John Klar: Why a mandatory COVID vaccine is unconstitutional

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The legal question of the constitutionality of mandatory vaccinations is thus dependent on the medical evidence. How deadly is COVID-19? COVID-19 occupies a relatively innocuous position on that spectrum of deadly scourges, and the rates of mortality are declining.

By John Klar

A mandatory COVID-19 vaccine might save lives, but that doesn’t mean it would be constitutional. Many say “we must do what the doctors say” without any thought for constitutional restrictions. Neither medical nor constitutional factors may properly be analyzed in a vacuum. When they’re brought together, there is no question that a mandatory COVID-19 vaccination law would conflict violently with the U.S. Constitution.

New York’s Bar Association recently called for the imposition of mandatory vaccinations:

The New York State Bar Association (NYSBA) is recommending that the state consider mandating a COVID-19 vaccine once a scientific consensus emerges that it is safe, effective and necessary[.] … “The magnitude of the COVID-19 pandemic is unprecedented over the last 100 years by any measure — the number of lives lost, the survivors who remain seriously ill, the risks faced by health care workers, the disproportionate impact on communities of color, the profound trauma and the disruption to our economy,” said NYSBA President Scott M. Karson.

The New York Bar Association has committed gross legal malpractice in this declaration. It has misrepresented both the law and the facts.

The constitutional law regarding states’ use of police powers to protect public health and safety is well established. Any infringement by government of a fundamental right is subject to strict scrutiny, which chiefly incorporates two concepts: that in such cases, the government’s interest must be “compelling” (what the N.Y. Bar refers to as “necessary”), and it must be accomplished by the “least restrictive means.” Under this standard, “the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.” Further, “[t]his test applies even when the government has a legitimate purpose in adopting the particular law.”

There is no question that restricting travel, assembly, or speech impacts a fundamental constitutional liberty. All of these have been compromised under COVID. But America has never compelled vaccinations without exemptions (or the option to pay a criminal fine). Is the dramatic intrusion of compulsory vaccinations “necessary”?

To evaluate just how grossly incorrect the New York Bar is in its position, let us compare diseases. Surely the government would have constitutional difficulty mandating a human papillomavirus vaccine or, say, injected vitamin supplements. Regardless of whether these were “safe and effective,” the intrusion on individual liberties would surely be “unnecessary.” On the other end of this comparative spectrum might be Ebola, an illness with a mortality rate of up to 90% that targets pregnant women and the very young. Few would argue the government lacked constitutional “necessity” in the event of an Ebola outbreak in the United States.

The legal question of the constitutionality of mandatory vaccinations is thus dependent on the medical evidence. How deadly is COVID-19? COVID-19 occupies a relatively innocuous position on that spectrum of deadly scourges, and the rates of mortality are declining. That is, the medical evidence falls far short of surmounting that legal standard of strict scrutiny required by the United States Constitution.

The seminal case on the constitutionality of forced government vaccinations is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision that affirmed Massachusetts’s authority to impose mandatory smallpox vaccinations. Yet Jacobson does not answer today’s COVID-vaxx question: smallpox was unquestionably a much deadlier illness.

In reaching its decision in 1905, the Court was circumspect:

Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. (p.28)

The New York Bar’s proposal to mandate vaccinations for COVID goes “far beyond what is reasonably required for the safety of the public[.]”

The Jacobson Court specifically cited (p. 29) yellow fever and Asiatic cholera as comparable diseases warranting quarantine or other restrictions on personal liberty. Yellow fever has a mortality rate of 15–50% of reported cases; Asiatic cholera kills in mere hours, with a mortality rate approaching 50%; smallpox killed 30% of those infected. How would the Jacobson Court have evaluated COVID-19, especially if the law imposed a mandatory vaccination without the escape path of paying a fine?

COVID-19 does not rise to that level of medical “necessity” required by existing American law for a person’s rights (and body) to be violated by government in the name of “protection of health.”  Current studies reveal that it is primarily the very elderly who are at risk and should be protected:

[T]he infection fatality rate is lowest in people five to nine years of age (0.001%), increasing to 0.1% among those 25 to 29 years of age, almost 1% among those 60 to 64 years of age, and is highest among those 80 years and older (8.4%).

