SPECIAL REPORT: Constitutional Law Research and Analysis of Forced Vaccination During Declaration of Martial Law, War, Outbreak or Pandemic

By Greg Glaser, Attorney at Law
Center for Advanced Medicine and Clinical Research
(Also at Scribd)

Constitutional Law Analysis 2010
Pandemic Response Project

Brief Excerpt from Introduction: Is it lawful for government powers in a Republic, like the United States, to force vaccination or quarantine in the event of declared martial law, war, outbreak or pandemic? No, in a Republic, the individual rights of humans to be “peacefully natural” categorically defeat a government‘s emergency powers, unless the government can lawfully establish any of the following….

To: Professional Panel of the Pandemic Response Project
From: Greg Glaser, Attorney at Law
Date: October 15, 2010

Re: Constitutional Law Research and Analysis of Forced Vaccination During Declaration of Martial Law, War, Outbreak or Pandemic

TABLE OF CONTENTS

I. QUESTION PRESENTED
II. BRIEF ANSWER
III. ANALYSIS
…..A. In A Republic, Absolute Power Is Absolutely Prohibited
…..B. New World Order
…..C. The Unique Traits Of An Infected Person
…..D. American Constitutional Protection
……….1. Due Process
……………..a. The Scope of Jacobson v. Massachusetts – Unlawful, …………………Unconscionable, or Legal?
……………..b. Post-Jacobson: The Court Consistently Grants Due Process ………………….Protection from Forced Medical Procedures
…………………….1. The Short Tenure of Jacobson
…………………….2. Due Process Requires Consent in Medical Procedures, and ………………………..Allows for Self-Quarantine
……………………………A. Consent Is Required
……………………………B. Self-Quarantine Is the Constitutional Remedy in ……………………………… Balance with the Police Power
……….2. Right to Be Secure in Your Person – 4th Amendment
……………a. The Right to Privacy Protects Individuals from Forced Medical ……………… Procedures
……………b. The Right to Privacy Also Respects Self-Quarantine in the ………………. Wilderness
……….3. Freedom of Religion
IV. CONCLUSION

…

I. QUESTION PRESENTED

Is It Lawful for Government Powers in a Republic, Like the United States, to Force Vaccination or Quarantine in the Event of Declared Martial Law, War, Outbreak or Pandemic?

II. BRIEF ANSWER

No, in a Republic, the individual rights of humans to be “peacefully natural” categorically defeat a government‘s emergency powers, unless the government can lawfully establish any of the following:

…..(a) Right of self defense via police power – By one view, the right of self-defense can only be proven through a person-by-person inquiry. Courts here examine whether the physical danger of communicable disease is so potent that another individual in causal proximity to the infected individual would have the lawful right to immediately immobilize or kill the specific infected individual, without trial, as a matter of reasonable self-defense.[1]

However, there is another view that goes even beyond self-defense, claiming the State “police power”[2] allows government wide discretion to preemptively promote “the public health” through “reasonable means.” [3] Unfortunately, tyrannical governments have routinely abused this latter view (especially in the last century) to justify “mass quarantines of unpopular groups,” “indefinite detentions of the ill,” and “nonconsensual medical procedures.”[4] Accordingly, barring a civil and intellectual revolution of law in the present generation, it is expected that modern military-medical establishments will continue to define “police power” in a self-serving manner. This means that where panic deems it expedient, most governments will invoke mandatory quarantines, forced vaccinations, and non-consensual medical procedures, regardless of dissent that questions their lawfulness.

…..(b) Legitimate prisoners – this is a generalized inquiry, where the individuals are already legitimate prisoners or detainees (consistent with due process of law) for crimes other than simply refusing vaccination, and the circumstances of their incarceration or detainment pose a material threat of disease communicability;[5] or

…..(c) Enters government property or populated public area – this is a person-by-person inquiry, where the individual enters (or expressly states an intention to enter) government property (such as a public building or park, other than natural lands / wilderness) or a populated public area in a manner posing a material threat of disease communicability.[6]

III. ANALYSIS

A. In a Republic, Absolute Power Is Absolutely Prohibited

According to natural law, common law, the U.S. Constitution, and international law, a government may not exercise absolute power over any fundamental right held by a human being.[7] Instead, checks and balances, individual liberty, and due process are all required in specific and direct measure. So for example, a government may not:

(1) make it a crime to engage in peaceful actions necessary for living, like sleeping;[8] or

(2) make it a crime to simply exist in a certain natural way, like being Jewish or naked[9] or being unvaccinated.

In a hypothetical Republic, citizens do not permit any ruler to exercise absolute power over a fundamental right. Unfortunately, in our imperfect world, otherwise free citizens routinely fail to meet their civic duty of maintaining checks and balances on government. Therefore we see two birds – personal freedom and the Republic – fall with one stone. To continue the analogy, the hunters who throw stones rule by Fascism, Communism, Dictatorship, Monarchy, Police State, or a hybrid of these.

Ideally, citizens remain aware of basic legal rights and limits. For example, most people acknowledge that the government cannot lawfully make it a crime to have brown eyes.

Why? For starters, it‘s because there is no way for a brown-eyed person to safely navigate the rule to avoid punishment. Even to require him to wear sunglasses is to make being peacefully natural a crime. Or more forcefully, where a rule punishes a peaceful man for being natural, it is not law, but a declaration of absolute power by a tyrannical government body or agent.[10]

A legal right only becomes “inalienable” [11] when it cannot be separated from a peaceful man without destroying him (i.e., right of self-defense, or right to exist naturally). Not only does this principle serve as a pillar for both classic and modern law, it even resides famously in popular culture, with perhaps the most well-known reference in George Orwell‘s novel 1984, “Thoughtcrime does not entail death. It is death.”

As described in detail below, absent the commission of an affirmative criminal action, a man cannot lawfully be subjugated to oppressive government force – fine, incarceration, surgery, vaccination/drugging, slavery, or even the matter described by Orwell – mind control.[12]

Researchers of law and government often find it quite refreshing to ponder how the American system of government exists on paper, preventing any one of the three branches (Legislative, Executive, Judicial) from exercising absolute power over citizens. It is said the American branches are not only disallowed from exceeding their powers and trampling individual rights, but they are even disallowed from conceding their legitimate powers and responsibilities to one another. These are the two primary checks and balances designed to help ensure that no political or military regime is permitted to materially infringe inalienable rights.

Let us ask an interesting question to determine the scope of a Republic. Imagine that a meteor is on a collision course with earth, and the only man with the knowledge to divert its course is a man named Clark Kent, living in the Republic of Kansas. Now the question – can the government use force against Clark, such as drugging, torture, or mind probing, to force him to save earth? In a Republic, the answer is a resounding no.

Indeed, not even the American Commander in Chief acting in time of war, martial law, outbreak or pandemic, can trump inalienable rights. The President simply cannot have the power; or if he does, Americans cannot claim to live in a Republic.

Of course, history shows that keeping a Republic is not easy in a world of modern militaries and fear. It‘s a self-perpetuating cycle – the more that people and institutions take advantage of one another for purposes of undeserved power, the more that citizens lose the ability to self-govern. So unfortunately, it appears the next round of bioterrorism, from whatever source derived, will put the modern American “Republic” to a great test.

