Are Mandatory Vaccinations Unconstitutional?
With the Covid-19 vaccines being rolled out, many are refusing to get one, leaving some states pondering making them mandatory. This is not a new issue, and yes, mandatory vaccinations are constitutional.
Pew Research Center just released an alarming statistic: “About four-in-ten (39%) say they definitely or probably would not get a coronavirus vaccine.” Participants in this study said their refusal was based on mistrust of science, mistrust of government, and the belief that they are an exception, due to their personal health and hygiene practices.
If only 61% of the population gets vaccinated, then we will likely not reach herd immunity. While the percentage of the population that needs to be vaccinated to achieve herd immunity with Covid-19 has not yet been firmly established, new research claims “A re-evaluation of the findings and numbers available, using the new mathematical models, shows that COVID-19 HIT estimates are as high as 60 to 80 percent.” For comparison, measles requires 95%, polio requires 80%, and smallpox requires 80%. All of these were controlled by reaching herd immunity thresholds through mass vaccinations. With Covid-19, though, it’s not looking promising.
The solution, then, is mandatory vaccines, which will predictably enrage half the country due to their propensity to believe in conspiracy theories and use pseudoscientific reasoning. But the legal basis for doing so is firmly established.
Legal Basis for Mandatory Vaccinations
The first thing to understand is the enumerated powers, most of which are found in Article I of the US Constitution. These explicitly spell out the role of the federal government, such as dealing with foreign governments, regulating interstate commerce, maintaining an army, etc. The Founding Fathers insisted on a clear explanation of the federal government’s power, and where it ends, state power begins. To underline this point, they included the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The important take away here is that the federal government only has limited and specific powers over the states.
Therefore, states have been granted “police power.” In other words, “States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public.” This allows states to create their own laws and enforce them. And this is the basis for state governors enforcing mask wearing, lockdowns, and if it comes to it mandatory vaccinations.
On the other hand, opponents point to The 14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This was famously applied in the 1954 Supreme Court case Brown v. Board of Education. The judges unanimously ruled that segregation of public facilities was a violation of the equal protection clause, as being separate made them inherently unequal. Therefore, Kansas state law was struck down because it infringed on constitutional rights. So wouldn’t this apply to mandatory vaccinations?
No, because of two important court cases.
The 1851 Massachusetts Supreme Court case Commonwealth v. Alger decided that a state could use their police power to protect the common good. Justice Lemuel Shaw voiced the majority opinion, in which he said “We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.”
The 1905 Supreme Court case Jacobson v. Massachusetts decided that a state could use their police power to enforce mandatory vaccinations to protect the common good. Justice John Marshall Harlan said “in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Therefore, the states have the power to mandate vaccines.
What About Private Institutions?
The answer is still yes. Employers are required to create a safe working environment, and if a threat has been identified, they are required to create the necessary rules to squash it. According to the Occupational Safety and Health Administration employers need to “Provide a workplace free from serious recognized hazards.” This includes pandemics and any other threats that have been recognized by experts. Even though, a company may be privately owned, they still need to abide by OSHA rules. So, yes, it’s constitutional because OSHA was created by an act of Congress in 1970. The states are also allowed to regulate businesses that operate within their borders through their police powers.
This goes for private schools too. An individual school may refuse, but it is within the rights of the state government to enforce mandatory vaccinations on them. The Center for Disease Control says “State laws establish vaccination requirements for school children. These laws often apply not only to children attending public schools but also to those attending private schools and day care facilities.” This was firmly established in the 1922 Supreme Court case Zucht v. King. Rosalyn Zucht was refused entry into numerous schools because she refused the smallpox vaccine, which was required by a city ordinance. The Supreme Court simply pointed back to Jacobson v. Massachusetts, saying “it is within the police power of a state to provide for compulsory vaccination.”
What About Exemptions?
It depends. Every state has different requirements that need to be met to get an exemption. Every state allows for medical exemptions, such as having an allergy or a weakened immune system. 45 states allow for religious exemptions. Some of these states require proof of belonging to a religion that objects to vaccines, such as Christian Scientists. Most states, though, do not require proof. 15 states allow for personal or philosophical exemptions.
However, you are not guaranteed an exemption simply because you want one. The state government can deny your request. In the 1944 Supreme Court case Prince v. Massachusetts, the court found that “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
Therefore, if you don’t get an exception and if the Covid-19 vaccine become mandatory, then you can be fired, fined, or removed from school. Why? Because it’s constitutional.
You’re a Jerk, Not a Patriot
We’ve all seen videos of adults throwing tantrums in stores because they don’t want to wear a mask. 6 men were arrested for plotting to kidnap and put on trial for treason Governor Gretchen Whitmer because of her lockdown orders. Numerous politicians including Trump have painted measures to stop the spread of the pandemic as violations of our basic freedoms. It’s insane, and it’s wrong.
The states are allowed to impose lockdown orders, mandate wearing a mask, and require Covid-19 vaccines if they choose to. Nobody is violating the Constitution. Nobody is taking away your freedom. You are not a patriot fighting a new revolution. You’re just a jerk.
Originally published at http://thehappyneuron.com on January 5, 2021.