ACLU Endorses Vaccine Mandates Without Religious Exemptions

The ACLU endorses a dictum from Prince v. Massachusetts (1944) that predated modern Free Exercise Clause jurisprudence.

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The ACLU once stood for the American Civil Liberties Union. But that acronym has as much vitality as the American Telegraph & Telephone Company. The organization no longer puts civil liberties first. The ACLU should drop the pseudo-acronym, and simply become known as the ACLU, like AT&T, CVS, GEICO, 3M, KFC, SAT, and NARAL. (The last example may be the most relevant name-change).

The latest case in point is a New York Times op-ed by ACLU leaders David Cole and Daniel Mach. They endorse vaccine mandates. And, they write, a forcible government mandate preserves liberty!

In fact, far from compromising civil liberties, vaccine mandates actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.

Vaccine requirements also safeguard those whose work involves regular exposure to the public, like teachers, doctors and nurses, bus drivers and grocery store employees. And by inoculating people from the disease's worst effects, the vaccines offer the promise of restoring to all of us our most basic liberties, eventually allowing us to return safely to life as we knew it, in schools and at houses of worship and political meetings, not to mention at restaurants, bars, and gatherings with family and friends.

This argument is very much premised on the progressive account of freedom. The government can promote liberty by forcing people to do things. Solicitor General Verrilli advanced this conception of liberty in NFIB v. Sebelius: requiring people to maintain insurance will allow other people to be free from concerns about health risks. Sort of like FDR's "Freedom from Want." This argument did not go over well at the Supreme Court. Still, I'm stunned to see the ACLU endorse this positivist account of freedom. Well, not stunned they hold these views. Stunned that they would show their cards.

The ACLU also rejects any place for exemptions based on the freedom of religion. And the authors invoke Prince v. Massachusetts (1944):

What about those who object to vaccination on religious grounds? Like personal autonomy, religious freedom is an essential right, but not an unfettered license to inflict harm on others. As the Supreme Court explained more than 75 years ago in Prince v. Massachusetts: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death."

Now, I am really stunned the ACLU favorably cited Prince. In this case, a Jehovah's Witness woman was charged with violating child labor laws when she allowed a minor to distribute religious literature. The Court, per Justice Rutledge, upheld the prosecution. This is the precedent the ACLU hangs its hat on! The government pretextually used a child labor law to shut down the distribution of religious liberty for a persecuted minority. I would think the ACLU would line up with Justice Murphy's dissent, which was joined by Justices Jackson, Roberts, and Frankfurter. But no, the ALCU lines up with the majority. Still the ACLU's invocation of Prince is even more problematic.

The case had nothing do with spreading disease. The quoted sentence, at most, was a dictum. Moreover, even in 1944, the Court had not established its modern Free Exercise Clause jurisprudence. The test put forward by Justice Rutledge is inconsistent with Sherbert v. Verner as well as Employment Division v. Smith. And Prince, like Jacobson. presents an escape hatch from modern constitutional law. During the pandemic, courts cited this dictum to uphold restrictions on abortion! And the ACLU gave the case its blessing.

In my new article on Jacobson, I discuss the vitality of Prince. Anyone who wishes to cite Prince, or Jacobson for that matter, should understand the context.

NEXT: Refusing to Accept Crumpled $1 Bills as Property Tax Payment Doesn’t Violate First Amendment

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  1. “Freedom Is Slavery” because the man who is independent is doomed to fail. By the same token, “Slavery Is Freedom,” because the man subjected to the collective will is free from danger and want

    All hail the new ACLU

    1. In some ways, I felt freeest as an individual while in navy. Very few personal responsibilities other than obeying orders, and tax returns were a breeze. Liberty wasn’t difficult. No decisions on where to live, no worries about getting fired or getting bored and wanting a new job (at least until my four years were up). I imagine being homeless in some ways could be the same. Freedom’s just another word for nothing left to lose.

      But to pervert that into “slavery is good” boggles my mind. I realize a lot of people in 1860, and still a very few today, did think Africans were subhuman and need owners just as cats and dogs and cattle and goats and sheep and horses do; but other than being proof that society was different, I cannot understand it.

      1. If people don’t make the right choices, well, they don’t deserve their freedom to make the choices, and we’ll make it for them.