B. New World Order

Our sad reality is that many kinds of forced contamination are already being implemented today. Unprosecuted crimes against humanity are carried out daily by myriad agents within the world‘s modern military-industrial complexes, and much of the public remains under-informed, if not in disbelief at the magnitude of “the New World Order.” [13]

And yet the evidence is overwhelming – over many generations elitists have been working covertly within select government agencies, multinational corporations and faux-humanitarian organizations toward the goals of drastic population reduction. [14] In particular, independent media has found overwhelming evidence of corruption/crime in chemical spraying,[15] depleted uranium,[16] food contamination,[17] and public water contamination.[18]

The evidence suggests that vaccines are also part of the greater conspiracy for world domination.[19] Indeed, recent reports show nanotechnologies are being developed to spray vaccines directly onto entire population centers.[20]

Unfortunately, motivating people to conduct independent research into conspiracy evidence is a difficult task. By contrast, mass-media propaganda is quite easily digested through superficial labeling: conspiracy theory, Republican, Democrat, capitalism, democracy, terrorism. It makes for easy thinking to adopt the mass-media labels and issues, and it’s routinely rewarded in both workplace and social circles regardless of truth or merit.[21]

Is it really conspiracy theory that self-proclaimed elites are actively working to reduce the population to promote their idea of a future utopia that “saves” the world from overexploitation? [22]

Substantial and often credible evidence has been presented: (A) by medical researchers and physicians evidencing that vaccines cause substantial physical harm, and have minimal or no effect in preventing disease; [23] (B) by medical researchers and physicians that all communicable diseases can be treated or cured with natural remedies; [24] and (C) by independent media that vaccines are designed and produced by a cabal of elitists (working through select government agencies, multinational corporations and faux-humanitarian organizations) for purposes of depopulation.[25]

As the links in this section demonstrate, history shows us that governments routinely do exercise absolute power, and the world has been filled with injustices in the pursuit of undeserved power. In America, citizens are generally free to recognize or ignore these harsh lessons that even though governments find something is “legal,” this does not alone make it lawful/just.[26]

C. The Unique Traits of an Infected Person

There does not appear to be a single modern government on earth that has adopted a naturopathic policy for pandemic response (i.e., making natural remedies available to the public in the event of a crisis).

From a naturopathic perspective, an individual with a communicable disease should be isolated (preferably through self-quarantine), provided with access to natural remedies, and then monitored safely from a distance and/or with special protective gear. By contrast, modern governments have tended to adopt the recommendations of the biochemical and military professions to stockpile vaccines, create quarantine concentration camps, build up GMO food supplies, and address pandemic militarily. America, obviously, meets this latter description.[27]

At one extreme, a man infected with an airborne contaminant entering his town square is analogous to a psychotic gunman spraying bullets. At the other extreme, an infected person who voluntarily self-quarantines on private acreage is probably a frightened naturalist hoping not to be hunted down by his own species. And so once again, it appears the next round of bioterrorism, from whatever source derived, will put the modern American “Republic” to a great test.

D. American Constitutional Protection

The three most prominent Constitutional protections preventing forced vaccination are:

* 5th Amendment Due Process of Law
* 4th Amendment Privacy / Right To Be Secure In The Person
* 1st Amendment Freedom of Religion

We begin our analysis with due process because (1) it has been accepted by the Supreme Court as a fundamental check on all government power in America, and (2) the most prominent vaccine rights case arose as a due process challenge before the Supreme Court.

…..1. Due Process

It is well established constitutional law that all States, and the Federal Government, are required to follow the Fifth Amendment, so the fundamental safeguards of due process are well-enshrined in American jurisprudence to protect against tyranny. [28]

Scholars agree that the most prominent case regarding the government‘s defined/limited power to vaccinate was Jacobson v. Massachusetts, [29] a case interpreting ‘due process of law.’ With the ebb and flow of modern history, Jacobson too has been reinterpreted by different political and military regimes.

For example, Oliver Wendall Holmes once extended the holding in Jacobson to justify the forced sterilization of a mentally retarded woman, because, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…. Three generations of imbeciles are enough.” Buck v. Bell (1927) 274 U.S. 200.

The Buck case was thereafter rejected by the Supreme Court and ostracized by the public, or to be more quaint, it was found to be an artifact of a bygone era. [30] All the while, the Jacobson opinion on which it was based still holds an evolving clout, especially in certain military circles where the use of force is often viewed as more innocuous, protective, and paternal.

Perhaps not surprisingly, in the wake of the World Trade Center attacks and sweeping Patriot Act fervor, the Jacobson opinion was ‘reinterpreted’ by certain military and defense forces (in cooperation with university bioterrorism researchers), in an attempt to reinstate Holmes’ discredited interpretation in Buck advocating “compulsory vaccination.” [31]

This militaristic vaccination movement tends to push for federal preemption to supersede State laws allowing citizens the right to self-quarantine. [32] Accordingly, “preemption” can be seen as a bellwether, showing the federal government edging closer to exercising absolute power over a natural man. In other words, when there is absolutely nothing a peaceful civilian can do ahead of time (i.e., self-quarantine) to avoid forced vaccination, then we are witnessing a government exercising a form of absolute power over the human body.

There is therefore today a special responsibility vested in the judicial branch (constitutional lawyers included) to ensure that modern defense forces do not write themselves a license to hunt down the peaceful and natural members of their own species. Indeed, it is well documented that individual police officers and government officials have an affirmative duty to disobey an “unlawful” order from a commanding officer, and the predominant view is that “unlawful” means unconstitutional or ‘against human conscience.’ [33]

……………..a. The Scope of Jacobson v. Massachusetts – Unlawful, ……………….Unconscionable, or Legal?

The case of Jacobson v. Massachusetts concerned two conscientious objectors to vaccination – a preacher and his son from Cambridge, Massachusetts. They were objecting on constitutional grounds to a local law requiring that any residents who did not agree to accept small pox vaccinations must pay a $5 fine. Quarantine and forced vaccination were never at issue in the Jacobson case. [34]

Moreover, as we read all of the Jacobson case, we see several statements and rulings upholding individual liberty in a manner that would trump forced quarantine and vaccination. However, this has not stopped certain lawyers and non-lawyers from taking case quotes in isolation and out-of-context. Indeed, the two out-of-context excerpts from Jacobson that lend themselves most favorably to militaristic vaccination by force are probably:

“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.” [35]

“The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body….” [36]

But again, we are cautioned to read the Supreme Court opinion in Jacobson carefully and in context, because it contains several constitutionally necessary legal statements restricting its ruling and scope:

“We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’” [emphasis added] [37]

…

“The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.” [38]

Moreover, as we continue to read Jacobson in context, we see several avenues where individual liberty trumps forced vaccination:

…..(1) Jacobson does not apply – The Jacobson court acknowledges the existence and supremacy of natural law when it states, “There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.” [39] As highlighted above, individual liberty is secured by natural law, above the limited Constitutional doctrines to which Jacobson limited its holding.

…..(2) Jacobson cannot be interpreted broadly without causing unconstitutional consequences – Reading the Jacobson opinion too broadly would authorize government actions beyond constitutional authority. For example, taking statements in isolation leads to absurd conclusions where the Court would appear to unconstitutionally give the Legislature absolute power. For example, read this excerpt in isolation, “…the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.” [40] But when we read the whole opinion, we see the Court expressly recognizing its constitutional role to verify whether a legal rule comports with the Constitution. [41]

…..(3) The Jacobson Court used an outdated test – When a law materially infringes a fundamental right to bodily security, it must be narrowly tailored and necessary, otherwise it is unconstitutional. [42] But the Jacobson Court applied an older and more permissive test based on the old police power doctrine before the civil rights era – whether the law had only a “substantial relation” to protecting the general welfare, and whether it was a “reasonable and proper exercise of the police power.” [43] Therefore, the Jacobson holding does not comport with current constitutional doctrine for public health matters established between 1953-1969, which even the military-medical establishment recognizes. [44]

…..(4) Jacobson expressly qualified its holding to ―the statute as interpreted by the state court, which focused only on an early 20th century smallpox vaccine. The Court highlighted that it was not deciding “every case involving the control of one‘s body.” [45] This is especially true where the court acknowledges the limited evidence before it: “It is to be observed that when the regulation in question was adopted smallpox…was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation, -and nothing is asserted or appears in the record to the contrary….” [46]

Today, modern vaccination is demonstrably different. As discussed in more detail below, entire medical and research institutions have arisen around evidence of vaccination dangers as a nefarious tool. Accordingly, as the holding in Jacobson is focused on preventing “injury that may be done to others” through “necessary” measures, [47] it is necessarily questionable whether Jacobson can lawfully support mandatory vaccination today. At the very least, the matter may be subject to renewed legal challenge. [48] Moreover, the Jacobson Court was only concerned with a local vaccination rule (because the plaintiff was free to move to another town to avoid vaccination). [49] But today, if federal preemption is ever allowed to take root, then mandatory vaccination would be unavoidable, and therefore de facto violative of Jacobson.

