Republican rhetoric vs reality: Vaccination mandates are Constitutional

“People have a choice,” Rep. Marjorie Taylor Greene (R-Ga.) has declared, “they don’t need your medical brown shirts showing up at their door ordering vaccines.”

Greene probably knows that no brown shirt or anyone else has ordered a single American to take a COVID-19 vaccine shot, but she and others who insist that mandates violate individual rights guaranteed to all Americans apparently do not know that the U.S. Constitution gives government officials and private employers considerable authority to protect the public against the spread of communicable diseases.

Under Article 1, Section 8, Clause 3 (the Commerce Clause), Congress has the power to prevent foreigners from bringing diseases to the United States. And the Public Health Service Act allows the Department of Health and Human Services and the Centers for Disease Control and Prevention (CDC) to “prevent the introduction, spread, transmission or spread of communicable diseases” from one state into another state. For 200 years, courts have agreed that Article 10 of the Constitution gives state governments primary authority to secure the health and safety of their inhabitants, by, for example, requiring quarantines, issuing shelter-in-place orders, and curfews during emergencies. For this reason, the federal government has tended to limit its role in the pandemic to facilitating, monitoring, and promoting the manufacture and distribution of vaccines and ensuring they are effective and safe.

In the 1905 case Jacobson v. Massachusetts, the Supreme Court upheld the right of states to require compulsory vaccination of all persons over 21 against smallpox, because such action “had a real and substantial relation to the protection of public health and safety.” In his decision for the majority, Justice John Marshall Harlan asserted that “liberty secured by the Constitution of the United States to every person within its jurisdiction does not impose 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.”

In the 1922 case Zucht v. King, the Court upheld a San Antonio, Texas, order excluding unvaccinated children from attending public or private schools. The city ordinance, the Court declared, is “consistent with the Fourteenth Amendment [guarantee of equal protection] … [and] a contrary contention presents no substantial constitutional question.” In the ensuing 100 years, the judiciary has continued to reaffirm Jacobson and Zucht.

All 50 states now have laws requiring one or more vaccinations against specific diseases for students. The CDC reported in 2014 that vaccinations during the previous 20 years will have prevented 21 million hospitalizations and 732,000 child deaths.

The court’s reasoning, it is worth noting, also applies to laws in over 5,000 municipalities designed to reduce the significant health hazard posed by secondhand smoke, by restricting where cigarette smoking is allowed (including over 1,400 statutes requiring 100% smoke-free workplaces and/or restaurants and bars).

In an opinion in which he derided New York State’s “color coded edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” Neil Gorsuch, one of the most conservative justices on the Supreme Court, called Jacobson “a model decision” that “did not seek to depart from normal legal rules during a pandemic.” On Aug. 2, 2021, a three-judge panel of Republican-nominated federal judges (two of them nominated by Donald Trump) upheld the vaccination mandate of Indiana University, a public institution. The university “may decide what is necessary to keep other students safe in a congregate setting,” wrote Judge Frank Easterbrook. “People who do not want to be vaccinated may go elsewhere.”

In the United States, private sector employees can be fired at any time, for any reason — or no reason — unless a state law, a federal law or a collective bargaining agreement protects their job security in a specific way. Employers can mandate that some or all of their workers get vaccinated, as long as they comply with the Americans With Disabilities Act, Title VII of the Civil Rights Act, and accommodate people with religious objections. On June 12, 2021, federal judge Lynn Hughes dismissed an anti-vaccination lawsuit filed by 117 workers at Houston Methodist Hospital. Inoculation, wrote Judge Hughes, “will make it safer for workers and the patients in Methodist’s care.”

In his “Second Treatise on Civil Government,” John Locke, an inspiration to many of our nation’s Founders, emphasized that people give up their “perfect” natural freedom to do as they please when they enter into society in order to gain protection of their lives, liberties, and property. “If men were angels,” James Madison wrote in Federalist #51, “no government would be necessary.”

Surely, these principles apply in a pandemic that has already taken the lives of well over 600,000 Americans. To date, no government entity has mandated vaccinations. But if some do — because it’s the only way to end the carnage — their actions will be well within the spirit and the letter of the United States Constitution.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”