        1. A conspiratorially-minded person might think there’s a secret meeting every day of people in charge of the right-wing’s hive mind. It’s subject? New measures to cheapen and debase the word Freedom …. What additional steps are possible to render the idea more trivial.

          You might think so, listening to all the snowflake victimhood whinging of today’s “conservatives”. Freedom is an awesome & critical concept; it takes a concerted effort to reduce it to a child’s blue-faced tantrum.

          Everybody reading this has been living with vaccine mandates their entire lives. To attend grade school & elementary school. To go to college. My six years in the Army National Guard included – yes – vaccine mandates.

          For a while, Right-Wing World justified their whining because the vaccines for Covid have only early emergency approval. Well, that argument will soon be 100% outdated. Will their posturing then stop? Nope. Not a chance. They’re having the time of their lives throwing this snit. No two-year-old in full wailing glory ever had so much fun.

          1. And now, if you don’t get the vaccine, you go to jail or have your kids taken away.

            Yay! Who needs civil rights!

            1. Armchair Lawyer : “….you go to jail or have your kids taken away….”

              Strangely enuff, I don’t see any of those measures listed in the original post. Also, (as I pointed out above) vaccine mandates have been part a regular part of American life for decades without jailtime, child-seizure, decapitation with a rusty blade, enforced listening to someone drag their nails across a chalkboard, or even making the naughty child do time-out standing in the corner.

              You’ll argue those decades fall before today’s Right, with its army of snowflake butthurt child-like whiners. True enough, but an appeal to adult responsibility might still strike a distant chord.

              I read a tragic story recently about a true warrior for “Freedom”. He fought every pandemic measure, sneered at covid’s dangers, and refused vaccination. Upon getting the disease, his wife said he wouldn’t see a doctor or get treatment because he didn’t want to add to the covid statistics. Instead he holed-up taking horse de-wormer & zinc until sickness finally drove him into the hospital. He left a widow and three daughters.

              When simple healthcare measures (and the very definition of Freedom itself) is all about “owning the libs”, a whole lot of useless STUPID follows.

              1. “Strangely enuff, I don’t see any of those measures listed in the original post.”

                Sorry, have you not been paying attention? Here, the NYT for you.
                https://www.nytimes.com/2021/08/09/us/ohio-judge-covid-vaccine.html

                “I read a tragic story recently about a true warrior for “Freedom”. He fought every pandemic measure, sneered at covid’s dangers, and refused vaccination. Upon getting the disease, his wife said he wouldn’t see a doctor or get treatment because he didn’t want to add to the covid statistics. Instead he holed-up taking horse de-wormer & zinc until sickness finally drove him into the hospital. He left a widow and three daughters.”

                That’s freedom grb. That’s the right to make ones own choices. Is it tragic? Sure. But it’s his choice to make, and his consequences to live with. That’s what freedom is. That’s what free will is.

                If you want to ride a motocycle or deny a vaccine or risk getting sick so you can protest BLM or any number of other potentially risky options, that’s your choice…because it’s freedom.

                1. Armchair Lawyer : That’s freedom grb.

                  No it’s not; you just show how confused you are. This guy wouldn’t go to a doctor because he didn’t want his case added to the Covid statistics. That’s the exact opposite of freedom. He was a slave to stupidity, stubbornness, and willful ignorance.

                  His three daughters would almost certainly have a father if he’d gotten vaccinated, but “freedom” had him ignore the well-documented evidence on vaccine safety & effectiveness. Meanwhile, he’s taking off-the-shelf horse de-wormer, slavishly following a handful of freak websites and a tiny number of preliminary studies.

                  You don’t find much “freedom” in that bizarre contradiction, do you? Right to the very end, this poor guy was as much a thrall as the lowest medieval serf – only his liege was a mix of hoaxsters, hucksters, and conmen. It took his death to be finally be free of them.

                  His wife is now a widow, pregnant with their fourth child. She just launched a GoFundMe page because the family is buried under debt. I think it’s smug trite bullshit to equate “freedom” with child-like irresponsibility, but that’s just me. If you think otherwise, I’m sure they could use a pledge.

                  1. “This guy wouldn’t go to a doctor because he didn’t want his case added to the Covid statistics.”
                    -And that’s his choice not to go to the doctor. That’s freedom. Choice is freedom.

                    “He was a slave to stupidity, stubbornness, and willful ignorance.”
                    -And that’s his choice. Saying he’s a “slave” to “willful ignorance” ….well, “Freedom is slavery”.

