THE NEW AUTHORITARIANS, THE COMPULSORY VACCINATORS
We like to think of ourselves as a humane people, a just people, a people who tolerate dissent out of recognition that dissent is a right we must all enjoy lest the day arrive when adherence to a government decree may strip all of us of the basic right to be left alone and to avoid deprivations of life, liberty, and property. The reality, however, is that throughout our history majorities intent on pursuing goals said to be for the public good or necessity have overridden dissenting voices and have even forcibly incarcerated individuals, injected foreign substances into them, and performed operations upon them, all against their will.
A sad aspect of history, involving majoritarian deprivation of the rights of the minority, is repeating itself with barely an objection from the media or defenders of individual liberty. The current rush to revoke laws allowing conscientious dissent from compulsory vaccination, including encumbering or revoking grounds based on religious or medical grounds, are a return to a very ugly era of elitism, one of gross intrusion into rights of personal autonomy and liberty that left us only a few decades ago.
Laws said to be for the common good that are used to justify forcible denial of the speech rights, religious liberty, personal autonomy, or reproductive liberty of individuals mark an authoritarian rejection of fundamental truths that underlie our Declaration of Independence and Bill of Rights. When we are noble and true to the free principles that support our fundamental laws, we start with the premise that all are created equal and endowed by their Creator with certain unalienable rights to life, liberty and property. We proceed to demand that governments honor those rights unless abused by an individual to deny the equal rights of others. Even in those instances where the equal rights of others are deprived by an individual, we demand that due process be observed and that a full and fair hearing proceed before an impartial judge and a jury of one’s peers so as to protect the rights of the accused against summary justice (which is the very definition of injustice). A nation of laws and of liberty depends on protection of the rights of the minority against the majority when the exercise of the rights of the minority involve no demonstrable injury to others.
Between 1907 and 1979, some 30 states adopted compulsory sterilization statutes in the United States which were based on widespread acceptance of eugenics, the flawed assumption born of the 19th Century mind of Francis Galton that mental illness, physical disability, and even criminal behavior were inherited characteristics. On that false, elitist premise, which sought to create a master race and gave rise to Nazi laws to exterminate the Jews, the mentally ill, homosexuals, and the infirm, state after state sought to rid its population of those deemed “undesirable” in the quest for purifying the gene pool (even before the Nazis adopted comparable laws in Germany).
In Buck v. Bell, 274 U.S. 200 (1927), the Supreme Court infamously upheld Virginia’s compulsory sterilization law as applied to 18 year old Carrie Buck, who had been raped while institutionalized, with Justice Oliver Wendell Holmes thundering in a decision to deprive Buck of her fundamental right to procreate the infamous words: “Three generations of imbeciles are enough.” That shameful decision echoes through history to the present wherein the new authoritarian elitists demand comparable control over individual autonomy to effect what they too see as a compelling public good: mandatory vaccination.
It indeed is that same elitist prejudice which imbues current demands nationwide coming from respected medical authorities and petty bureaucrats alike that every person in America be forcibly vaccinated regardless of their scruples to the contrary. Operating on the false notion that universal vaccination will somehow arrest the advance of common disease (a reality readily proven false based on several examples, including the current flu vaccine which authorities admit will shield less than 18% of the vaccinated population from the flu), the new authoritarians demand that laws be passed to effectuate that objective, to compel against their will every man, woman, and child to be injected with vaccine.
Likewise, as we see a resurgence of individual cases of the measles in the United States (there were some 644 confirmed cases in 2014 and 0ver 154 cases thus far in 2015), new calls emerge for revoking state law protections for those who wish to dissent from vaccination and for passing new laws that compel vaccination.
Independent of those laws, however, is the Bill of Rights’ guarantee of Due Process under the Fourteenth Amendment and of the right to privacy. On that basis, the Supreme Court in Cruzan v. Missouri Department of Health, 497 U.S. 261, confirmed its support for the right of competent persons to refuse medical treatment (even life-saving treatment) consistent with the liberty right of the Fourteenth Amendment and the implied right to privacy protected by that same amendment. If our courts will be true to the Fourteenth Amendment, and the First Amendment protection for the free exercise of religion, they will not allow those who dissent from vaccination to be forcibly vaccinated.
On the same argument which underlies compelled vaccination, one may also argue for compelled genetic engineering to achieve a specific alteration in select genes said to be linked to a higher incidence of, for example, breast cancer. Or, alternatively, to compelling those with genes said to be linked to an increase incidence of cancer to undergo mandatory mastectomies. The argument posed against this analogy is that unlike the communicable disease of measles, breast cancer is not transferrable, but the state can well subscribe to the view that it is inheritable if genetically based and, so, could likewise argue that compelled mastectomies serve a public good. I offer this example to alert those who are all too ready to endorse mandatory measles vaccines of the fundamental right they are sacrificing in the head long rush to achieve what they consider a public good.
To protect the right to dissent against violation of one’s personal autonomy, the Constitution intentionally erects substantial barriers that may not be overcome in the absence of proof that specific other’s equal rights to life, liberty, and property are imminently imperiled. In that regard, there are many less intrusive alternatives to forcible vaccination that may be taken to reduce the risk of the spread of infectious diseases. Assume for the moment that a true outbreak of measles afflicted our country (the present numbers do not justify that claim), one not in the hundreds or thousands of cases over a year’s time but in the hundreds of thousands of cases. The state could certainly urge people to be vaccinated but for those who will not, what then?
In the first instance, those who are not vaccinated pose a very indirect risk. They may contract the disease, for sure, but so may a percentage of those vaccinated. The measles vaccine, like all vaccines, cannot assure 100% effectiveness. Nevertheless, if evidence can be shown that the unvaccinated are in proximity of those with the disease and could carry it and infect others whether wittingly or unwittingly, then the unvaccinated could be compelled in those circumstances to abide by isolation or sanitation procedures designed to limit the spread of the disease.
For example, they could be asked to wear masks or gloves, strictly observe personal hygiene measures, avoid interpersonal contact, or, worst case, remain in their homes until the contagion had passed and the risk level had dropped to manageable levels.
In other words, out of respect for that most precious human right, the right of liberty over one’s person to be free from unwanted intrusions imposed by the state, we must necessarily make resort to compelled deprivation of that autonomy so difficult that every reasonable alternative to it must be tried and only upon proof that no alternative will suffice allow it and then only in the most limited of circumstances whereupon it has been proven that the equal rights of others to life, liberty and property are imminently imperiled. Only in this way may we be sure that we preserve liberty, due process, and religious freedom embraced here in a right to dissent against the winds of majoritarian tyranny and political force that direct state action. We must defend the rights of others to dissent against deprivations of right so that we may enjoy a like defense when we find ourselves out of step with the will of the majority.
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© 2015 Jonathan W. Emord - All Rights Reserved
Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable eight times, seven on First Amendment grounds, and is the author of the Amazon bestsellers The Rise of Tyranny, Global Censorship of Health Information, and Restore the Republic. He is the American Justice columnist for U.S.A. Today Magazine and joins Robert Scott Bell weekly for “Jonathan Emord’s Sacred Fire of Liberty,” an hour long radio program on government threats to individual liberty. For more info visit Emord.com, join the Emord FDA/FTC Law Group on Linkedin, and follow Jonathan on twitter (@jonathanwemord).
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