Will the New York Bar mandate vaccinations for children who face a 0.001% mortality rate, to protect the small minority of citizens who face an 8.4% risk of death? That would seem to turn Jacobson on its head:

[I]n 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. (p.29)

Does the risk of death to a minority elderly population legally justify imposing intrusive burdens on the majority? This is the opposite of imposing a vaccination regimen on a minority to protect the majority, as occurred in Jacobson.

And remember, those rates of COVID death are dropping:

The standardized mortality ratio dropped from 1.26 (95% CI, 1.15-1.39) in March to 0.38 (95% CI, 0.12-0.88) in August, at which time the average probability of death (average marginal effect) was 18.2 percentage points lower than in March.

COVID is now rampant, increasing herd immunity well ahead of a government-imposed pharmaceutical rescue. It is also less deadly, and a very far cry from the menaces of ebola, yellow fever, smallpox, or cholera that would justify government power to forcibly stick a needle in a child’s arm. (Perhaps New York will simply prohibit the unvaccinated from being able to buy or sell goods.)

Citizens must learn these clear legal precedents for themselves. As for the New York Bar, it should be dis-barred for evident legal malpractice.

John Klar is an attorney and farmer residing in Brookfield, and pastor of the First Congregational Church of Westfield. This commentary originally appeared at American Thinker.

Image courtesy of Public domain

27 thoughts on “John Klar: Why a mandatory COVID vaccine is unconstitutional

  1. John, why isn’t there an effort to sue the state in federal court for the unconstitutionality of these executive orders? Is there anyone out there that can lead the charge? Can we set up a fund? I’d contribute. At the very basic, his latest order violates the 1st Amendment’s right of the people peaceably to assemble. So isn’t that grounds for a challenge, and don’t we all have standing?

  2. I wonder, does Governor Scott read this?

    Reading below, he’ll find many valid, factual points for a change in policy.

    Many in our government have no regard for science or the constitution. Vermont Digger will no allow any discussion, which is the mark of censorship and propaganda. The scientific method….not only allows open debate and discussion, challenges, it encourages it to test their theory and validity. Anyone with ANY true science back ground knows this and embraces this. Of course, not having been taught properly in schools for 2 decades the most basic simple fact is ignored and scorned by the media.

  3. I completely agree, yet the Constitution is just the tip of the iceberg of reasons we don’t need mandatory vaccinations. Consider:

    1. Mandatory vaccination violates the Patient Bill of Rights, which is based on principles set forth in the Nuremberg Code on human experimentation and the Universal Declaration on Bioethics and Human Rights.

    2. The Covid-19 recovery rate, without a vaccine, is 99.7%. That’s the official CDC figure. Below 50 years, the mortality rate is in the range of regular flu. More children have died from flu this year than from Covid-19–and that’s WITH an available flu vaccine.

    3. Despite pending FDA approval, the vaccine raises safety and efficacy concerns. The new vaccine, produced by Pfizer and Moderna, uses mRNA technology, otherwise known as “germ line editing,” which is a form of genetic engineering. You don’t hear that on the news. This type of vaccine has never been used on a human population. Emergency Use Authorization will allow the vaccines to bypass the usual full battery of safety studies–especially long-term studies–rolling out a finished product in 9 months when the previous record for ANY vaccine is four years. Good grief.

    4. Vaccine makers have full immunity to liability for injuries. Per the National Childhood Vaccine Injury Act of 1986, “no vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death.” So you get all of the risk, they have none.

    5. We have effective treatments for Covid-19. Chief among these is hydroxychloroquine (HCQ). Though politicized in the corporate media, HCQ is FDA-approved, inexpensive, and has been proven effective against Covid-19 in over 100 peer-reviewed studies when used early in the infection.

    6. There’s more to immunity than vaccination. Studies show that more than half of people may already have some cross-reactive T-Cell immunity to Covid-19 due to exposure to previous coronaviruses, even years later. This probably explains why most people who test positive have no or mild symptoms.