…..(5) Jacobson further qualified its holding by stating it was not prescribing any absolute rule – “we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death.” [50] This qualification also suggests the usefulness of evidence that vaccines are, in reality, instruments of causing harm in a ‘militaristic new world order.’

It appears that America is at a crossroads on Jacobson. One direction is leading toward the protection of individual liberty and unbiased scientific research on vaccine harm. But the other direction (the current path) leads to fear and control of the masses.

With this crossroads in mind, the following excerpt from Jacobson shows the difficulty of presenting expert evidence in court to rebut the legislative will, “If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions [regarding the dangers of vaccines], it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.” [51]

But, as demonstrated above through the five points above, Jacobson has been severely limited if not entirely overruled. Therefore, litigants should be able to prevail against forced vaccination laws by presenting substantial expert evidence as described above in section III.B: [52]

(A) reports by medical researchers and physicians evidencing that vaccines cause substantial physical harm, and have minimal or no effect in preventing disease, [53]

(B) reports by medical researchers and physicians that the communicable disease(s) at issue can be treated or cured with natural remedies, [54] and

(C) by independent media that vaccines are designed and produced by a cabal of elitists (working through select government agencies, multinational corporations and faux-humanitarian organizations) for criminal purposes of depopulation? [55]

……………..b. Post-Jacobson: The Court Consistently Grants Due ……………….Process Protection from Forced Medical Procedures

…………………….1. The Short Tenure of Jacobson

Jacobson reached a pinnacle of breadth in 1922, with the Supreme Court case of Zucht v. King, but has been diminished since then. [56]

In Zucht, a city required vaccination for all students as a condition of going to public school. The 1920s Court found in favor of the government, ruling that “Jacobson v. Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccination.” He continued: “[t]hese ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”

…………………….2. Due Process Requires Consent in Medical …………………………Procedures, and Allows for Self-Quarantine

……………………………A. Consent Is Required

Not surprisingly, forcing a needle into a natural and peaceful man without his consent is violent and unlawful. Unfortunately, modern world history shows military regimes engaged in exactly this practice, along with a host of other shocking nonconsensual procedures. [57]

But in spite of the abundance of unlawful activity in the new world order, it is actually well-settled constitutional law that there is a fundamental right to refuse medical treatment, even life-saving treatment.58 Even for soldiers, decisions to participate in research or to use experimental and investigational drugs or “therapies” require the soldier‘s informed consent. [59, 60]

As Mariner explains in reference to Supreme Court holdings, “Even in an emergency, when there is a rapidly spreading contagious disease and an effective vaccine, the state is not permitted to forcibly vaccinate or medicate anyone. The constitutional alternative is to segregate infected and exposed people separately [allowing self-quarantine] to prevent them from transmitting the disease to others.” [61]

The Supreme Court has long recognized that “involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor v Donaldson, 422 US 563, 580 (1975). And some justices have called freedom from such confinement fundamental in nature. Foucha v Louisiana, 504 US 71 (1992).

Mariner, et al. further explains:

“While it has not decided a case that involved isolation or quarantine for disease, it has held that civil commitment for mental illness is unconstitutional unless a judge determines the person is dangerous by reason of a mental illness. [citations omitted]. Assuming, as most scholars do, that the law governing commitment to a mental institution also applies to involuntary confinement for contagious diseases, the government would have the burden of proving, by “clear and convincing evidence,” that the individual actually has, or has been exposed to, a contagious disease and is likely to transmit the disease to others if not confined [citations omitted]….

“In cases that involve civil commitment or involuntary hospitalization for mental illness, the Court has required the state to prove—by clear and convincing evidence—that a person is mentally ill and that the illness renders the person dangerous to others. Foucha v Louisiana, 504 US 71 (1992), Carey v Population Services Intl, 431 US 678 (1977), O‘Connor v Donaldson, 422 US 563, 580 (1975), Addington v Texas, 441 US 418, 425 (1979), Vitek v Jones, 445 US 480, 494 (1980)….

“When the HIV epidemic began in 1981, these principles from the 1970s reminded legislators at both the state and federal levels that people could not be involuntarily detained simply because they had HIV infection. Only a few individuals who imminently threatened to infect other people by deliberate or uncontrollable behavior would meet the constitutional test. More recently, the same approach has been used by lower courts in some cases that involved people who had active, contagious tuberculosis. City of Newark v JS, 279 NJ Super 178 (1993). Green v Edwards, 164 WVa 326 (1980).” [62]

With these important principles recognized, we also see that under traditional law enforcement principles, all citizens have the right of reasonable self-defense. [63] This is an important exception to the consent doctrine discussed above.

By one view, a citizen is free to kill an infected person wherever the infected poses a clear and present danger of deadly or substantial physical harm to another human being.

There is also a controversial legal history showing the State may exercise the right of self-defense to a certain extent to protect individuals. [64] As Richards has confirmed, few cases have challenged the constitutionality of state actions taken to protect citizens from a communicable disease. [65]

……………………………B. Self-Quarantine Is the Constitutional …….…………………….… Remedy in Balance with the Police Power

As set forth in detail above, due process of law is a fundamental check on government, to prevent any person or branch from exercising absolute power. So, the Legislature cannot simply declare it a crime to refuse vaccination, as there is no alternative to refusal (other than leaving the country).

That is why many states have addressed this situation by granting to conscientious objectors the right to self-quarantine. [66] However, in a federal preemption situation, where the federal government requires mandatory vaccination and also prohibits self-quarantine, then the last bastion of due process (should all other safeguards fail) allows the natural man safe passage on his natural way out of the jurisdiction. [67, 68]

Indeed, in the event of world government (one jurisdiction), self-quarantine would be even more essential to due process to keep the police power in check.

As highlighted above, “police power” is a legal doctrine that describes the general authority of the government to enforce health and safety laws so long as those laws do not violate the constitution. [69] The police power is a useful tool for law, order, and promoting the common good (environment, economy, public health). But like all tools in the hands of men, it can be used for both peaceful and destructive purposes.

The police power remains limited by fundamental rights retained by the people. [70] So for example in America, the police are bound by fundamental constitutional principles like jurisdiction, due process of law, proof of harm, privacy and warrants, reasonableness and proportionality, jury trial, prohibition on cruel and unusual punishment, etc.

Since the founding of America, States have generally been allowed to quarantine for medical reasons through the exercise of the police power. [71] But as described above, this power is also one historically maintained in balance with the freedom and intellect of the people. [72]

And so it is again that we revisit our theme – the next round of bioterrorism, from whatever source derived, will put the modern American “Republic” to a great test. Tellingly, legal processes have already been implemented to usurp national sovereignty in favor international health dictates. [73]

…..2. Right to Be Secure in Your Person – 4th Amendment

………..a. The Right to Privacy Protects Individuals from Forced …………….Medical Procedures

In addition to due process, the 4th Amendment right to privacy also protects a natural man‘s inherent exemption from forced medical procedures (i.e., vaccination, surgery) in any jurisdiction. [74]

Moreover, the fundamental right to be secure in your person and home is inherent and requires no filings or notices. [75] Indeed, the right has even been found inalienable in certain circumstances involving a peacefully natural person, [76] and at least important enough to trigger strict scrutiny so that regulations abridging the right must be necessary and narrowly tailored. [77]

It is well established constitutional law that all States, and the Federal Government, are bound by the Fourth Amendment.[78]

However, it is unclear to what extent the State police power might be used to trump these established rules, as judges frightened by disease are routinely deferential to the State. [79] And as the Supreme Court warned in Terry v. Ohio, 392 US 1, 34 (1968), “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

Many States of the Union provide statutes and procedures governing the individual‘s right to be free from vaccination. Generally these procedures concern filings and notices when interacting with schools, hospitals, etc. However, because the 4th Amendment trumps any conflicting state law, all these state statutory exemptions and procedures are categorically optional. They may be useful to help citizens exert their inherent rights, but they can never be necessary to the existence and enforcement of those inherent rights.