                    “this poor guy was as much a thrall as the lowest medieval serf – only his liege was a mix of hoaxsters, hucksters, and conmen.”

                    Freedom is having the ability to believe in the “hoaxsters, hucksters, and conmen” if the person so chooses to. Or not. That’s what freedom is. Everyone has (or should have that choice). Do you think people “shouldn’t” be allowed to believe in “hoaxsters, hucksters, and conmen” if they want to? That they should be “forced” to believe in what is the “accepted” standard?

                  2. “That’s the exact opposite of freedom.”

                    You’re actually going to say that getting to make your own choices, and taking the consequences, is the opposite of freedom?

                    Dude, you’re saying slavery is freedom. Because the exact opposite of getting to make your own choices, is slavery.

          2. Six entire years in the RC! What endurance, hero! That aside, any comparison between the military vaccination and inoculation regimen and one for the general populace is ridiculous, the military lacks the freedom to make many choices.

        2. What mainstream religion prohibits vaccines?

          Islam calls it a sin to refuse medical treatment because medical treatment comes from Allah through doctors. That’s from the 600’s AD.

    2. “All hail the new ACLU”

      ACLU has always been hostile to religion except when asserting rights of wacko fringe groups as a stick in the eye of the mainstream.

      1. ACLU is now just a nuisance with no credibility. It is just the spearpoint of attack on our nation by the Democrat Party.

  2. In fact, far from compromising civil liberties, vaccine mandates actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.

    Wow. This is straight up Orwellian. Communities of color are hit hardest by the disease primarily because they refuse the vaccine at higher rates. So we’ll further their civil liberties! By forcing them to take it. ACLU should get in a cage match with all the think piece writers taking the position that actually communities of color are right to doubt the medical system because of Tuskegee and we’ll argue with whoever survives.

    1. “This is straight up Orwellian”
      Hence the previous quote

    2. The CDC page Risk of Severe Illness or Death from COVID-19: Racial and Ethnic Health Disparities was last updated on Dec. 10, 2020. The disparities described there could not have been caused by a refusal of blacks to take the vaccine because COVID-19 vaccines were not available at that time.

      Incidentally, polling by the Kaiser Family Foundation shows that 60% of black adults have gotten at least one dose, vs. 65% of white adults, which is not a large disparity. On the other hand, 86% of adults who identify as Democrats have gotten at least one dose, vs. 54% of Republicans. (Polling conducted July 15-27, 2021, results published Aug. 4)

  3. It’s American Telephone and Telegraph Company, btw.

  4. People should be free to decline vaccines. Private parties should be free to exclude them. For example, a daycare contains babies who are too young to be scheduled for a vaccine yet. Your infected, unvaccinated child is a threat to them. The daycare should be able to protect the babies by excluding your child.

    1. Protect the baby from what?
      The science tells us babies are more likely to die from choking on a Cheerio than die from covid.

      The lie propagated is two weeks to flatten the curve. No that was 15 months ago.
      All will be good when we reach heard immunity (shh but the target level is a secret and Fauci aint tellin.) No that was 10 months ago
      Don’t question us…because Delta
      70% vaccination will eliminate covid forever (no mention of natural immunity for some reason) No that was 3 months ago

      Here’s the science. covid is here forever, its just another strain of SARS. Life is a minute by minute balance of risks vs benefits

  5. There are many places and times in our current society and systems of laws where vaccines are mandatory, starting with when you take your pet to the vet, and continuing through school, the military, many places of employment.

    Although I don’t like the ACLU position any more than Blackman and for much the same reasons, the reality is that in any objective terms, forced medication has been a reality for a long time in the country. Not just vaccines.

    Consider the incidents of military service personnel and healthcare workers and many other employed who are refusing the COVID-19 vaccine. I don’t see any coherent response when it is pointed out they have already taken vaccines as a requirement of their jobs. Yet for whatever reason (probably a political statement mostly) they don’t want a COVID-19 shot. And now they want to claim “religious” exemption.

    The toxic politics and nihilistic berserker tactics of the right wing in this country has gotten out of hand to the point where the fundamental security of our society is actually threatened. You might call it “mah rights” to infect me with a disease when it is avoidable by simple procedure or safe medication, or “freedumb” to let me get shot with a gun handled by someone who has no idea what they are doing or “creating jobs” by polluting my yard to make the quarterly numbers.