    Anyway, those of us who have studied this knew way back in March that a push for mandatory vax was coming. Covid-19 is a gold rush for Big Pharma. They care more about profit than they care about you. Please think hard and stand up for your right to choose. Our bodies do not belong to the State. They belong to us.

  4. Vaccines cannot, today, be forced on American citizens by the government. But the government can impose consequences on those refusing to be vaccinated. For example, attaining a Green Card requires certain vaccinations. Businesses and public social service providers can require vaccinations of participants.

    The draft, by the way, is similarly enforced. Back in the day, you could resist the draft and refuse to serve. Muhammad Ali did it. So did many so-called ‘conscientious objectors’. Ali had his professional boxing license revoked. But he didn’t go to jail or pay a fine.

    On the other hand, you must register with the Selective Service by law. There are serious penalties for not doing so.

    “If required to register with Selective Service, failure to register is a felony punishable by a fine of up to $250,000 and/or 5 years imprisonment. Also, a person who knowingly counsels, aids, or abets another to fail to comply with the registration requirement is subject to the same penalties.”

    There have been, for example, only 20 indictments in Federal court for violating the draft registration laws and only 15 convictions. The last one was in 1986. But there are all sorts of federal benefits and opportunities that can be withheld.

    Bottom line: Constitutionality is a relative determination. One of the most reviled SCOTUS rulings of all time was Dred Scott v. Sandford in 1857. Slavery was constitutional until 1863. And then there was Plessy v. Ferguson in 1896, the infamous ‘separate but equal’ ruling on discrimination. Women weren’t allowed to vote until 1920. The 18th Amendment, ratified in 1919, prohibited the sale of alcohol until the 21st Amendment repealed it in 1933.

    The beauty of our system, however, rests in a citizen’s ability to use the judicial system for redress of grievances until society finally, if ever, deems the results acceptable. After all, as Benjamin Franklin addressed to the Constitutional Convention in 1787:

    “I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, …”. Everyone should read his address. There is more to the story. So much more. As there is with this current pandemic.

    • In my humble opinion, this pandemic and its consequences are a continued contrivance of the highest and most devious order. I’ve been suspect from the beginning. From the Russia hoax, the Mueller Investigation, the Ukrainian impeachment fiasco, to Covid 19 (the Wu Flu), globalists are taking control of our Republic. Anyone who believes otherwise is naive to the extreme, or a party to the conspiracy. Being vaccinated is the least of your worries.

      Case in point: The conspiracy theory is no longer a theory. Pierre Trudeau, Prime Minister of Canada, came out of the closet yesterday.

      Have you ever heard the political slogan Bring Back Better? Of course, you have. It’s the Biden/Harris platform title. Well, buckle your seatbelts folks and listen to the Canadian P.M. address the United Nations on the ‘great global economic reset’. Never let an emergency go to waste. And if you don’t have an emergency, make one.

      https://thepostmillennial.com/watch-trudeau-tells-un-that-pandemic-is-opportunity-for-global-reset/

    • “Vaccines cannot, today, be forced on American citizens by the government. But the government can impose consequences on those refusing to be vaccinated.”

      Excellent point by Jay. Let the refusers have their way, but they won’t be able to board a plane.

      One would hope that the courts would intervene in the case of egregious penalties for non-compliance, as recommended in the Jacobson decision, but don’t count on it. In 1905, the fine for refusing a smallpox vaccine during an outbreak in Cambridge, MA, was a mere $5. Today some are so rabidly intoxicated by the authoritarian mindset that they’d be happy to see refusers jailed.

  5. Thanks for this Mr Klar – we need more ppl like you. 😀

    Calling bull***t on slamming of John Klar op-ed. All he is saying is its unconstitutional for cryin out loud. Get yer damn shot – when I stopped getting vaccines I stopped getting sick – Fact: Majority of flu cases including deaths have received flu shot.