So for example, Kansas may pass a law that requires citizens like young Clark Kent to file a vaccine exemption form before attending public school. This is because public school is a public benefit provided by the State, and filing a form is only a small (narrowly tailored) procedure. However, the 4th Amendment would prohibit Kansas from requiring that Clark provide a vaccine exemption form to attend private school. The 4th Amendment also prohibits Kansas from forcibly vaccinating Clark, a free and peaceful man.

……………b. The Right to Privacy Also Respects Self-Quarantine in ..………….... the Wilderness

Along with due process, and in accordance with the restrictions set forth above, the right to privacy also protects the individual‘s right to seek refuge in the wilderness without being hunted down for inoculation or extermination.

At the outset it must be noted that there is a diminished privacy expectation for persons entering government property or a populated public area. The general standard used by courts comes from Katz v. United States, 389 U.S. 347 (1967), and it says the right of privacy extends where a person has a “reasonable expectation of privacy” – the expectation must be one that is generally accepted by society, not subjectively by an individual.

Fortunately, it is well settled that forest and wilderness areas (even where owned or managed by the government) are areas where privacy is respected, as wilderness areas are held in the “public trust” [80] for the benefit of the people exercising their traditional rights. [81] Wilderness laws commonly recognize the rights of indigenous peoples to continue to make traditional use of and/or live in wilderness areas. [82] In the United States, the Wilderness Act of 1964 expressly recognizes that one of the purposes of the law is to protect “solitude” for its visitors practicing naturalism during their stay. [83]

Accordingly, in the case of pandemic, there must be a person-by-person inquiry regarding whether an individual enters (or expressly states an intention to enter) government property (such as a public building or park, other than natural lands / wilderness) or a populated public area in a manner posing a material threat of disease communicability.

…..3. Freedom of Religion

Freedom of religion is a fundamental right protected by the 1st Amendment. [84] Because the right is inherent, the preparation or filing of a vaccine exemption form (although useful)[85] is not required to assert the right. [86] This is because laws that attempt to require the filing of government papers before the exercise of a fundamental right are categorically unconstitutional. [87]

Mandatory vaccination or medical procedure implicates the 1st Amendment. As the Supreme Court opined in Thomas v. Review Board of the Indiana Employment Security Division, 450 U. S. 707, 718 (1981), “Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.”

Interestingly though, with regard to vaccination, the 1st Amendment may not provide as much protection as other fundamental rights because, as set forth in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993), “our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Or as the Court concluded in Employment Development Department v. Smith, 494 U.S. 890, accommodation for religious practices incompatible with general requirements must ordinarily be found in “the political process.” [88]

All the same, as set forth above, because vaccine laws are not garden variety health-and-safety legislation, like traffic laws, in a pandemic the Court may require the implementing regulations be narrowly tailored and supported by a compelling state interest. [89]

But even when a compelling interest is required, the Supreme Court has often been willing to rule against religious freedom to ensure Americans are ‘on-the-grid.’ For example, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court found that the requirement for Amish teens to go to ninth and tenth grade was a compelling government function. See also, United States v. Lee, 455 U.S. 252 (1982), finding that the requirement for the Amish to pay Social Security taxes was a compelling government interest.

Ideally, the protections of the 1st Amendment can be utilized to add further support to the 4th and 5th Amendment protections (discussed above), which uphold the right to self-quarantine. But here again we revisit our theme – it appears the next round of bioterrorism, from whatever source derived, will put the modern American “Republic” to a great test.

IV. CONCLUSION

There is no conflict between the following rights: (1) the right to exist in a peaceful and natural manner, (2) the right to reasonable self-defense, and (3) the reasonable exercise of the police power by the State.

Only when men seek to control others unfairly does the heavy hand of the law call for redress against a harmful actor, whether an individual or a State. Established evidence chronicling the militaristic and conspiratorial ‗new world order‘ shows the world is suffering from systemic abuses of power.

Accordingly, the blessings of liberty and protections of law and order are of great value today, to guard societies not just from pandemic, but from the fear that rejects natural remedies and sustains pandemic through abuse of power.

Notes

1. Both traditionally and logically the police power is derived from the individual‘s right of reasonable self-defense. See e.g., E. Richards, The jurisprudence of prevention: the right of societal self-defense against dangerous persons, Hastings Constitutional Law Q. 1989. pp. 329–92. D.M. Dubber, The Police Power: Patriarchy And The Foundations Of American Government. Columbia University Press (2005). See also, Plumley v. Massachusetts, 155 U.S. 461, 478 (1894); Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997); Jacobson v. Massachusetts (1905) 197 U.S. 11, 27; State Constitutional protections, such as California Constitution Art I., Sec. 1 (“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty… and pursuing and obtaining safety, happiness, and privacy.”); Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, Texas Review of Law & Politics, (2007).

Notably, the traditional legal doctrine of ‘self-defense’ should be distinguished from the separate doctrine called ‘anticipatory self-defense.’ The former is a straightforward doctrine, fundamental to human existence and law. The latter is a more hybridized and technical creature: valuable in some key respects, but too often used by ‘the powers-that-be’ to justify international war games and political hegemony of self-proclaimed elites. See e.g., Full Spectrum Dominance: Totalitarian Democracy in the New World Order, by William Engdahl; The Globalization of Poverty and the New World Order, by Michel Chossudovsky.

2. “Police power” is a legal doctrine that describes the general authority of the government to enforce health and safety laws so long as those laws do not violate the constitution. See e.g., Leisy v. Hardin (1890) 135 U.S. 100, 127 (“…the ‘police power,’ – that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime.”)

3. For citations, see section III.D.1.b.2.B above, entitled “Self Quarantine Is the Constitutional Remedy in Balance with the Police Power.”

4. See, Wendy K. Mariner et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am J. Pub. Health 581, 588 (2005); Richards, supra.

5. See e.g., Washington v Harper, 494 US 210 (1990). The Harper Court recognized that “[t]he forcible injection of medication into a nonconsenting person‘s body represents a substantial interference with that person’s liberty.” Id. at 229; But it determined that substantive due process permitted this intrusion on the liberty of a prisoner where “a mental disorder exists which is likely to cause harm if not treated. . . .[and the treatment] is in the prisoner‘s medical interests, given the legitimate needs of his institutional confinement.” Id. at 222; see id. at 227 (holding that antipsychotic drugs may be administered if the inmate is “dangerous to himself or others and the treatment is in the inmate‘s medical interest”).

For more prisoner cases, see O’Lone v. Estate of Shabazz (1987) 482 U.S. 342, 349; Thornburgh v. Abbott (1989) 490 U.S. 401; Turner v. Safley (1987) 482 U.S. 78, 89; Martin v. Ohio (1987) 480 U.S. 228, 236; MacMillan v. Pontesso (9th Cir.2003) 73 Fed. Appx. 213, 214; Rowe v. DeBruyn (7th Cir. 1994) 17 F.3d 1047, 1052–53; Ex parte McGee (1919) 105 Kan. 574, 581; Ex parte Fowler (1947) 85 Okla. Crim. App. 64, 184 P.2d 814, 820; Ex Parte Company (1922) 106 Ohio 50, 139 N.E. 204; In re Dayton (1921) 52 Cal. App. 635; In re Arata (1921) 52 Cal. App. 380, 383.

And for comparative purposes, here is a useful discussion of prisoner rights in the context of constitutional jurisprudence, Rejecting “Uncontrolled Authority over the Body”: The Decencies of Civilized Conduct, the Past and the Future of Unenumerated Rights, by Seth F. Kreimer, University of Pennsylvania (2007).

