Many Americans today assert they have a right to choose whether to be vaccinated and/or wear a mask. They claim the Constitution gives them those rights. They are adamant in their belief that any attempt by government at any level to mandate those requirements infringes on their rights. The country has faced threats to its public heath and safety before, and historically, the response has been to protect the country.
Everyday Restraints and Responsibilities
Citizens of the United States are endowed with many freedoms, all of which are conferred by the US Constitution. The first ten amendments to the Constitution, otherwise known as the Bill of Rights, spell out in detail certain specific rights that enable us to live our lives as we see fit. However, along with those rights, there are also restraints and responsibilities. Some of us are familiar with everyday restraints. For example:
- freedom of speech does not allow you to yell fire in a movie theater;
- freedom to smoke does not allow you to do so in an airplane or other designated places;
- freedom to drive a car requires you to have a license, wear a seatbelt, refrain from alcoholic beverages while driving and obey the many rules of the road.
Supreme Court Imposes Responsibilities
Restraints imposed by the government have often been challenged and some have reached the Supreme Court. The Court weighs the rights of the individual versus the rights of the government to curtail individual rights, and they have come down on each side of that equation, depending on each unique circumstance. For example, in times of war, the Court frequently ruled in favor of government restrictions as they related to the war effort. Schenck v. United States was one of the first of these cases. In 1919, Justice Oliver Wendell Holmes, Jr. wrote the opinion for a unanimous Court, noting: “when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
The Constitution Is Not a Suicide Pact
In 1949’s Terminiello v. City of Chicago decision, the Court held that Chicago’s breach of the peace ordinance violated the First Amendment. However, Associate Justice Robert Jackson wrote in his dissent: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Years later, in 1963, Justice Arthur Goldberg wrote the Court’s opinion in Kennedy v. Mendoza-Martinez. While the Court ultimately determined that laws removing citizenship of draft evaders were unconstitutional, Goldberg acknowledged the “not a suicide pact” argument, writing: “The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.”
I hope my point is clear. Since the founding of this democracy, there has always been a delicate balance pertaining to rights. When the high Court recognizes that an individual’s rights are a threat to the country, individual rights have been restrained. And the threat need not be a war.
The Supreme Court Intervenes on Vaccinations
In 1902, in the midst of the smallpox epidemic, Cambridge, Massachusetts adopted an ordinance requiring “all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated.” A man named Henning Jacobson refused and was fined $5. When the Massachusetts Supreme Court upheld his conviction, the case went to the U.S. Supreme Court. There he claimed the law violated the Fourteenth Amendment of the Constitution, particularly the clauses providing that, “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.”
In upholding the State’s right to allow its localities to call for compulsory vaccination (Jacobson v. Massachusetts), the Court noted, “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.”
Early Actions to Quarantine and Vaccinate
But mandated actions to control a health crisis did not begin with the Supreme Court. In 1604 Parliament, the governing body of the American colonies until independence, passed the King James’s Act, which gave local officials the power to impose and enforce isolation and quarantine of potential plague carriers. Thus, local officials could restrict an infected person or other resident in that house in place until such they authorized lifting the quarantine.
Quarantines against smallpox dated back to the 1620’s, but the first quarantine law enacted in an American colony came in Massachusetts in 1647. Quarantines were not the only mandated protective health measures. During the Revolutionary War, George Washington ordered his troops to be vaccinated from smallpox. Since the 1850’s when Massachusetts required students to be vaccinated for smallpox, each state has decided which vaccines are required for a child’s enrollment and attendance at a childcare facility or school in that state. And the men and women joining the US military today are required to receive many vaccines before embarking on training.
I cite this brief history of mandated health laws in the Colonies to mute objections of those who find it convenient, if not necessarily accurate, to quote circumstances at the time the Constitution was drafted to direct its interpretation today. Since such mandated health protective practices were in place and accepted as appropriate before drafting of the Constitution, it is reasonable to assume that such practices were considered in its writing and specifically when it was ratified in 1788 as were its first ten amendments, the Bill of Rights, in 1791.
Patriotism
I would take this a step further to what it means to be a patriot. In an 1898 address entitled What is Patriotism in the United States, Alonzo T. Jones, a Seventh-day Adventist church historian and theologian, said, “Thus, love of country is really love of the institutions and the principles which make a country what it is in all respects; it is loyalty to those specific principles and institutions.” Protecting the health of our country is an American tradition. Though we have fallen short of our ideals, it remains a valued ideal.
So, who are the real patriots— the ones shouting in the streets, threatening those who advocate protective heath measures like vaccinations and masks? What about those spreading misinformation or crazy lies about the pandemic and how to stop it? The righteous government officials at every level who call for specific legislation and actions actually harmful to the community’s well being?
Real Patriots
No. There is no way to twist what they are doing into patriotism. The real patriots are everyday men and women who advocate scientifically supported measures to bring the Covid-19 pandemic to an end. They are the health care workers, the volunteers going door to door offering vaccine shots, the vaccinated parents helping their children tolerate wearing masks, and finding creative ways to keep them safe and happy during this dark time.
And there are so many more doing everything they can to bring this pandemic to an end by following science, and ignoring the mountain of misinformation and the bullhorns of the self-proclaimed faux patriots. Real patriots love this country and their fellow Americans, and whether they know it or not, they are the majority, the people referred to in the1905 Supreme Court opinion as it discusses the meaning of liberty: “nor is it an element in such liberty [in the Constitution] that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.”
So, to all those who assert it is their personal, Constitutional freedom to refuse vaccination, or refuse to wear a mask, you haven’t studied your history. You are wrong. But don’t take my word for it. Just listen to that unparalleled historian and constitutional scholar, Donald J. Trump who, in an appearance on NBC’s Meet the Press, responded to a question about his proposed ban on all Muslims entering the United States, “Our Constitution is great, but it doesn’t necessarily give us the right to commit suicide, okay?”
Another very informative and well done article Bob.