    I take care of my body at great expense tho many supplements are amazingly cheap. Hence rarely go to doctor or hospital – and have cured many ailments and disorders by knowing how the body works and using physiological basics – fear of the unknown is the biggest problem. I know, Ive been there.

  6. John, I’m not sure if a mandatory vaccine for ” CCP Virus ” would be constitutional or not,
    but I believe we have had other vaccines that were mandated have eradicated other types
    of viruses.

    First off the Wuhan virus is still in its infancy, we still do not understand all the ramifications,
    long term issues and we don’t have an approved vaccine and I’m not sure if it will ever be
    mandated or just a decision we make for ourselves !!

    I never use to get a flu shot either, I thought it was a waste of time it’s only the flu. A few years
    back I got the flu and was down & out for weeks in and out of the Doctors office.

    So if I contract the CCP virus, and we have an approved vaccine, it’s ” My choice ” to take a
    shot, then I will……………

  7. John, I generally agree with your outlook on issues. however, this one makes me wonder if you are drinking too much of the Trumpy Koolaid. Your long and, from your point of view, unassailable arguement begs only one question.
    As a 75 year old Republican and veteran who survived Vietnam era, during a perceived widespread national emergency, I ask you “Was the Draft unconstitutional”?

    • Regardless of one’s assessment of the legitimacy of the Vietnam War, the Constitution granted Congress the power to raise and support armies. This is for the obvious purpose of responding to foreign threats which might otherwise overwhelm and destroy the country.

      Yes, there are diseases that might overwhelm and destroy our country but we have tools to fight these, which include vaccination. It does not take 100% or 90% or 80% or even 60% vaccine uptake to make serious dents in the spread of diseases. Case in point: smallpox was eradicated in Africa and Asia not by mass vaccination, but by a targeted strategy of “ring” vaccination (of cases and contacts.) Those who led the smallpox effort, such as William Foege, were opposed to mass vaccination and believed it would lead to failure.

      On the other hand, we should never forget that the Jacobson decision, which did not force Henning Jacobson to get vaccinated (but only to pay a modest $5 fine), was used as a justification for state power to force sterilization in the 1927 Supreme Court decision, Buck v. Bell. The American eugenics stance in turn served as the basis for the Nazi eugenics program.

      It’s one thing to demand the defense of a country for the sake of the country. It’s quite another to enact medical tyranny for the supposed benefit of the citizens who must serve the state not only to defend it from foreign wars, but in addition to protect it from any perceived medical threats which may be real or, in the case of tyrannical designs or prejudices against certain groups, imaginary. This is extremely dangerous because medical tyranny has a track record of being closely allied with political tyranny (US eugenics, Nazi medical experiments and death camps) and is wholly unnecessary in light of the true threats which citizens, in their good sense, will react to appropriately and without coercion.

      Informed consent to medication and medical procedures should be a bedrock of human rights, as history is replete with examples of the horrors that occurred when these were disregarded.

      • Anyone that is okay with this vaccine, has not read a whole lot about the side effects of vaccines. Look at the 4 pages of side effects with any medication now, this will be no different.
        Go see how well Bill Gates vaccines have been doing for the Africans.

        There is a massive Anti-Vaxxer movement is this is not a new thing at all. It’s been growing for some 20 years now.. these people are not just dreaming this stuff up.There are many, many people that have had their good health destroyed from vaccines.
        My own Pediatrician, who was the senior member of the practice, did not like a lot of the newer vaccinations- I learned when I talked to him about all this at length.

        Go read some medical blogs and see the people suffering from these vaccines chatting in the comment sections, comparing notes, learning.
        I was on one the other day, there were over 800 comments on a single thread of young people with shocking medical problems, some were bedridden just from Gardasil.

        If people want to roll the dice and take this, that is their Right and I respect their choice. But this should not be mandated in any way, shape or form.
        We should not lose jobs, be banned from movie theaters, or be shunned in any way because we chose to not risk our lives with this new medication- or any other medication for that matter.