6. See e.g., Katz v. United States, 389 U.S. 347 (1967) (establishing test for reasonable expectation of privacy in public places); Martin v. Waddell, 41 U.S. 16 (1842) (seminal case upholding the doctrine of the public trust); C. Kormos, Handbook on International Wilderness Law; University of Montana Wilderness Institute (2008).

7. Natural Law – According to the bible, our natural rights and abilities are both given and taken by our heavenly Father. Those who trample natural rights and abilities therefore run the risk of divine judgment. And for those who prefer a secular justification, as described in detail by University of Chicago Law Professor Richard Epstein, natural law is not an intellectual fiction. Rather, it has provided a material and moral basis of actual civil and criminal law throughout history, which is today extensively represented in the modern jurisprudence of America and abroad. Epstein further explains that natural law derives its origin not from laws floating in nature, but rather to established natural experiences of humans over time, such as the need for food, shelter, and justice.

See Principles for a Free Society, by Richard A. Epstein (1998); Natural Law and Natural Rights, by John Finnis (1980); Jacobson v. Masschusetts, 197 U.S. 11, 29 (1905) (“There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.”); Poe v. Ullman, 367 U.S. 497 (1961); Powell v. Pennsylvania, 127 U.S. 678 (1888); U.S. v. Cruikshank, 92 U.S. 542 (1875); Magna Carta (1215); Const. of the World Health Organization, 62 Stat. 2679, 14 U.N.T.S. 185, 186 (entered into force Apr. 7, 1948) (“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.”); U.S. Constitution, Amendment IX, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Common Law – See e.g., right of consent, prohibitions on unreasonable force, freedom from arbitrary arrest. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (stating that the common law carefully guards the right of every individual “to the possession and control of his own person”).

U.S. Constitution – See e.g., separation of powers, Bill of Rights.

International Law – See e.g., UN Universal Declaration of Human Rights; Geneva Convention; Declaration of Helsinki; Nuremburg Code. In the words of Nuremberg Tribunal Chief Prosecutor Robert K. Jackson in 1948, “The very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state.” See also, Avalon Project, Yale Law Library, The International Military Tribunal for Germany, Contents of the Nuremberg Trials Collection (2010).

8. Compare sleeping while driving, which is neither necessary nor peaceful and therefore appropriately punishable.

9. Ordinances prohibiting nakedness are of questionable lawfulness, but arguably the intentional action of entering public view while naked is both unnecessary and avoidable and therefore creates the infraction.

10. As the Supreme Court stated in Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969), “It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. Baxley, 355 U. S. 313, 322. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.”

11. Following the norms of American jurisprudence, this author makes no distinction between the words “inalienable” and “unalienable.” The terms are interchangeable and both readily embrace and defend the natural rights and American constitutional rights discussed in this memorandum. The Declaration of Independence states, “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.”

12. To see the breadth of books on mind control experimentation by modern militaries, simply keyword search ―mind control at Amazon.com, or visit this library of published materials devoted to addressing Ritual Abuse, Ritual Crime, and Healing.

13. The sheer amount of information (including disinformation) in this research area is staggering, thus making it very challenging to distinguish conspiracy truth from conspiracy paranoia. But the research process is indeed rewarding and eye-opening, even if only a fraction of the research is accurate. See e.g., How the World Really Works, by Alan Jones; Who‘s Who of the Elite, by Robert Gaylon Ross, Sr.; 33 Conspiracy Theories That Turned Out To Be True, by Jonathan Elinoff. Or for a more exotic approach: Conspiracy World: A Truthteller’s Compendium of Eye-Opening Revelations and Forbidden Knowledge, by Texe Marrs. Babylon‘s Banksters: The Alcehemy of Deep Physics, High Finance and Ancient Religion, by Joesph P. Farrell.

To read excerpts of conspiracy-oriented books about ‘how the world really works,’ browse the books in this research compendium. As stated colorfully by author David Icke, “People who believe that there is no major world conspiracy which involves a small number of people manipulating humanity through a hierarchical structure of control toward a New World Order, all have one identical factor in common. They have, in actual fact, not looked genuinely into the abundance of well-researched information on world conspiracy to see if there is one!”

And for a wide range of independent articles discussing conspiracy evidence, visit the Center for Research on Globalization, which is an independent media organization utilizing an extensive indy reporter network that exposes many facets of new world order crime, corruption, and environmental destruction. See also, Alex Jones’ Prison Planet, an independent media exposing prominent world players and major institutions that oppress people and planet for more power.

Most importantly, researchers from all walks of life benefit from serious study of the biblical gospels and the Book of Revelation, to empower research with meaning and context.

14. See e.g., In the Name of Science: A History of Secret Programs, by Andrew Goliszek. Death in the Air, Globalism, Terrorism, and Toxic Warfare, by Leonard Horowitz. Full Spectrum Dominance: Totalitarian Democracy In the New World Order, by F. William Engdahl. The True Story of The Bilderberg Group, by Daniel Estulin. Rulers of Evil: Useful Knowledge About Governing Bodies, by F. Tupper Saussy. End Game, by Alex Jones. The Depopulation Agenda, by Jon Rappoport. The Population Control Agenda, by Stanley K. Monteith, M.D.

15. See e.g., Chemtrails Confirmed, by William Thomas. Atmospheric Geoengineering: Weather Manipulation, Contrails and Chemtrails. A Review of the “Case Orange” report, by Rady Ananda. Chemtrails: The Consequences of Toxic Metals and Chemical Aerosols on Human Health, by Dr. Ilya Sandra Perlingieri.

16. See e.g., The Depleted Uranium Threat, by Thomas D. Williams. Science Or Science Fiction? Facts, Myths and Propaganda In the Debate Over Depleted Uranium Weapons, by Dan Fahey.

17. See e.g., Seeds of Destruction, by William F. Engdahl. Codex Alimentarius Global Food Imperialism, by Scott Tips. The Hundred-Year Lie, by Randall Fitzgerald. Excitotoxins: The Taste That Kills, by Russell Blaylock. Animal Factory: The Looming Threat of Industrial Pig, Dairy, and Poultry Farms to Humans and the Environment, by David Kirby. The Future of Food, by Deborah Garcia.

18. See e.g., The Fluoride Deception, by Christopher Bryson. The Case Against Fluoride: How Hazardous Waste Ended Up in Our Drinking Water and the Bad Science and Powerful Politics That Keep It There, by Paul Connett, James Beck, and H. Spedding Micklem. The Poisoning of America’s Water Supplies, by Mark Sircus. World Crisis, and Water: The Impending Apocalypse, by Sarah Meyer . Peak Water, by Matthew Power.

19. The Virus and the Vaccine: Contaminated Vaccine, Deadly Cancers, and Government Neglect, by Debbie Bookchin and Jim Schumacher. Murder By Injection, by Eustace Mullins. Vaccines Are They Really Safe & Effective, by Neil Miller. Vaccines, Autism and Childhood Disorders, by Neil Miller. Vaccine Safety Manual for Concerned Families and Health Practitioners, by Neil Miller. The Virus and the Vaccine, by Debbie Bookchin and Jim Schumacher. Vaccine A: The Covert Government Experiment That’s Killing Our Soldiers–And Why GI’s Are Only The First Victims, by Gary Matsumoto. Vaccines: What CDC Documents and Science Reveal, by Sherri J. Tenpenny. What Your Doctor May Not Tell You About(TM) Children’s Vaccinations, by Stephanie Cave and Deborah Mitchell. Evidence of Harm: Mercury in Vaccines and the Autism Epidemic: A Medical Controversy, by David Kirby. Callous Disregard: Autism and Vaccines: The Truth Behind a Tragedy, by Andrew J. Wakefield. Fowl! Bird Flu: It‘s Not What You Think, By Sherri Tenpenny. The Truth About Vaccines: How We Are Used As Guinea Pigs Without Knowing It, By Richard Halvorson.

20. Bill Gates funds covert vaccine nanotechnology, by Mike Adams.

21. Perhaps this observation is too cynical, but it seems the old adage ‗might makes right‘ is the primary driving force behind the erosion of logic and constitutional law.

