant to be very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors.

Recent research on the part of constitutional law scholar Josh Blackman, his article “The Irrepressible Myth of Jacobson v. Massachusetts” demonstrated that over the course of a century, four prominent justices established a mythical narrative surrounding Jacobson v. Massachusetts that has obscured any historical view of this case as either a matter of law or fact. This myth has four levels:

The first level was layered in Buck v. Bell (1927). Justice Oliver Wendall Holmes Jr. recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime.
The second level was layered in 1963. In Sherbert v. Verner, Justice William J. Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises.
The third level was layered in 1973. In Roe v. Wade, Justice Harry Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions.
The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice John Roberts’ “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges.
This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal off that possibility."
SOURCE URL: https://libertarianinstitute.org/articles/mandatory-vaccination-and-the-failure-of-modern-constitutional-law/


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  • Posted by 25n56il4 2 months ago
    So, are vaxes mandatory or not? Why aren't they taking into consideration the people who got the virus and recovered? Do they think they need to be vaxed? Hell, no. I won't. I lost 35 pounds just having the virus. I'm 84 years old and I refuse to take a stupid shot they are calling a vax when you have to have boosters every 6 months.
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