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Drudge Retort: The Other Side of the News
Friday, September 10, 2021

As disease and death reigned around them, some Americans declared that they would never get vaccinated and raged at government efforts to compel them. If it all sounds familiar, well, there is nothing new under the sun ... The years were 1898 to 1903, and the disease was smallpox.

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News articles and health board reports describe crowds of parents marching to schoolhouses to demand that their unvaccinated children be allowed in, said Michael Willrich, a professor of history at Brandeis University, with some even burning their own arms with nitric acid to mimic the characteristic scar left by the smallpox vaccine.

"People went to some pretty extraordinary lengths not to comply," said Professor Willrich, who wrote "Pox: An American History," a book about the civil liberties battles prompted by the epidemic.

On Monday, Representative Jim Jordan, Republican of Ohio, tweeted that vaccine mandates were "un-American." In reality, they are a time-honored American tradition.

But to be fair, so is public fury over them.

The roots of U.S. vaccine mandates predate both the U.S. and vaccines. The colonies sought to prevent disease outbreaks by quarantining ships from Europe and sometimes, in the case of smallpox, requiring inoculations: a crude and much riskier predecessor to vaccinations in which doctors rubbed live smallpox virus into broken skin to induce a relatively mild infection that would guard against severe infection later.

Legally speaking, the Supreme Court resolved the issue of mandatory vaccinations in 1905, ruling 7-2 in Jacobson v. Massachusetts that they were constitutional. The Constitution "does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint," Justice John Marshall Harlan, known for defending civil liberties, wrote. "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

The past is prologue once again. But let's be crystal clear, the SCOTUS has firmly ruled that vaccine mandates are not only constitutional and legal, their ruling invokes the connecting logic that no one person's liberty can override communal health concerns in times of communicable diseases spreading and threatening everyone in our society.

#1 | Posted by tonyroma at 2021-09-09 08:14 PM | Reply | Newsworthy 1

kids used to not be allowed to go to public school if they did not have the smallpox vaccination. I remember that well.

#2 | Posted by jakester at 2021-09-09 08:58 PM | Reply

^
What school was that?

#3 | Posted by Chieftutmoses at 2021-09-09 09:27 PM | Reply

What school was that?

This one.

#4 | Posted by tonyroma at 2021-09-09 10:58 PM | Reply | Funny: 1

Well that settles it I guess the faint memory in the family that my great grandma was part of a public health campaign against smallpox has now been proven.

I wonder if it's also a family tradition to call those who refuse to get vaccinated brain dead donkeys?

#5 | Posted by Tor at 2021-09-09 11:03 PM | Reply

But let's be crystal clear, the SCOTUS has firmly ruled that vaccine mandates are not only constitutional ...

I can't read the paywalled article but I suspect the author reads Jacobson much broader than the actual holding. The case upheld a state statute that empowered local health boards to require vaccinations and impose a fine against people who refused to be vaccinated. The general police power of the state was the source of the authority. That authority did not violate the "privileges and immunities" clause of the Fourteenth Amendment. www.law.cornell.edu

Note, the federal government lacks a general police power.

#6 | Posted by et_al at 2021-09-09 11:19 PM | Reply

Note, the federal government lacks a general police power.

Understand. I posted another thread about Jacobson a couple weeks ago and completely realize the case was about state and local authorities, not the federal government per se.

However, I think that I've seen other authorities theorize that the federal government might tie vaccine mandates to its power to regulate interstate commerce since the disease threatens national economic activities if such actions cannot be authorized under providing for a common defense or the general welfare clauses.

#7 | Posted by tonyroma at 2021-09-09 11:42 PM | Reply

#4 - more schools than that one, Tony. Entire school districts and indeed many states had such rules/laws. The school district in which I went to school required smallpox vaccination.

#8 | Posted by jakester at 2021-09-09 11:50 PM | Reply

...be authorized under providing for a common defense or the general welfare clauses.

Scratch that. The preamble is not the law as et_al's link elucidates.

However, it does seem reasonable that in conjunction with the CDC, the same conditions for requiring vaccines are identical to those of the state back in 1905 before there was a federal medical authority.

We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that 'persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state ...'

www.law.cornell.edu

Hence my belief that such a federal mandate could be tied to its authority to regulate commerce.

#9 | Posted by tonyroma at 2021-09-09 11:54 PM | Reply

#9

True, the Commerce Clause is an avenue. A limited one. See the President's announcement today.

What's important about Jacobson is the source of the power, the general police power of the state. A power the federal government does not have.

#10 | Posted by et_al at 2021-09-10 02:19 AM | Reply

A power the federal government does not have.

Yes, but the federal government does have the power of the purse. It wouldn't be the first time for DC to force states into compliance by cutting off funding, would it?

And tonight, Rachel opened her show with a video and recording of Nixon signing OSHA into law back in 1970. Their power to enforce workplace safety falls in line with the EOs Biden issued today, something Nixon verbalized himself. He pretty much articulated the perfect supporting logic for government's interest in keeping Americans safe during the course of commerce and the federal government's role in regulating it.