22. See e.g., Ending Vaccination Humanicide, by Leonard G. Horowitz. Aaron Russo interview excerpt relaying an admission by David Rockefeller Jr. that vaccines are part of a depopulation agenda. See also, research links found through these sites: Eugenics and Depopulation; Kissinger/Rockefeller Plan of Depopulation; Industry Weapons For Earth‘s Depopulation; Vaccination Contaminations and Big Pharma Corruption; Killer Vaccines; Vaccine Magic: The Grand Finale; Vaccine Dangers and Vested Interests; Vaccination Came From the Vatican Via Great Britain.

23. For a library of published medical reports, see e.g., Think Twice Global Vaccine Institute; International Medical Council on Vaccination; Vaccine Information Center; National Vaccine Information Center; National Health Federation.

24. See e.g., medical research books and articles available through the National Health Federation, Natural News, Earth Clinic, Reality Zone.

25. See footnotes 14 and 19 above.

26. Regarding the distinction between ―legal and ―lawful, here is an article with a concisely stated definition: Legal or Lawful?, by FamGuardian.

Slavery has never been inherently lawful, even in the days when judges claimed that “Negroes” were “property” because that was “the law.” Rather, slavery was only sanctioned by written statutes and enforced by these ‘authorities’ during particular political regimes throughout history. Slavery has always been offensive to natural law, and the rights and responsibilities of all humans – slaves and slaveholders alike. Nor was the Holocaust lawful. Rather it was accomplished like slavery, by force and legal sanction from a particular political regime. The Nazi judicial authorities at the time issued all kinds of lofty opinions and orders. However, an order does not become lawful by its mere issuance, but rather by its virtue.

27. See e.g., Camp FEMA: Evidence of Internment Camps in America. A large amount of research has also been amassed by the American Patriot Friends Network.

28. See e.g., Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S. 252 (1886); Twining v. New Jersey (1908), 211 U.S. 78; Palko v. Connecticut, 302 U.S. 319 (1937); In re Kemmler, 136 U.S. 436 (1890); Mormon Church v. United States, 136 U.S. 1 (1890); Downes v. Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Balzac v. Porto Rico, 258 U.S. 298 (1922); Farrington v. Tokushige, 273 U.S. 284 (1927); Bolling v. Sharpe, 347 U.S. 497 (1954).

29. Jacobson v. Masschusetts, 197 U.S. 11 (1905).

30. “Public health programs that are based on force are a relic of the 19th century; 21st-century public health depends on good science, good communication, and trust in public health officials to tell the truth. In each of these spheres, constitutional rights are the ally rather than the enemy of public health. Preserving the public‘s health in the 21st century requires preserving respect for personal liberty.” Wendy K. Mariner et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 AM. J. PUB. HEALTH 581, 588 (2005).

31. See e.g., Lawrence O. Gostin, International Infectious Disease Law: Revision of the World Health Organization’s International Health Regulations, JAMA. 2004; 291(21):2623-2627 (2004). Gostin is cited here as an authority in this area not for any neutrality on his behalf, but rather because his views are routinely cited by legislative and military powers to justify the use of force. Gostin himself is quite articulate and scholarly, but his affiliations are highly suspect and include the educational arms of bioterror prevention departments of the U.S. military (The Center for Law and the Public’s Health, Georgetown University, Washington, DC, and Johns Hopkins University, Baltimore, Maryland). Equally suspect are the claims of authors who write with Gostin, such as David Fidler, who has opined that “The use of isolation and quarantine by governments to stop the spread of SARS is not, therefore, illegal per se under international human rights law.” David Fidler, SARS and International Law, ASIL INSIGHTS (Am. Soc’y of Int’l Law, Wash., D.C.), Apr. 2003.

In defense of Gostin and company though, we find a certain consistency to their writing, in that their theories appear consistent with their militaristic views, and the research is organized in that regard to advance their theories. Indeed, there is a noticeable trend in the academic papers supporting coercive vaccination and quarantine, which is to present a veneer of adherence to fundamental rights, but then conclude these rights are trumped by the greater good of militaristic control by the powers-that-be, and may be safeguarded after-the-fact by administrative protections (i.e., military hearings). In this author‘s assessment, Gostin acknowledges the Siracusa Principles in times of emergency, but then interprets international law to support militaristic conclusions. Accordingly, Gostin‘s work serves modern military empires and supports the ‘solutions’ of large industrial regimes – chemical, agriceutical, and pharmaceutical. By contrast, here is a literal excerpt from the Siracusa Principles:

“No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant‘s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.” [emphasis added]

The Siracusa Principles on the limitation and derogation provisions in the International Covenant on Civil and Political Rights. UN Doc E/CN.4/1984/4 (1984).

32. The Court in Jacobson expressly recognized the States, and not the Federal government, generally have jurisdiction over issues of vaccination. See also, Morgan’s Steamship Co. v. Louisiana Bd. of Health, 118 U.S. 455, 466 (1886). However, as noted by Mariner, et al., “Protecting the country against a terrorist‘s introduction of smallpox would fall within federal jurisdiction over national security.” 95 AM. J. PUB. HEALTH 581.

33. See e.g., Norton v. Shelby County, 118 US 425 (1885), “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Mortimer R. Kadish, et al., Discretion to Disobey, A Study of Lawful Departures from Legal Rules, Stanford University Press (1973); and see also, Uniform Code of Military Justice (UCMJ) 809 Art. 90, specifying that military personnel are only asked to obey a “lawful” command or order of a superior officer. International Human Rights Standards for Law Enforcement, A Pocket Book on Human Rights for the Police (“Officials who refuse unlawful superior orders shall be given immunity.”) The ancient principle comes from “lex injusta non est lex,” meaning an unjust law is not a law. For over two millennia, this has been the rule in western societies, championed by free-thinkers like Socrates, Plato, Cicero, Augustine, Aquinas, Blackstone, and Epstein.

See also, Wendy E. Parmet, Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty, 14 J. HEALTH POL. POL‘Y & L. 741, 751 (1989) (discussing Jacobson’s simultaneous affirmation of the state‘s power to act to protect the public and recognition of an individual right that could limit that power; and warning of historical abuses of power during health pandemics).

34. A mere monetary fine (without threat of imprisonment) is far less extreme than a forced vaccination needle. As stated in the appellate ruling upheld by the Jacobson Court, “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.” Commonwealth v Pear; Commonwealth v Jacobson (1903), 183 Mass 242, 248.

35. Id. at 27.

36. Id. The Jacobson court likens forced vaccination to forced military service, “…and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.” Id. at 29.

37. Id. at 26.

38. Id. at 25.

39. Id. at 29.

40. Id. at 26.

41. Id. at 23, 25-26, 28, 31, 35, 38, 39.

42. See e.g., Cruzan v Director, Missouri Dept of Health, 497 US 261, 279 (1990) (upholding the right to refuse medical treatment); Skinner v. Oklahoma, 316 U.S. 535, 540–42 (1942) (“The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.); But compare, Fundamentally Wrong About Fundamental Rights, by Adam Winkler, UCLA Constitutional Commentary (2006).

43. Id. at 31 and 35.

44. Jorge E. Galva, et al, Public Health Strategy and the Police Powers of the State; Public Health Rep. 2005; 120(Suppl 1): 20–27 , citing: (a) Gostin LO, Burris S, Lazzarini Z, Maguire K. Improving state law to prevent and treat infectious disease; (b) Richards EP, The jurisprudence of prevention: the right of societal self-defense against dangerous persons. Hastings Constitutional Law Q. 1989. pp. 329–92; and (c) Gostin LO, The future of communicable disease control.

45. Id. at 29.

46. Id. at 27-28.

47. Id. at 26-28.

48. The phrase, “acting in good faith for all,” appears to one of the more operative parts of the opinion in Jacobson that would allow a challenge to any mandatory vaccination law. Id. at 37.