    There is not one but many cases where the rights of a minority get attenuated by the common good. Let’s all agree that this is a slippery slope to tyranny (see China) but unless you want to live with uncontrolled destruction it is something you have to apply sometimes.

    I really don’t like forced medication, but I think the ACLU has taken a tough and principled decision on this.

    1. “Civil liberties be damned”

      1. Your liberty to swing your fist around stops at my nose.

        1. And to protect your liberty, we’ll throw me in jail, so you never have to worry about that risk to your liberty. And we’ll throw you in jail too, just to make double sure that your liberty is protected.

          And as you sit in your jail cell, remember, it’s so your liberty is being protected.

          1. Dude, chill, all we’re talking about is giving you a vaccine, just like all those other vaccines I’m sure you already had in your life. Nobody is talking about throwing anyone in jail.

            1. You don’t have a right to forcibly inject magic medicine in another in order to allay your irrational fears.

              1. Which medicines are the magic ones? Can you provide a list of the vaccines required of schoolchildren or military enlistees, maybe with an asterisk for each one that is magic to allay irrational fears?

                1. Any medicine heralded as safe and effective and necessary lest doomsday ensue.

                  1. In other words, no you can’t.

                    1. No, that is your asseveration; not mine.

                      The Astrazen-Buddist, J&J, Moderna and Pfizer jabs have all been heralded as safe and effective and whose injection is mandated upon the basis that doom shall ensue without them.

                      Safe means nobody dies or suffers adverse consequences as a result of taking the magic medicine.

                      Effective means they work and always work without goalposts being moved as to what efficacy means.

                      That they require “boosters” just months after receiving them is not “efficacy.”

                    2. Safe means nobody dies or suffers adverse consequences as a result of taking the magic medicine.

                      Got bad news for you and your unthinking requirements about Aspirin.

            2. Dude, chill… We’re just forcing you to attend a religious service once a week for an hour. Just like you did when you were a kid.

              (Oh, and if you don’t get the vaccine, yes, people are being thrown in jail….conditions of parole and all).

        2. Your liberty to swing your fist around stops at my nose.

          Unless the fist is gripping a syringe.

          I support the mandatory vaccines, but this is a bizarre argument for it.

          1. And I would like to point out this is still about not overwhelming hospitals, not about protecting other people directly, or even fragile people.

            1. Krayt
              September.2.2021 at 12:31 pm
              “And I would like to point out this is still about not overwhelming hospitals,”

              I have seen numerous stories about 90+% ICU usage, etc

              However, I have yet to see any data on ICU or hospital utilization comparison with same time periods for years prior to covid (2019 and back). If the CDC had that Data, then it has been removed from their website. Would be nice to be able to compare with prior years data to determine if the crisis is better or worse than normal

        3. Yet, you know this to be false. If one is willing to accept the consequences, your nose presents no impediment to swinging their fist.

    2. “The toxic politics and nihilistic berserker tactics of the right wing”

      And the left wing riots, the Burn Loot Murder actual insurrections with government handing over control of sections of the city, their complicity in this literal insurrection … cancel culture … yes, a myth.

      Your so-called principle is no such thing. Equating pet vaccines with people, or occupational requirements with 100% public requirements, show you as just another statist invoking your wants as principles.

    3. Orbital Mechanic
      September.2.2021 at 11:04 am
      Flag Comment Mute User
      “There are many places and times in our current society and systems of laws where vaccines are mandatory, starting with when you take your pet to the vet, and continuing through school, the military, many places of employment.”

      The biggest difference with other vaccine mandates (primarily to attend school ) is that those vaccines have proven to be very effective. So far, there real long term effectiveness of the covid vaccines seems to be significantly less than advertised.

      1. By a 9-1 margin the deaths occurring in hospitals are from the un-vaccinated. To you that equates to “less than advertised.”

        No — the vaccines actually are doing what the CDC says they do. Not what you think the CDC said.

        Go back to taking your sheep de-wormer. To prove you are not a sheep.

        1. How do you explain the numbers in Israel and Iceland, where the opposite is true? Maybe it’s because the vaccine doesn’t work as well? But continue to shag the right-wing bugaboo if it makes you sleep better at night.

          1. It’s because both you and the media which claims to love science don’t understand statistics. Simpson’s Paradox is at play.