It's as if this concept is completely foreign to today's GOP who wrongly imply that Biden's focus is tyrannical in nature instead of being borne out of frustration that the virus is negatively impacting the economy and causing great harm to our people and healthcare system when it doesn't have to if more people would simply protect themselves and others by getting vaccinated.

#11 | Posted by tonyroma at 2021-09-10 02:57 AM | Reply

Yes, but the federal government does have the power of the purse.

Yes. The federal government can incentivize but cannot compel the states to do anything.

Yes, the OSHA legislation gave the federal government limited jurisdiction over the workplace, not the country.

#12 | Posted by et_al at 2021-09-10 03:17 AM | Reply

Unfortunately, much of the burden falls on more localized authority " and that results in a crapshoot when it comes to public health, e.g. Abbott. DeSantis, the KY legislature, etc.

#13 | Posted by Doc_Sarvis at 2021-09-10 06:45 AM | Reply

Yes, the OSHA legislation gave the federal government limited jurisdiction over the workplace, not the country.

Can you name a public place or activity that isn't directly tied to someone being involved in a workplace? I'm hard pressed to do so. Almost everyplace is someone's workplace, ie. even the great outdoors (public parks, etc.) is the workplace of rangers and local/state/federal law enforcement. Wherever we go, however we get there outside of our own privately-owned transportation involves interaction with many people's workplaces - hence the logic and rationale behind Jacobson as it relates to bestowing temporary power to the states in times of extraordinary circumstances such as pandemics.

Of course that power is limited because the circumstances themselves are limited. My belief is that a compelling case could be made based on life/health considerations due to the actual harm/injury caused to non-Covid patients unable to get necessary immediate care because willfully-unvaccinated, hospitalized Covid patients have taken up critical space and resources now unavailable to others. And said Covid patients are pushing both providers and facilities themselves to their breaking points, which would be catastrophic to the public as a whole were it to happen in any widespread manner - unnecessarily compromising healthcare services for millions of citizens.

And the fact that citizens of states who refuse to protect their personal safety interests over the false notions of unfettered individual liberty already limited within the Jacobson ruling's language - along with all the empirical data compiled by the CDC showing both the damage of Covid's spread and the efficacy of vaccination against it - might be cause for the courts to allow that under OSHA regulations the federal government can indeed mandate vaccinations in workplaces in such extraordinary times and circumstances, albeit temporarily, until there is no longer a pressing public safety need for them.

It seems like a logical argument to me. Guess we'll soon see if it is. Or isn't.

#14 | Posted by tonyroma at 2021-09-10 08:15 AM | Reply

Yep... we've been down this road before... the knuckle draggers weighing us down as always. No wonder they're always going on about how Jezus is gonna save them because they are too stupid to save themselves.

#15 | Posted by RightisTrite at 2021-09-10 11:02 PM | Reply

I remember eating the sugarcube laced with a couple drops of the Polio vaccine when I was around 5 or 6 years old (1961~62) at the local Elementary School.

#16 | Posted by shane at 2021-09-11 11:15 AM | Reply

#16

A handful of years later mine was the oral version swallowed from a small ampoule.

#17 | Posted by tonyroma at 2021-09-11 11:45 AM | Reply

#16 - we did that every year, too. Vaccine in a sugar cube.

#18 | Posted by jakester at 2021-09-11 11:51 AM | Reply

It seems like a logical argument to me. Guess we'll soon see if it is. Or isn't.

#14 | POSTED BY TONYROMA AT 2021-09-10 08:15 AM | FLAG:

Can't remember who said "based on 100 years of legislation!" but as a point of fact, OSHA is only 50 years old. Specifically where we're at is OSHA ordered to make an emergency order. OSHA has to order it as a Emergency Temporary Standard. The last time it was used was 1981 for Asbestos. It was stayed. Of 9 ETS ever issued only 1 has survived legal challenge. 6 were challenged, 5 overturned, 1 kept. The remainder were indeed temporary.

As a practical matter, my workplace is my home and has been for 20 years. This rule doesn't apply to me specifically. However, are we saying that OSHA can force somebody to be vaccinated to work in their own home because they happen to be employed by a company with more than 100 people? That rule will have to be extremely narrowly tailored and very brief to survive a legal challenge.

#19 | Posted by sitzkrieg at 2021-09-11 05:25 PM | Reply

Even playing along, OSHA has 2400 inspectors and a budget of $552 million. That $552 million is not enough to cover their current mission. Congress has to pay for the auditing and enforcement of over 200,000 companies this applies to and at a cursory glance, at least 24 million employees.

#20 | Posted by sitzkrieg at 2021-09-11 05:38 PM | Reply

As I clearly explained in the other thread the SCOTUS ruling of the law allowing the states to mandate vaccines is over 100 years old, having been adjudicated in 1905. And I also clearly delineated that Biden's power to do what he's doing is derived from the OSHA law of 1970.

