RR Phantom
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 |  Subject: Covid-19 Vaccine Mandates Fail the Jacobson Test  Wed Dec 01, 2021 4:37 pm | |
| Americans are a freedom-loving lot. It is our founding ethos and we have defended it across the world on numerous occasions. At the same time, we have a strong tradition of social altruism and dedication to the common good, especially in times of crisis.
Now that the Covid-19 pandemic has been with us for close to two years and vaccines for almost one, we have learned that the vaccines work to a degree and that they have both known serious risks and theorized potential risks.
Over the last few months, Americans have been increasingly facing demands that they be vaccinated or revaccinated—from governments, schools, employers, shopkeepers, even relatives.
These demands include legally enforceable “mandates” that coerce Americans to choose between compliance with vaccination demands and their livelihoods, attending school, travel, and partaking in manifold occasions of civic and religious celebration. Some Americans feel that these demands are appropriate, whereas others see them as classic examples of government overreach—as infringements of their constitutional and natural rights.
We are facing, in other words, questions about how best to integrate our perennial commitment to freedom with our equally long-standing concern for public health, in this time of crisis.
Anti-mandate contentions based on rights-claims pure and simple do not engage the most important issues presented by government vaccine mandates. Nor do they deal with the tension between freedom and civic responsibility. Based on the scientific knowledge and medical experience acquired over the last two years, it is time for a significant reconsideration of how best to integrate freedom with the genuine requirements of public health in service of the common good.
During the pandemic, the courts have rightly relied upon a century-old precedent of the Supreme Court in mandate cases, but they have gravely misunderstood and misapplied that precedent to uphold draconian and unjustified Covid-19 vaccine mandates.
Much that we have to say about these courts was presaged by three U.S. Supreme Court Justices on October 29, 2021. Arguing (unsuccessfully; they were in the minority) that the high Court should take up the case of a mandate challenge from Maine, Justices Gorsuch, Thomas, and Alito maintained that, although eleven months earlier the Court said that “stemming the spread of Covid-19” qualified as a “compelling interest,” “this interest cannot qualify as such forever.”
Why not? Precisely because (these Justices wrote) there are now three “widely distributed vaccines.” Eleven months earlier there were none. “At that time, the country had comparably few treatments for those suffering with the disease. Today we have additional treatments and more appear near.”
We would add especially that it has now become obvious that “eliminationist” strategies, in which the overriding public health goal is zero infections, are neither possible nor constructive. We must learn to live with Covid-19 as we have learned to live with other ineradicable, perennial airborne respiratory germs, such as those which cause the common cold and the flu.
Justices Gorsuch, Thomas and Alito wrote: “If human nature and history teach us anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” They said: “At some great height, after all, almost any state action might be said to touch on ‘… public health and safety’…and measuring a highly particularized and individual interest“ in the exercise of a civil right “’directly against these rarified values inevitably makes the individual interest appear less significant’.”
It is time to bring our legal thinking about Covid-19 vaccine mandates down to earth.
https://brownstone.org/articles/covid-19-vaccine-mandates-fail-the-jacobson-test/
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