          2. Well, duh. It’s because the demographics in Israel with the highest risk of Covid are virtually 100% vaccinated. There aren’t enough unvaccinated people in the vulnerable demographics for them to be driving the hospitalization rate even if they all went straight to the ICU.

            While the demographics with a significant fraction of unvaccinated people are the ones not particularly at risk anyway.

            So, yeah, the vaccinated sick elderly being hospitalized outnumber the unvaccinated healthy youngsters. Go figure…

        2. Orbital Mechanic
          September.2.2021 at 1:04 pm
          “By a 9-1 margin the deaths occurring in hospitals are from the un-vaccinated. To you that equates to “less than advertised.””

          Your response is not related to my comment .

      2. Oh, the new car smell has worn off. But even with delta they are “very effective”. We’ve lost the 95% against symptomatic infection, but we still have a risk reduction against hospitalization ranging from 80-97% depending on whose numbers you read.

    4. The toxic politics and nihilistic berserker tactics of the right wing in this country has gotten out of hand to the point where the fundamental security of our society is actually threatened. You might call it…“freedumb” to let me get shot with a gun handled by someone who has no idea what they are doing

      So, the 2nd Amendment “threatens the fundamental security of our society.” OK. What about the 1st? Are you against “freedumb” of any Tom, Dick, and Harry to spout off about stuff when they have no idea what they’re talking about? I bet you are! Well, don’t worry — the ACLU is with you all the way! “Tough and principled”!

      1. I am sure you are just fine with bullet-proof backpacks and active-shooter drills for elementary school students because to you that is freedom to pursue your gun fetish.

        1. Should the right to vote be removed from anyone that would vote for communists?

    5. The ACLU has a different mission statement than the military, in case you hadn’t noticed. And, in the case of the latter, 1. the inoculations were for deployment readiness, 2. the military is not the US population at large, they do not have the same freedoms.

  6. Witnessing the fall of classic liberalism from grace is watching like the fall of Afghanistan: you had no idea how weak the foundations were, so the collapse just kind of takes your breath away.

    1. Pfft. The rot at the ACLU’s foundations has been obvious for decades. Their refusal to defend the 2nd amendment, or even admit that it guaranteed an actual right, was a purely political decision to oppose a particular civil liberty they didn’t like.

      And then, when Heller and McDonald came along to remove the already inadequate fig leaf of “We’re just following what the courts say it means!” instead of giving in, they declared that they though the courts were wrong.

      1. Yes, the proof of the rot at the ACLU’s foundation is that they disagree with your interpretation of the 2nd amendment.

        1. It really isnt up for debate amongst honest people.

        2. Well, yeah: They’re rotten enough to have adopted an utterly absurd take on the 2nd amendment in order to have an excuse for not defending it. And stuck by it when the Supreme court pointed out they were wrong.

          If they’d just said, “Sure, it’s an individual right, but the NRA’s got that one handled, we’re concentrating our limited resources elsewhere.” I’d have no beef with them. But they had to lie about the 2nd amendment to excuse their lie about defending all civil liberties.

          1. An absurd take that lasted for over a century virtually uncontested. And now that historical take continues to be contested.

            You can think you’re right, but it’s a sign you’re not dealing in facts to insist everyone who disagrees with you is being absurd.

            1. Arguing that the crystal clear language of the 2nd Amendment doesn’t guarantee a right while spewing some nonsense about penumbras and privacy guarantees all kinds of “rights” is the height of absurdity.

              But whatever, “living constitutionalism” just means the Constitution is meaningless and deserving of less textual deference than a statute, so it’s pointless to argue with you.

              1. crystal clear
                That’s a tell.

                it’s pointless to argue with you
                Ipse dixit isn’t an argument.

            2. “An absurd take that lasted for over a century virtually uncontested.”

              That is, itself, a lie. And a pretty nervy one.

              You will find, if you bother to look, that the ‘collective right’ interpretation the ACLU appeals to originated in the 20th century, and while it became a fad among lawyers for a while, it was never uncontested, nor ever gained much traction with anybody else.

  7. At this point there is a question whether the vaccines are really effective. Israel is currently going through a huge spike/3rd wave even though it has one of the highest % vaccination rates. Granted, vaccinated individuals have less severe outcomes than non vaccinated. Recently a Texas nursing home had a breakout of 9 covid infections among previously vaccinated, yet none of the patients who had prior covid infections were re-infected in that outbreak.

