MINOT, N.D. — President Joe Biden's administration wants a vaccine mandate, and they've asked most of America's employers to enforce it.

Many, including some, like this observer, who very much want to see Americans get vaccinated, see Biden's move as a gross overstep of executive power and a crass political maneuver aimed at distracting from the catastrophe in Afghanistan.

“President Biden’s misguided plan steers our country down a dangerous path away from states’ rights and the freedom of private businesses to make their own decisions on vaccinations. We stand opposed to this blatant federal overreach," Gov. Doug Burgum said of the mandate in a released statement.

"The governor is a few years younger than I am," snarked columnist Mike Jacobs in rebuttal. "Perhaps by the time he was in high school the Constitution was no longer required reading."

Jacobs claims that Biden has a sound constitutional foundation because the preamble — the "we the people" part of our founding document — says a lot of things about "domestic tranquility" and the "general welfare" and providing for the "common defense."

WDAY logo
listen live
watch live
Newsletter signup for email alerts

Except, the preamble isn't law.

This is from the U.S. Courts website: "The preamble is an introduction to the highest law of the land; it is not the law."

READ MORE FROM ROB PORT

It's not uncommon for people, from Facebook trolls to newspaper columnists, who want to justify some egregious new government policy to cite the eloquent and high-minded but ultimately vague words of the preamble as a part of their legal arguments.

But, again, the preamble is not law. Nor should it be.

Our founders drafted the constitution as a way to restrain government. The idea that they intended the preamble to be the sort of blank check for government intervention that Jacobs and others view it as (at least in this situation) is a bit ridiculous.

A better defense of Biden's mandate, from a legal standpoint, would include a reference to Jacobson v. Massachusetts, a U.S. Supreme Court case from 1905 pertaining to a Massachusetts mandate for the smallpox vaccine.

This is how Justice John Marshall Harlan described the plaintiff, Henning Jacobson's, argument: “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.”

The court, however, disagreed.

Signs and flags waved amidst cheers and chants, as health care workers and supporters gathered to protest vaccine mandates by the federal government and private businesses. (Josiah C. Cuellar / The Dickinson Press)
Signs and flags waved amidst cheers and chants, as health care workers and supporters gathered to protest vaccine mandates by the federal government and private businesses. (Josiah C. Cuellar / The Dickinson Press)

"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," Harlan wrote in the opinion for the court's 7-2 majority. "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."

I suspect many of you reading that will find it both largely true and utterly unsatisfying as an answer to the debate over compulsory vaccinations.

No society can afford every individual absolute freedom. No reasonable person thinks otherwise. The problem is where we draw the lines between individual freedom and society's interests.

For some, including a majority on the Supreme Court in 1905, compulsory vaccination doesn't cross the line.

For many others, including, again, many, like me, who are very much pro-vaccine, it does.

More than two decades after the Jacobson, in 1927, the Supreme Court would also uphold compulsory sterilization laws in the 8-1 Buck v. Bell decision. Those were laws intended to implement the ideas of eugenics by preventing undesirable people from procreating.

Justice Oliver Wendell Holmes Jr., who concurred with Justice Harlan's vaccination opinion in 1905, found that the state's interests again overrode individual rights, and he cited compulsory vaccination laws as justification.

Carrie Buck and her mother, Emma, pictured here in 1924 (public domain photo)
Carrie Buck and her mother, Emma, pictured here in 1924 (public domain photo)

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind," he wrote in the majority opinion. "The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

Citing the Jacobson decision as precedent, Holmes concluded that, "Three generations of imbeciles are enough."

Chilling, isn't it?

(You should read up on the terrible history of Carrie Buck, the plaintiff in Buck vs. Bell, who wasn't so much "feeble-minded" as institutionalized to save her adopted family embarrassment after she was raped and became pregnant.)

In 1927 forced sterilization based on phony genetic "science" was considered to be acceptable public policy. In 2021, it is not.

In 1905, compulsory vaccinations were also considered to be in-bounds. In 2021, it's not nearly so clear.

Everyone is looking for a silver bullet answer to the question of whether or not the government can force employers to force their employees to get vaccinated.

There isn't one.

At the center of the debate is where the lines should be drawn when it comes to government powers, and that debate is never done. Not even when the courts have their say, which they will inevitably on Biden's mandate.

On a personal level, whatever happens with the mandates, please talk to your doctor about vaccination and follow their advice.

To comment on this article, visit www.sayanythingblog.com

Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com.