49. Id. at 37-38.

50. Id. at 39.

51. Id. at 24.

52. See e.g., Rachael N. Pine, Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights, 136 U. PA. L. REV. 655, 726–27 (1988) (arguing that adherence to precedent should not bind courts to follow prior cases upholding a statute when legislative facts previously essential to its constitutionality have changed or their falsehood has become demonstrable).

53. See footnote 23 above.

54. See footnote 24 above.

55. See footnote 25 above.

56. Zucht v. King, 260 U.S. 174, 176 (1922). See also, Adams v. Milwaukee, 228 U.S. 572, 581-82 (1913).

57. See e.g., The CIA Doctors: Human Rights Violations by American Psychiatrists, by Colin Ross. Nonconsensual Medical Experiments on Human Beings, by Ronald B. Standler (1997).

58. See e.g., Cruzan v Director, Missouri Dept of Health, 497 US 261, 279 (1990) (upholding the right to refuse medical treatment); Skinner v. Oklahoma, 316 U.S. 535, 540–42 (1942) (invalidating law requiring sterilization for people convicted of crimes of moral turpitude); Rochin v. California 342 U.S. 165 (1952); Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (acknowledging ―society‘s concern for the security of one‘s person); Winston v. Lee, 470 U.S. 753, 755 (1985) (holding use of a surgical incision to obtain evidence unconstitutional); Mills v. Rogers, 457 U.S. 291 (1982); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849–50 (1992) (noting constitutional limits on state‘s right to interfere with bodily integrity); Sell v. United States, 539 U.S. 166, 176–79 (2003) (reversing order requiring involuntary administration of antipsychotic medications); Riggins v. Nevada, 504 U.S. 127, 134–35 (1992) (recognizing a constitutionally protected liberty “interest in avoiding involuntary administration of antipsychotic drugs” —an interest that only an “essential or overriding state interest might overcome”).

59. United States v Stanley, 483 US 669 (1987).

60. It is further established for both civilians and military personnel, that freedom from physical restraint is a “liberty interest” protected by the due process clause through the Fourteenth Amendment. See e.g., Kansas v. Hendricks, 521 U.S. 346, 356 (1997).

61. Wendy K. Mariner et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 AM. J. PUB. HEALTH 581, 588 (2005).

62. Id.

63. See e.g., State Constitutional protections, such as California Constitution Art I., Sec. 1 – “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty… and pursuing and obtaining safety, happiness, and privacy.” See also, Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, Texas Review of Law & Politics, (2007). Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813, 1824 (2007).

64. See e.g., Michael J. Kelly, Time Warp to 1945 – Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines In International Law, J. Of Transnational Law & Policy, Vol. 13:1.

65. See e.g., Edward Richards, The jurisprudence of prevention: the right of societal self-defense against dangerous persons, Hastings Constitutional Law Q. 1989. p. 336.

66. See, A. Phillips, The Authoritative Guide to Vaccine Exemptions, (2009), pp. 68-70. Wendy K. Mariner et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 AM. J. PUB. HEALTH 581, 588 (2005) (“Even in an emergency, when there is a rapidly spreading contagious disease and an effective vaccine, the state is not permitted to forcibly vaccinate or medicate anyone. The constitutional alternative is to segregate infected and exposed people separately [allowing self-quarantine] to prevent them from transmitting the disease to others.”)

67. Quarantine laws are, by nature, health laws, and thus fall under the authority of state and local governments. Gibbons v. Ogden, 22 U.S. 1, 25 (1824). See also, United States v. Printz, 521 U.S. 898, 935 (1997) (the federal government has no authority to order state officials to execute federal law). However, as noted by Mariner, et al., “Protecting the country against a terrorist‘s introduction of smallpox would fall within federal jurisdiction over national security.” 95 AM. J. PUB. HEALTH 581.

68. See e.g., Guenter B. Risse, Revolt Against Quarantine: Community Responses to the 1916 Polio Epidemic, Oyster Bay, New York, Transactions & Stud. of the College of Physicians of Philadelphia, Mar. 1992.

Felice Batlan, Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future, 80 TEMP. L. REV. 53, 57-59 (2007) (discussing the history of quarantine powers and the contemporary U.S. policy endorsing military action to enforce quarantine), “History also cautions that we cannot depend on the courts to impute adequate due process and substantive rights into federal or state quarantine law. In the past and continuing well into the present, courts too often have deferred to the authority of health officials.”

Sofia Gruskin, Is There a Government in the Cockpit: A Passenger’s Perspective, or Global Public Health: The Role of Human Rights, 77 TEMPLE L. REV. 313, 322-23 (2004) (discussing quarantines as infringement on human rights); Sofia Gruskin, Perspectives on Health and Human Rights, Routledge, (2005).

69. See e.g., Leisy v. Hardin, 135 U.S. 100, 127 (1890) (“…the ‘police power,’ – that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime.”); Panhandle Eastern Pipeline Co. v. State Highway Commission, 294 U.S. 613, 622 (1935) (“The police power of a state, while not susceptible of definition with circumstantial precision, must be exercised within a limited ambit and is subordinate to constitutional limitations. It springs from the obligation of the state to protect its citizens and provide for the safety and good order of society. Under it there is no unrestricted authority to accomplish whatever the public may presently desire. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.”)

Interestingly, the police power doctrine is often erroneously traced only recently to colonial America, even though its logical origin is early civilization:

(A) In ancient times, the people enforced laws (policed) themselves in small tribal communities using very simple laws based on fairness, common decency, and/or religious beliefs.

(B) As time went on, for efficiency reasons, citizens gave to their governments the right to enforce certain laws (police), but the citizens also retained many rights of self-policing (i.e., citizen‘s arrests, jury trials, self-defense, torts).

(C) Today, even though laws have become numerous and complex, the government still has no more power than the people allow, and many rights are indeed still retained by the people.

70. See e.g., Yik Wo v. Hopkins, 118 US 356 (1885) (”When we consider the nature and the theory of our institutions of government, the principles on which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.”); Hale v. Henkel, 201 U.S. 43 at 47 (1905); Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884); Meachum v. Fano, 427 U.S. 215 (1976); Budd v. People of the State of New York, 143 U.S. 517 (1892); Miranda v. Arizona, 384 US 436 (1966)

71. See e.g., Calder v. Bull, 3 Dallas 386-389 (1798); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824); Smith v. Turner, 48 US (7 How) 283, 340-41 (1849) (police power used to control the threat of yellow fever); Parmet W.E. AIDS and quarantine: the revival of an archaic doctrine. Hofstra L Rev. 1985;14:53–90; Richards EP. Collaboration between public health and law enforcement: the constitutional challenge, Emerg. Infect Dis. 2002; Reynolds GH, Kopel DB. The evolving police power: some observations for a new century, Hastings Constitutional Law Quarterly. 2000 Spring; 511–37. See also, Richards EP, Rathburn K. The role of the police power in the 21st century, J Sexually Transmitted Diseases. 1999;26:350–7, citing Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding Kansas law indefinitely detaining sexual predators); Whalen v. Roe, 429 U.S. 589 (1977) (using the collection of epidemiologic data to justify the exercise of the police power), Reynolds v McNichols, 488 F.2d 1378 (CA10 Colo 1973) (upholding health hold orders to close down a bathhouse), Varholy v. Sweat, 153 Fla. 571, 575 (1943) (upholding quarantine over grant of bail); Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900) (quarantine of San Francisco district inhabited primarily by Chinese immigrants purportedly to control the spread of bubonic plague; invalidated because the measure was found to increase the risk of spreading the disease). See also, Jorge E. Galva, et al, Public Health Strategy and the Police Powers of the State; Public Health Rep. 2005; 120 (Suppl 1): 20–27. UNAIDS (Joint United Nations Programme on HIV/AIDS), Criminal law, public health and HIV transmission: a policy options paper. Geneva (Switzerland): UNAIDS; 2002.

72. See e.g., Christopher G. Tiedman, A Treatise on the Limitations of the Police Power in the United States, (St. Louis, F.H. Thomas Law Book Co. 1886), at 205, (“[T]he police power of the State can never be exercised in favor of, or against any system of medicine. The police power can be brought to bear upon quacks, and disreputable practitioners, to whichever school they may belong, but when reputable and intelligent members of the profession differ in theories of practice, the State has no power to determine which of them, if either, is wrong.”)

