The COVID-19 Vaccine Mandate: Where do you stand?

Dec 9, 2021

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Declaration of Independence, Preamble

Abraham Lincoln called the Declaration of Independence “a rebuke and a stumbling-block to tyranny and oppression.” The spirit of the Declaration is seen in our Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

U.S. Const., Preamble

As Americans we prize our freedom, our Liberty. Historically, Liberty has been jealously guarded by the Courts. Over the years, the Supreme Court has sought to explain what Liberty means and what it entails:

“[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Meyer v. Nebraska, 262 U.S. 390 (1923).

Liberty includes “a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security.”

Ingraham v. Wright, 430 U.S. 651 (1977).

“[Liberty] is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”

Bolling v. Sharpe, 347 U.S. 497 (1954).

Liberty and the freedoms that comes with it, however, are not absolute. For example, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic … .” Schenck v. United States, 249 U.S. 47 (1919). The Bolling court also highlighted an important limit on Liberty – “it cannot be restricted except for a proper governmental objective” (highlight added).

Liberty v. Vaccine Mandates

In 1905, in the midst of a small-pox outbreak, the U.S. Supreme Court held that local authorities could mandate vaccination on penalty of a fine for refusal:

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

In South Bay United Pentecostal Church v. Newsom 140 S.Ct. 1613 (2020), a local mask mandate during the COVID-19 pandemic was challenged. Chief Justice John Roberts affirmed the central position of Jacobson v. Massachusetts:

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

Newsom, 140 S. Ct. at 1613-14.

Right now, the focus of the constitutional debate surrounding the Biden administration’s COVID-19 vaccine mandate is on the issue of federal power versus states’ rights. The opponents of the mandate argue that the federal government is overstepping its federal powers and interfering with state powers under the Tenth Amendment, which provides that “[t]he 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.”

However that Constitutional issue is resolved, there is still an issue whether any COVID-19 vaccine mandate is Constitutional. As we know from the cases discussed above, the power of government (federal or state) may sometimes prevail over an individual’s Liberty. When that happens, however, the government’s actions must be carefully scrutinized so that the government’s power is “not exceeded.” With that in mind, consider this:

Is the COVID-19 pandemic (1.6% mortality rate[1]) a situation where a “proper governmental objective” (mandated vaccine to protect the masses) should overtake an American’s Constitutional right to Liberty (freedom of choice over one’s body)?

[1] Johns Hopkins Coronavirus Resource Center (https://coronavirus.jhu.edu/data/mortality)