"Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. " Jacobson v. Massachusetts, 197 U.S. 11 (1905)
The Jacobson decision was widely cited as during the COVID Pandemic Panic as legitimizing vaccine mandates and the other examples of pharmaceutical authoritarianism spawned by during that orgy of propaganda, presenting that case as judicial endorsement of the imposition of the police power into the realm of healthcare and medical choice.
Yet a close reading of that decision reveals that Justice Harlan's logic was predicated on the realities of smallpox as an extremely dangerous disease which therefore presented a very real threat to public health and public safety. Absent those realities--what Harlan calls "the necessities of the case"--that logic evaporates and even Harlan concedes that in such a circumstance the courts could be obligated to act, and indeed had been obligated to act.
The presumption that regulatory authority ever reigns supreme in any part of our lives, and in particular in the medical choices we make, is not one which is backed by any serious reading of the law.
We should therefore not be reluctant to challenge that authority whenever we have reason to believe it is not being applied in our best interest, or where we see a risk of harm. The realm in which regulatory authority trumps personal liberty is quite a bit smaller than the reflexive authoritarians among us want to admit, and it is not unreasonable to consider a presumption of regulatory overreach as the default scenario, so that those who support a regulation are compelled to defend it and to show the compelling interest which gives it legitimacy.
Another problem I have with people citing Jacobson to "prove" that the government has the authority to force medical procedures on people for "the good of society" is that the same reasoning was used to support the forced sterilization of individuals who were seen as "unfit to reproduce."
Managed care, which replaced insurance, seems like another way to centralize power over which treatments are even available, rather than to actually provide people with healthcare. We pay a huge amount of money for HMOs and PPOs and they in turn tell us how we may spend it, by portioning it back out to us, poorly, while pocketing the difference between what we need and what they allow.
It’s a huge scam, but we are held captive by the insurance cartel, and it is a cartel, as there is no longer a type of health insurance that covers just cancer or a broken leg.
They obviously collude to set prices, for premiums and treatments, determine acceptable treatments and standards of care, which traps us all, and leaves us to pay out of pocket for established alternative treatments like acupuncture, cryotherapy or massage.
Yes, in fact I have a podcast episode coming up in which we discuss this. I haven't had a chance to post it yet, but should in the next week or so. In the meantime, you can see my guest's paper here, in which he goes into some depth on the issue:
Excellent post, and thank you. The history of how healthcare was altered by philanthropic interests is an important factor. Sinclair Lewis describes a thinly veiled Rockefeller University in his book, Arrowsmith, so our scientific community and our healthcare system has been compromised long enough to have entered early twentieth century literature. The nomination of RFK jr is the best appointment to date but the challenges faced are nothing short of monumental. Now, we need an Agriculture Secretary who can work hand in glove with HHS. Anyone that has read the entirety of Food Safety Modernization Act knows that FDA controls USDA.
"and never mind that 'the public' is not a single entity with uniform interests to begin with"
Well, I *do* mind, so I will insert this here. The idea that there could be such a thing as 'public health' — and as a service provided by the government, at that — is flawed in many ways. First, as you pointed out, the public is not a monolith with the same needs and desires. That means that public health is merely utilitarianism — supposedly providing the most good for the most number of people. And who determines what is 'good'? And why is the government involved in health in the first place?
We now return you to your regularly scheduled Substack post.
"Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. " Jacobson v. Massachusetts, 197 U.S. 11 (1905)
https://supreme.justia.com/cases/federal/us/197/11/
The Jacobson decision was widely cited as during the COVID Pandemic Panic as legitimizing vaccine mandates and the other examples of pharmaceutical authoritarianism spawned by during that orgy of propaganda, presenting that case as judicial endorsement of the imposition of the police power into the realm of healthcare and medical choice.
Yet a close reading of that decision reveals that Justice Harlan's logic was predicated on the realities of smallpox as an extremely dangerous disease which therefore presented a very real threat to public health and public safety. Absent those realities--what Harlan calls "the necessities of the case"--that logic evaporates and even Harlan concedes that in such a circumstance the courts could be obligated to act, and indeed had been obligated to act.
The presumption that regulatory authority ever reigns supreme in any part of our lives, and in particular in the medical choices we make, is not one which is backed by any serious reading of the law.
We should therefore not be reluctant to challenge that authority whenever we have reason to believe it is not being applied in our best interest, or where we see a risk of harm. The realm in which regulatory authority trumps personal liberty is quite a bit smaller than the reflexive authoritarians among us want to admit, and it is not unreasonable to consider a presumption of regulatory overreach as the default scenario, so that those who support a regulation are compelled to defend it and to show the compelling interest which gives it legitimacy.
Another problem I have with people citing Jacobson to "prove" that the government has the authority to force medical procedures on people for "the good of society" is that the same reasoning was used to support the forced sterilization of individuals who were seen as "unfit to reproduce."
Oliver Wendell Holmes' greatest judicial failure and very great embarrassment: Buck v Bell (274 U.S. 200 (1927))
It's the only case one ever need to know to understand how The State truly apprehends doctrines of bodily autonomy.
...gonna look that up!
https://supreme.justia.com/cases/federal/us/274/200/
It's the decision where Holmes wrote "three generations of imbeciles are enough."
Oh Jesus!
Managed care, which replaced insurance, seems like another way to centralize power over which treatments are even available, rather than to actually provide people with healthcare. We pay a huge amount of money for HMOs and PPOs and they in turn tell us how we may spend it, by portioning it back out to us, poorly, while pocketing the difference between what we need and what they allow.
It’s a huge scam, but we are held captive by the insurance cartel, and it is a cartel, as there is no longer a type of health insurance that covers just cancer or a broken leg.
They obviously collude to set prices, for premiums and treatments, determine acceptable treatments and standards of care, which traps us all, and leaves us to pay out of pocket for established alternative treatments like acupuncture, cryotherapy or massage.
Yes, in fact I have a podcast episode coming up in which we discuss this. I haven't had a chance to post it yet, but should in the next week or so. In the meantime, you can see my guest's paper here, in which he goes into some depth on the issue:
https://qjae.mises.org/article/37883-book-review-_big-med-megaproviders-and-the-high-cost-of-health-care-in-america_?auth_token=Y5yX2y8g2_IxPUMUj8wy
Excellent post, and thank you. The history of how healthcare was altered by philanthropic interests is an important factor. Sinclair Lewis describes a thinly veiled Rockefeller University in his book, Arrowsmith, so our scientific community and our healthcare system has been compromised long enough to have entered early twentieth century literature. The nomination of RFK jr is the best appointment to date but the challenges faced are nothing short of monumental. Now, we need an Agriculture Secretary who can work hand in glove with HHS. Anyone that has read the entirety of Food Safety Modernization Act knows that FDA controls USDA.
"and never mind that 'the public' is not a single entity with uniform interests to begin with"
Well, I *do* mind, so I will insert this here. The idea that there could be such a thing as 'public health' — and as a service provided by the government, at that — is flawed in many ways. First, as you pointed out, the public is not a monolith with the same needs and desires. That means that public health is merely utilitarianism — supposedly providing the most good for the most number of people. And who determines what is 'good'? And why is the government involved in health in the first place?
We now return you to your regularly scheduled Substack post.
Yes. Amen, and thank you!
THESE are the questions that should be (and therefore will not be) asked at RFK Jr's hearings.