    Based on current known medical facts, being infected with the real covid provides much greater long term immunity.

    At this point, it would seem that mandating a vaccine that so far has proven to have limited success is overkill.

    1. What disturbs me is that mRNA vaccines are absurdly easy to update. Almost on a software update level. In theory you should be able to roll out updates for each new variant as it shows up. Like, next week!

      Yet, this isn’t happening. They’re just applying more and more pressure to people to accept the original vaccine. I had Covid, and I see no point in getting a vaccination for the strain I had, but if they’d updated the vaccine to cover new strains, it would make sense for me to get that.

      I expected I’d be seeing such updated vaccines in use by now!

      I think what has happened is that the pressure that was put on the regulatory authorities to streamline vaccine development has now been lifted, and they’re back to their old games. And now we’re stuck with the original vaccine, with updated vaccines back on the normal glacially slow schedule that the virus has no trouble outrunning.

      1. There have been PR announcements from various companies about new versions of the vaccines targeted at COVID variants. Pfizer, for example, announced their Delta-targeted vaccine at the start of August.

        You’d need to ask the various approving agencies why they aren’t being manufactured and distributed.

    2. We should mandate anyone under 40 and with good immune systems just contract the virus – for the good of the rest of society.

      1. KCar
        September.2.2021 at 2:14 pm
        “We should mandate anyone under 40 and with good immune systems just contract the virus – for the good of the rest of society.”

        In many respects, as bad as you solution sounds, It is probably the best long term solution.

        1. People used to hold chicken pox parties, to get all the kids in the neighborhood infected and get it over with. So it’s even a tested idea.

          1. Yeah, some of my friends came over when I had chicken pox as a kid. Of course, we didn’t know at that time that shingles were caused by the same virus, we just knew that if you got chicken pox as an adult it was seriously bad news.

        2. Strange /s that back in April 2020 we were at “two weeks to flatten the curve”. The science that was rarely spoke of, the protocol was never going to “save” a single live. Flattening the curve just spread the hospitalizations over a longer period of time. The area below the line(hospitalizations) will be exactly the same.
          But today we are back to shutdowns, masks, restrictions. With exactly the same outcomes. Not a single hospitalization will be prevented, only delayed.
          The science told us the way to save lives was to identify and protect the vulnerable.
          But ~16 months later, we are still treating the entire population as having exactly the same risk profile. Stripping 85% of the population of their civil rights in a failing attempt to protect the small number known vulnerable.
          If we would have had school in person full time last year, with a focus on providing for children with known co-morbitities, today we would have a student population with natural immunities. Schools would be no problem. If you are healthy and under 55 years of age, same thing, natural immunity.
          With vaccines filling in the gaps.
          What the virologists were telling us 16 months ago has been proven. the Virus is going to virus. Protocols will only provide momentary blips in the natural data lines.
          But the Govt administrative class used this disaster(never let a disaster to to waste!) to flex its administrative emergency powers(have to create the emergency first) but locking down shoe stores, and bars, concerts, and churches. But keep open Home Depot, and allow massive riots. Strip owners of rental properties of their property without due process.
          And here we are.

    3. We don’t know whether natural infection or vaccination does better long-term protection. We do know the risk profile of natural infection is intolerable.

      One study from IIRC Kentucky found a 2x higher re-infection rate among convalescents than the breakthrough rate among vaccinated people. It’s contradicted by one from Israel, possibly the one you’re thinking of, that found far better protection after natural infection.

      For long term, we have solid data from Ellebedy’s team at WUSTL that natural infection leaves people with long lived plasma cells in their bone marrow, indicating long term protection. They haven’t published their work on vaccinated people yet but said informally they’ve found the same.

      1. You mean this study, I assume.

        I notice that most of the previously infected were infected in October-December of 2020. And only reinfections that occurred in May-June 2021 or later were counted. 6-8 months after their infection.

        By contrast, vaccination could have been as little as two weeks prior to the reinfection, and the vaccine wasn’t really available in meaningful quantities until 2021.

        So you’re comparing the resistance of people who were at the peak of vaccine effectiveness to people who had Covid a half a year or more earlier.

        While natural immunity probably lasts a long time, just like the vaccine, it does drop off a bit after a while. So failing to control for this was a serious omission.

  8. I really like reading your posts and hearing what you have to say, Josh, but you “shoulder” proofread more before you publish them.

