The American experiment has preserved individual liberty – more or less – for 240 years by establishing foundational principles – the rule of law – that restrain government and elitist social forces. The rules of law that have preserved Americans’ individual liberty have become axiomatic through the Bill of Rights and a general conception of what individual liberty entails. To date, the axiomatic nature of the rules of law has erected a near impenetrable barrier to elitist totalitarianism. It may not much longer.
Just like water, elitist totalitarianism never stops looking for a way to get through, around, under, or over obstacles. In America’s case, our system of axiomatic guarantees of individual liberty has proven impossible over time to undermine, penetrate, or circumvent. That left elitist totalitarianism one place to go: up. The result has been a centuries long search for a powerful societal interest that would override individual liberty and easily masquerade as being in the public interest.
Enter public health interests.
The past two months have shown us just how much Americans like their existence and their own skins. Faced with the ominous consequences of a potentially deadly disease, Americans prioritized their skins over their liberties. State and local governments did not just restrict individual liberties guaranteed by the Bill of Rights. They suspended them outright for indefinite periods of time, and their arguments for why such a suspension fell on willing ears.
I like my life and my skin just as much as the next person, but I am a maverick, or a rugged individual as my father says. I have significant problems with other people or a self-righteous and godless society telling me how I should live my life. I would rather die than be compelled to comply with elitist orders like a mindless sheep.
Sadly, the majority of Americans do not appear to feel the same way. The institutions established to protect individual liberty share a similar attitude. As I wrote about in a previous article, the United State Supreme Court has recognized a public health emergency exception to the Bill of Rights and unenumerated rights guaranteed by the Fourteenth Amendment. State and local governments have used that exception to justify their wholesale suspensions of constitutionally guaranteed individual liberty even though it would prove untenable under modern constitutional doctrine.
If history is any indication, the public health emergency exception to the Bill of Rights and the 14th Amendment’s protections for unenumerated rights does not remain a public health emergency exception. It becomes a public health exception to the Bill of Rights.
The United States Supreme Court created the public health emergency exception in 1905 in a case called Jacobson v. Massachusetts. The Court summarily reaffirmed Jacobson in a 1922 case called Zucht v. King. Both Jacobson and Zucht were compulsory vaccination cases. The difference is that the Jacobson plaintiff challenged a Boston compulsory vaccination law during a smallpox outbreak while the Zucht plaintiff challenged the San Antonio city council’s law that no child could attend a public or a private school without a smallpox vaccination.
Notice the difference. Jacobson concerned a situation that arguably constituted a public health emergency. On the other hand, Zucht concerned no such public health emergency, but rather San Antonio’s decision that general compulsory vaccinations constituted a necessary general public health ordinance. Consequently, in less than 20 years, the Supreme Court removed the word “emergency” from the public health emergency exception.
The steady creep of this totalitarian use of the public health emergency exception saw its next advance on even more egregious facts. In 1927, the Supreme Court decided a case called Buck v. Bell at the height of the eugenics movement. A major policy goal of the eugenics movement at the time was to mandate sterilization for the mentally ill or intellectually disabled individuals. Virginia decided to experiment with the idea and passed a law setting up a process for forced sterilization in 1924. The head of Virginia’s mental institution at the time then sought to sterilize an 18-year old woman who he claimed had the mental maturity of a 9-year old and whose mother was mentally feeble and engaged in prostitution and immorality. He argued that the patient would be destined for the same future.
The Supreme Court held that the compulsory sterilization was constitutional in an 8-1 decision. In an infamous opinion for the Court, Justice Oliver Wendell Holmes relied completely on Jacobson and Zucht, thus continuing to perpetuate the evolving public health exception to the Bill of Rights:
“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…. Three generations of imbeciles is enough.”
The steady march toward a public health exception continued in 1944 when the Supreme Court decided a case called Prince v. Massachusetts and held that the public health exception justified a Jehovah’s Witness’s conviction for violating child labor laws by having her children distribute religious literature.
Finally, and more recently, the Supreme Court decided a case called Vernonia School District 47J v. Acton in 1995. In Veronia School District, the Supreme Court held, in a 6-3 decision, that mandatory drug tests for school athletes were constitutional even though they constituted searches under the 4th Amendment case. The Court’s reasoning did not cite Jacobson or its progeny, but it relied heavily on the state’s public health interest and described it broadly. The Court’s broad description was too much for Justice Ruth Bader Ginsburg. She penned a brief concurrence hinting that she agreed with the decision because school sports were voluntary but that it would become a different matter altogether if mandatory testing was instituted as a general policy.
Therefore, history teaches us that the exceptions to constitutional liberties do not stop in public health emergencies. They extend to whatever governments and judges embrace as necessary decisions for individuals who are too stupid to make their own choices and behave properly.
That is a dangerous principle. This week alone, we saw more than 1300 public health experts declare racism – yes, racism – to be a public health emergency that was more dangerous than the ongoing coronavirus pandemic. What regulations will follow in violation of our constitutional rights to respond to the public health emergency of racism? I find the declaration to be laughable because I have yet to see someone fall physically ill with racism, and I am disgusted by the continued attempts to divide our society by race-baiting.
What will be the next public health emergency that has no relation to disease? Gender bias? LGBTQ bias? Global warming? What rights will we be forced to surrender to cure these “diseases?” Will the government end up controlling every aspect of our lives to cure an endless diet of “diseases” cooked up by self-righteous, elitist, and aggrieved mobs?
I don’t know, but I am scared for America because totalitarianism has finally found a way over our constitutional rights. If the public health exception to the Constitution is not eliminated, it will destroy the American experiment and replace it with totalitarianism.