          • With the exception of Tetanus, I don’t do vaccines. I don’t get the flu shot and I haven’t had the flu in 38 years. I was pregnant with my son and he’s never had it. But our whole family has had COVID and did well I might add. But even if the government doesn’t make the vaccine mandatory will we be forced to get it if we want to participate in society? And what about those of us who have had the virus, will we be forced to comply to eat in a restaurant or go to a movie? I would feel a whole lot better about this if President Trump were in the White House for another four years. With a Biden administration I’m afraid the answer to my questions would be yes and then some.

        • Which is why my grandkids are not vaccinated and they are far healthier than their peers who are. My grandkids never miss school (that is when they’re allowed to go), but their vaccinated friends are out all the time, especially with things like severe eczema attacks, a known side effect of the childhood vaccines. But I do worry about the one that is on the way in January. That could be during a Biden presidency. Our state has philosophical waivers but the Democrats have been trying to get them removed for years. My grandkids don’t have a pediatrician because no one will take them unless they get vaccinated. They have no health insurance because their dad is self-employed and they can’t get on CHP because they are not vaccinated. So even in a state that still respects waivers, it’s a difficult row to hoe if you fight the forces and try to make decisions on what you think is best for you and your family.

        • Bill Gates, wonderful human, so concerning??? Laura you mentioned the money boy was in Africa. His fingers are in so much more.

          Gates In India was in a vaccine program that killed many citizens and was kicked out of that country.

          Gates has donated 100 million into a pharmaceutical company to develop a vaccine, believe Johnson & Johnson. Believe, it’s strictly an investment. How much of the price per dose does Gates get? Far more than his mere $100 mil.

          Comparing Gates to Elon Musk, Musk got his money mostly from Microsoft. Big difference as to their humanism. Gates a philanthropist and with devious investments. Kisses up to Warren Buffet. Musk is investing making advancements in Batteries, Tulsa, Space X and other ventures for future mankind.

          Gates gets more liberal media coverage. I’ll put my money on Musk any time. Noted that he had enough of CA and is moving his business to TX.

      • One example of the horrors is the Diphtheria epidemic which began in 1918 I think. The government forced mandatory vaccination on people in order to “stop the spread”. Problem was they started seeing people dying of the vaccine so they stopped the vaccinating. Then, in an effort to keep people in the dark about the horrible deed they had perpetrated, they added the numbers to the Spanish Flu deaths, which is why those numbers were so high. Then there is the fact that many died of secondary infections like bacterial pneumonia and not the flu itself. The fearmongers keep using the Spanish Flu numbers to scare people today and there are few out there who question things enough to dig deeper. I seem to spend most of my time doing just that these days. I’ve been told too many times not to believe what I see before my own eyes.

    • “Trumpy” (zheesh!) Kool Ade – Commie Fool Ade – I’ll take the Trump beverage – orange pls on the rocks shot O’Wild Turkey 101 -thanks enjoy your swampwater lol!

      *Four More Years Four More Years* MAGA-A! 😀

      • Well Stardust, I just crossed off Gary as a reliable source of information. Another Trump deranged comment from a RINO or a troll here to cause discord. Calling the president a name is the sure sign!

        • Sniffed out like Tangueray – it’s not hard – proudly wear Trump-Derangement on the sleeve – it’s their religion lol

      • Gary Cassady: “As a 75 year old Republican and veteran who survived Vietnam era, during a perceived widespread national emergency, I ask you “Was the Draft unconstitutional”?

        Ever the reliable propaganda disinformationalist go-to : The false argument. And big reveal as to opinions and worldview on many levels lol 😀

  8. We are talking about vaccinating something that has near 100% recovery rate!!
    Do we vaccinate for belly aches and for sore throats?

    We are not going to really save the lives of elderly people in nursing homes- they have to be very near death to even be IN A Nursing Home in the first place AND this are BY FAR, the people that are dying from this. We are not going to stop this either. The flu goes through nursing homes and does this every single year and this is never going to change.
    This has all become a sick cult-like obsession just like thinking we are going to save the planet from banning straws.. it’s all NUTS!!