  9. I was brought up as a Christian Scientist. Christian Scientists are a big reason that religious exemptions to many vaccine laws exist–the church lobbied for them during the Nixon years, when the presence of Christian Scientists in the White House (Haldeman, Erlichman, etc.) gave them a sympathetic ear. I wish that those exemptions had not existed, and that I had received the normal set of childhood vaccines. I would have been spared what were probably the two worst health episodes of my life had I received the MMR and tetanus vaccines. That experience will always color my feelings on this issue.

    1. MarkW201, that is not the fault of religious exemptions, that is the fault of your parents.

  10. I am a fairly religious Christian (not born that way but converted as life went on), and I have not heard one religious objection that makes sense and would not otherwise apply to polio, MMR, or any of the other countless vaccines that people take.

    I dont think God wants his followers to die from deadly illnesses.

    So frankly, I have no possible idea what the “religious objection” is, unless you are like a Jehovahs Witness or something, so I find it difficult to accept why you should make an exception for religious reasons UNLESS you can actually explain what those objections are!

    There aren’t that many Jehovahs Witnesses around, so that isn’t the reason for all the unvaccinated, so what’s wrong with, at the very least, having people applying for religious exemptions to make a coherent argument?

    1. God said do not put me to the test, so I always thought declining modern medicine “because it made you look like you had less faith in God” was always a non-starter.

      Basically, “Hi, God. We could cure this, but if you want it cured, I have faith in you!”

      1. Of course faith in nothingness is a separate issue. As with censorship, the First Amendment is about denying potential dictators some of their greatest tools: censoring opponents, and using laws to force the majority’s religion onto everyone, because that makes the majority vote for you.

    2. It reminds of the the resistance to social distancing and vaccine among Ultra-Orthodox Jew.

      There is absolutely nothing in the Torah or Talmud that prevents or discourages vaccination. In fact, when it comes to your own health and helping others, Judaism effectively has a “catch-all” exception, including allowing very religious Jews to work in healthcare fields on the Sabbath.

      As a Jew, I find it very frustrating.

      1. Judaism is not a monolithic religion, and it doesn’t have a Pope that dictates universal beliefs. If you want to see a different Jewish perspective … look at https://www.rodefshalom613.org/

      2. As Krayt pointed out, this is not about how people of faith reason.

        This is about Stopping the Government from abusing their power.
        Sadly, Judges have not understood that simple constitutional foundational premise.
        Allowing govt to dictate how people practiced their faith is a terrible precedent. The truth is, religous people cared just as much about their safety as anyone. Here in Iowa, all the churches I know of, delayed in person services weeks past the Governor lifting all restrictions. Each congregation following the will of the congregants.

    3. Was going to ask the same thing. I’m not aware of _any_ religious order – Christian Scientists and Jehovah’s Witnesses included – who’ve forbidden their adherents from getting one of the available Covid vaccines. What are the religious objections if no religion objects to it?

      1. That is not how religion works, especially for law in the United States.

        1. I’m not saying it’s how religion works for law in the United States. I’m asking as a basic matter what the supposed religious objections to the vaccine are, given that it doesn’t appear to be contrary to the teachings of any religion.

          1. Many orthodox Muslims don’t like vaccines because they have religious figures telling them that they aren’t okay. Some vaccines are created initially from pig cell cultures, which potentially makes consumption by Muslims haram (they disagree internally). Orthodox Jews sometimes take that view, too. Christian Science believes that vaccines are an attempt to correct a symptom and deny the divine realities of the self and subluxation. Fetal tissue is also an issue. The Nation of Islam opposes vaccines due to the fake links with autism and “medical racism.”

            If you only want objections to the COVID vaccine, many people don’t trust the government or a corporation to be honest about what all goes into it. Some “sources” stated that fetal tissue was used in the vaccines, and while people don’t think it’s the case now, it adds to hesitancy. The crazies say that they somehow carry the Mark of the Beast, which obviously Christians wouldn’t really want.

            Again though, that’s not how religion works. Something doesn’t have to be in a teaching to be believed as part of religion. Hinduism doesn’t have teachings, per se, and yet we recognize that it’d be a dick move to feed them beef.

          2. I’m not sure why religious objectors have to be held to a higher standard than the government itself; Their objections to the vaccine make at least as much sense as the government’s demand that people who’ve already had Covid get vaccinated anyway.