73. The World Health Organization Constitution, adopted in 1946, empowers the agency to adopt binding obligations and procedures to prevent infectious disease spread internationally. See World Health Organization Const. art 21, July 22, 1946 (“The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease…”).

See also, Daniel Markovits, Quarantines and Distributive Justice, 33 J.L. MED. & ETHICS 323, 323 (2005). Kathleen S. Swendiman, Legislative Analysis Attorney, CRS Report, RS21414, Mandatory Vaccinations: Precedent and Current Laws (2009). George J. Annas, Bioterrorism, Public Health, And Human Rights, 21 HEALTH AFF. 94 (2002) (“Biological attacks are different in kind from nuclear and chemical attacks, and they require specially tailored defenses . . . . there are extreme circumstances under which isolation or quarantine can be employed.”). Dopplick, Renee, Emergency Preparedness for a Pandemic Under International Law (2008) (concluding that ―the right of a coercive international intervention in response to an infectious outbreak remains uncertain and untested under international law and, if invoked, should be limited to extraordinary circumstances.)

74. See e.g., Cruzan v Director, Missouri Dept of Health, 497 US 261, 279 (1990); Skinner v. Oklahoma, 316 U.S. 535, 540–42 (1942); Rochin v. California 342 U.S. 165 (1952); Skinner v. Ry. Labor Executives‘ Ass‘n, 489 U.S. 602, 616 (1989) (acknowledging ―society‘s concern for the security of one‘s person); Winston v. Lee, 470 U.S. 753, 755 (1985) (holding that a compelled surgical intrusion into an individual‘s body for evidence would violate that individual‘s ―right to be secure in his person and be ―unreasonable under the Fourth Amendment); Mills v. Rogers, 457 U.S. 291 (1982); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849–50 (1992) (noting constitutional limits on state‘s right to interfere with bodily integrity); Sell v. United States, 539 U.S. 166, 176–79 (2003) (reversing order requiring involuntary administration of antipsychotic medications); Riggins v. Nevada, 504 U.S. 127, 134–35 (1992) (recognizing a constitutionally protected liberty “interest in avoiding involuntary administration of antipsychotic drugs” —an interest that only an “essential” or overriding state interest might overcome); In re Cincinnati Radiation Litig., 874 F. Supp. 796, 816–18 (S.D. Ohio 1995) (outlining U.S. Supreme Court decisions regarding the right to be free from unwanted bodily intrusions dating back to 1884); Anderson v. City of Taylor, 2005 U.S. Dist. LEXIS 44706 (E.D. Mich. August 11, 2005) (mandatory blood draws for a firemen’s “wellness program” under FEMA auspices was a Fourth Amendment seizure because it was mandatory and they were subject to punishment for not agreeing). B. Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Texas Law Review 277 (2007). Elizabeth G. Patterson, Health Care Choice and the Constitution: Reconciling Privacy and Public Health, 42 RUTGERS L. REV. 1 (1989). Wendy E. Parmet, Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment, 15 TEMP. POL. & CIV. RTS. L. REV. 395 (2006). Wendy E. Parmet et al., Individual Rights Versus the Public’s Health—100 Years After Jacobson v. Massachusetts, 352 NEW ENG. J. MED. 652, 652 (2005).

75. See e.g., Camara v. Municipal Court, 387 U.S. 523 (1967) (the Fourth Amendment applies to inspections, and if an individual does not consent to an inspection, a warrant must be obtained for entry onto and inspection of residential property); Payton v. New York, 445 U.S. 573, 601 (1980) (“the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic.”); Boyd v. U.S., 116 US 616 (1886) (”Constitutional provisions for the security of person and property should be liberally construed.”)

See also, Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 151 (“It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. Baxley, 355 U. S. 313, 355 U. S. 322. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.”); Follett vs. Town of McCormick, S.C., 321 U.S. 573 (1944) (requiring licensing or registration of any constitutional right is itself unconstitutional); Murdock vs. Pennsylvania, 319 US 105 (1942) (a state cannot impose a license, tax or fee on a constitutionally protected right.)

76. See e.g., California Constitution Article I, section 1, stating that privacy is an inalienable right. And see other State Constitutions as well.

77. See e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; Soroka v. Dayton Hudson Corporation (1991) 235 Cal.App.3d 654. See also, Article 12 of the UN Universal Declaration of Human Rights, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” And Article 55 of the UN Charter, states the UN will promote “universal respect for, and observance of, human rights and fundamental freedoms.”

78. See, Mapp v. Ohio, 367 U.S. 643 (1961) and its progeny.

79. See e.g., People v. Strautz, 386 Ill. 360 (1944), and Welch v. Shepherd, 165 Kan. 394 (1948).

80. See e.g., Martin v. Waddell, 41 U.S. 16 (1842) (seminal case upholding the doctrine of the public trust); Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892) (state legislature could not grant ownership of land under navigable waters to a private party); Eddy v. Simpson (1853), 3 Cal. 249 (upholding the public trust doctrine); National Audubon Society v. The Superior Court of Alpine County (1983) 33 Cal. 3d 419 (1983) (upholding the public trust and invoking the principle of jus publicum—that certain resources are of so common a nature they defy private ownership). Article 1, section 27 of the Pennsylvania state constitution: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania‘s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources the Commonwealth shall conserve and maintain them for the benefit of all the people.”

See also, Environmental Legislation and the Commons, by Mark Dowie. Joseph L. Sax. “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” Michigan Law Review 68.January (1970): 471

81. C. Kormos, Handbook on International Wilderness Law; University of Montana Wilderness Institute (2008). P. Landres, B. Barr, C. Kormos, The Matrix, A Comparison of International Wilderness Laws. Katz v. United States, 389 U.S. 347, 351 (1967) (“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”) W. Hammitt and M. Madden, Cognitive dimensions of wilderness privacy: A field test and further explanation; Leisure Sciences, Vo. 11, pp. 293-301 (1989).

82. Wilderness as a Protected Classification, by The Wild Foundation.

83. See, Section 2 of the Wilderness Act of 1964; P. Landres, M. Hennessy, K. Schlenker, D. Cole, S. Boutcher, Applying the Concept of Wilderness Character to National Forest Planning, Monitoring, and Management; Hendee, J.C. and Dawson, C.P. 2002, Wilderness management: stewardship and protection of resources and values, third edition. Golden, CO: Fulcrum Publishing.

84. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Constitution, Amendment I.

85. For a helpful and detailed laymen’s guide to vaccine exemptions, see A. Phillips, The Authoritative Guide to Vaccine Exemptions, (2009). When citizens utilize the vaccine exemption processes upfront, it shows respect for law and order, and contributes greatly to the continued legitimacy of vaccine rights in the public eye.

86. See, Free Exercise Exemption From General Governmental Requirements, by Justia USSC Center.

87. See e.g., Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 151 (“It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. Baxley, 355 U. S. 313, 355 U. S. 322. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.”); Follett vs. Town of McCormick, S.C., 321 U.S. 573 (1944) (requiring licensing or registration of any constitutional right is itself unconstitutional.) Murdock vs. Pennsylvania, 319 US 105 (1942) (A state cannot impose a license, tax or fee on a constitutionally protected right.)

88. In Bowen v. Roy, 476 U.S. 693 (1986), the Court held that a religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping. The Court was not concerned with how easily the government could accommodate the religious beliefs or practices (i.e., an exemption from the social security number requirement might have been granted with only slight impact on the government’s recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections.

89. Note however that a high degree of deference is given to decisions of prison administrators that restrict religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are “valid if . . . reasonably related to legitimate penological interests. O’Lone, supra, 482 U.S. 342, 349.

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Constitutional Law Analysis 2010
Pandemic Response Project

Greg Glaser is an independent constitutional lawyer in Danville, California, with research published regularly at LogicalHierarchy.com.