The spirit of the state law and how the court defined its legal purpose and use by the state is consistent with what Biden is doing. He didn't come out of the box with mandates, but the damage unvaccinated people are doing to everyone else - by spreading disease and filling hospitals so non-Covid emergencies have nowhere to go - has become untenable as a matter of public health.

However, are we saying that OSHA can force somebody to be vaccinated to work in their own home because they happen to be employed by a company with more than 100 people?

I don't think so. I believe that the 100 employee threshold is for people working in the same locations. At least I hope that's how it's written. But in actuality, it's still in every company's best interest to try and keep their employees disease free, and it also helps keep their health insurance expenditures down. (See the thread about Delta Airlines)

I simply have a hard time believing that any court is going to turn a harsh ear to the Biden Administration when it's clearly in this nation's interests to stop this virus from spreading and killing over 1500 Americans every day. As I've tried to articulate - as the SCOTUS ruled in the past - this issue is a HEALTH issue, not a freedom issue. The freedom argument is DOA due to the catastrophic nature of the pandemic. And the government is on the right side of the law since it's only goal is to try and keep citizens from getting sick and dying due to the public conduct of unvaccinated people refusing to follow the best practices of health experts. And once the crisis is over, so is the mandate.

#21 | Posted by tonyroma at 2021-09-11 09:59 PM | Reply

There's lawyers that disagree highly with your view of Jacobson, and Jacobson doesn't apply to OSHA federal rules since it's a state ruling, so we're right back to the issue of Blue vs Red state implementation. Bold all you want, doesn't change.

I expect it to be written broadly and badly due to the statistically high number overturned previously that were written broadly and badly. You also completely skipped the implementation problems, but that's not surprising. Aspirational politics and logistics rarely work out together.

You should have a very easy time expceting it to be overturned. The eviction moratorium never had a chance. You know, I know it, Biden knows it. It's your job to cling to the claimed "new research" suggesting it was possible despite the mountain of evidence because of party goals, but for the rest of us it's okay to take a realistic view.

#22 | Posted by sitzkrieg at 2021-09-12 08:44 AM | Reply

Businesses WANT their employees disease free, there won't be widescale implementation issues, hence the title of the other thread: Why Corporate America is quite content with Biden's vaccine policy.

Again, you're missing the forest for the trees: This pandemic is a PUBLIC HEALTH issue and even before the US was the US, governments issued vaccine mandates to protect ALL PEOPLE from disease. Covid is no different.

There is nothing political about 660,000 Americans dying and over 40 million contracting a wholly preventable virus if simple precautions are taken.

Americans do not have the freedom to spread disease and death to other citizens under the Constitution. Full stop.

#23 | Posted by tonyroma at 2021-09-12 08:51 AM | Reply

Jacobson doesn't apply to OSHA federal rules

I wish you'd read with more comprehension. Jacobson has never been tested under OSHA rules - something I made clear. The spirit of Jacobson is about the government's (albeit 'state') right to demand that all non-vaccinated citizens within its jurisdiction be vaccinated for the safety's sake of everyone else. Right now we're facing recalcitrant states refusing to protect its citizens, so the federal government is using OSHA to bring about the same ends to protect American citizens regardless of where they live.

Privacy advocates will not overcome the logic of Jacobson by arguing about individual liberty. The gist of the ruling is that individual liberty takes a backseat to temporary measures to stop disease from spreading to those negatively affected by the decisions of non-mitigators. Covid does not stop at state lines, so in addition to OSHA, at some point interstate commerce is also threatened by Covid's spread, giving another lane for the federal government to make its case.

#24 | Posted by tonyroma at 2021-09-12 08:59 AM | Reply

And again there is this reality:

One is that our country has been mandating vaccines for a very long time, and the Pfizer vaccine now has the same status as those other vaccines: full authorization by the Food and Drug Administration. The Republicans who today say vaccines should be a matter of choice have done relatively little over the years to fight mandates of other such vaccines.

The second is that, for all the pushback on vaccine mandates, this isn't truly a vaccine mandate at all; it's a mandate to either get the vaccine or get tested weekly. You could even call it a testing mandate with a vaccination opt-out, if you wanted to. People who don't want the vaccine needn't get injected with anything or forfeit their job. To the extent this is "authoritarianism," it's the tyranny of a brief-if-relatively-frequent nasal swab.

[I]f you're going to oppose a mandate for a fully authorized vaccine, it would make more sense if you opposed them more broadly. If you're going to isolate the one that happens to protect against a virus that has killed more than 600,000 people since the start of 2020, that seems like a strange place to draw the line - unless you have a reason you're not enunciating for why this one is different. Federalist concerns are perhaps valid, but we've seen almost no Republicans say even states or local governments should be allowed to do this.

And the drawing of that line is somewhat more curious now, given that, unlike mandates for those other vaccines, this one isn't strictly a vaccine mandate at all.

www.washingtonpost.com

So in actuality there is no vaccine mandate; there is a "testing mandate with a vaccination opt-out". So you still think any court is going to rule against that while Americans continue to get sick and die that don't need to?

#25 | Posted by tonyroma at 2021-09-12 09:23 AM | Reply

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