    People that are not healthy people are at risk, but they have ALWAYS been at risk.
    Not being healthy means you are at risk, welcome to the world, this is not new.
    You have a higher likelihood of catching *Anything* that comes around.
    You can then have complications from that because, guess what, you are not healthy.
    Diabetics can die from cutting their toenails too short, so should we ban toenail cutting?
    Do you know how many people die every years from falls? so should we say no one over age 55 should stand??
    Why are we driving down the highways? why are we doing anything at all? it’s all dangerous.
    LIFE IS FULL OF RISK and none of this is new, and we are not going to change any of this ever.
    So why are we wasting our time and destroying lives and our society over this?

    It’s as though someone just decided that water is wet, well hello, water has always been wet and it’s always going to be wet.

    Every single coronavirus there is was Novel back at one point- and we just marched right on through it and no one knew all of this.
    What did you hear about the Swine Flu? or the Bird Flu?
    We need to just do the best we can as individuals, and live with this.

    Good grief, have you seen what Dr. Tom Woods is saying?
    The deaths and the ripple effects from these lockdowns is off the charts. People are going to starve all over the planet in the year 2020 because the food chain is being so destroyed. Look at what we are doing here in this insane over reaction!!

    Go take a look what the call centers for your suicide prevention are doing right now.
    Go look at what is going on with depression, suicide, drug overdoses.
    Think about our young kids growing up right now, they are have been walking around seeing nothing but eyes on people for 8 months now.
    I am FURIOUS!!

    This all is about CHINA, politics, money, power, control, money to be made on vaccines and the fall out of the diseases and mental illness being created right now FROM WEARING MASKS, Lockdowns and watching our lives be destroyed, watching our states being destroyed, our schools, the entire future for the next generations.
    And guess where all those meds are made- China!!
    CHINA just hit us with this Flu, and now our government is making giant BIG Pharma patients of all of us for CHINA in their sick over reaction.

    You should be advocating to END THIS, ALL OF IT.
    We have been entirely stripped our of Constitutional Rights over something with almost a 100% Recovery Rate.
    There is a 25% Uptick right now in Europe of people dying in their homes because they are not getting their vital medical treatments. What do our numbers look like?

    When it’s all said and done, this is going to be seen as a genocide- because people that know what the hell is going on right now are saying this is NOW.
    All those Doctors that signed the Great Barrington Declaration, why do you think they did this? because they know what I am saying is right.
    We need to end this.. write THAT Article!!

    • Wonderful commentary. I could have written it myself. But you saved me from having to do it again, since I’ve done it a ton of times since this nonsense started. While COVID-19 is not a hoax, nearly all of the reaction to it is. My whole family has had the virus from ages 33 to 73 and, since we are all in good health, we endured and survived it quite well. My husband (73) has had pneumonia three times since we’ve been married. He is the only one of us who had the COVID pneumonia. By the time he got concerned enough to go to the doctor, he was nearly over it himself. So out of three bouts of pneumonia, the COVID pneumonia was the only one that didn’t require extensive medical intervention. My two sons and daughter-in-law just had fevers and exhaustion for about a week. Mine manifested itself as a weird sinus infection that played havoc with my claustrophobia. I had no lung issues but I still felt I couldn’t breathe. I was given Azithromycin as was my husband, and, with the help of nasal spray, I made it through. The rest of the family just used over the counter stuff and slept a lot. My two grandkids, 8 and 10, had nothing at all.

      It looks to me like all the “uptick” is to prevent us from enjoying the holidays so they can blame it on President Trump. If masks and distancing work, why are the numbers going up? Or are they working and their lying about the numbers. The Democrats seem to want it both ways. They keep talking about cases and hospitalizations and overrunning the hospitals again (which we never did in the first place). I’ve discovered that most of the “hospitalized” cases were in fact outpatient so they weren’t filling up any hospital beds, especially ICU. The virus is less viral and will continue to be as it hangs around. The attempt to outrun a virus is a joke too many are buying into. Including sensible people I’m afraid. I saw the other day where a hospital told the overreacting powers that be (and I paraphrase), cool your jets, we’ve got this. Been there before and know just what to do. I’m sure the fearmongers didn’t like that one bit.

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