            It’s irrationality all around, why shouldn’t the religious get to play that game?

      2. What are the religious objections if no religion objects to it?

        This isnt about a religion.
        “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ”

        It is about an individual’s free exercise. You want to define what some dogma means, that is not part of the debate. Only the individual can do that.

    4. Aladdin’s Carpet
      September.2.2021 at 12:05 pm
      ” and I have not heard one religious objection that makes sense and would not otherwise apply to polio, MMR, or any of the other countless vaccines that people take.”

      In somewhat similar vain is the objection to using the wrong pronoun for the transgender based on a religious objection. That objection should be based the objection to embracing a horrific / dangerous treatment for the mentally ill.

      1. The main religious objection I have read about is that one of the ‘approved’ (as in emergency use only) vaccines was developed with fetal tissue research.

    5. ” have not heard one religious objection that makes sense”

      So? Who appointed you as Religious Belief Czar?

  11. “Your freedom ends where that man’s nose [or being forced to inhale your infected aerosols] begins.”

    1. Then it’s a changed standard. Because prior to this, that wasn’t the standard. People got the flu all of the time; and they weren’t being forced to get the flu vax. The fact that some schools and employers did doesn’t change that.

      So why is this different? And before you tell me “600K dead, OMFG, !!Eleventy!!”, what is the magic number where we’re forced to get vaccinated and when we’re not?

      1. Just because the government hasn’t mandated flu vaccines, doesn’t mean they couldn’t. The unanswered question is what level of scrutiny must the government overcome.

        1. Could they mandate sterilization? Forced pregnancies? Why or why not?

          1. Although the Court infamously upheld forced sterilization in Buck v. Bell, that decision is widely reviled and likely weakened by Skinner v. Oklahoma. Under any level of scrutiny beyond rational basis review, and perhaps even under that standard, the state is very likely to lose.

            Given Roe, almost certainly forced pregnancies trigger some form of heightened scrutiny that the state cannot overcome.

            In contrast for vaccines, the state almost certainly wins if rational basis applies and can prevail under other standards as well.

            1. Why shouldn’t the compelled violation of bodily autonomy by the state be evaluated under strict scrutiny? I can think of nothing more central to existence than autonomy.

      2. No, but they were forced to get all sorts of other vaccines, from measles to whooping cough to hepatitis to polio, as a condition to engaging in all sorts of other activities, including going to school or serving in the military.

      3. “So why is this different? Besides all the dead people, I mean?”

    2. I’m OK making it illegal to intentionally infect another person with COVID-19. What you’re proposing is this absurdist standard whereby you are free from any POSSIBLE danger from others, not actual harm.

  12. The jab freaks, i.e., the needle rapists, argue from a false premise, namely, that each and every unvaxxed’s fist is hitting the rapist’s nose. Such a premise, of course, is absurd, per se.

    1. Libertymike, on the other hand, in an unvaxxed population, one unvaxxed person’s fist can end up hitting a hundred-million people in the nose. That’s the way contagion works. That’s why the delta variant, which evolved probably in only one or a few people, became the dominant strain of virus in the world.

      1. Idle speculation insufficient to justify the presumption that a given individual who refuses to be jabbed must be forcibly injected lest doomsday ensues.

        Besides, there is no Pfizer exception to the Nuremburg Code.

      2. You have to idea how resistance works
        The delta “varient” has always been here. It is weaker than the dominate strain, stronger than other strains already present.
        Go back and look at the charts of cases. Explain January 8th, 2021.
        Fauci refuses to even consider the question in public.
        January 8th was herd immunity to the original variant.
        The last 10 days, Florida is starting its decline of cases. Nothing has changed, except herd immunity to delta is catching up. But Oregon is on the rise.
        We need to transition from stopping covid to learning to live with it. It is never going away.

        1. I wouldn’t go so far as to say that. We can’t make covid go away with today’s medical techniques, but if we got really serious about setting conquering viral pandemics, and hung a few regulators from the nearest lamp post when they got in the way, yeah, we could make covid go away, and a lot of other viral diseases, too.

          It’s theoretically possible to put gene sequencers in public places, and catch a new virus the moment it appears, and the next week you could have a vaccine for it. Nip new pandemics in the bud.

          We’re just not proactive enough, and we let the regulators have too much power to slow down medical progress.

  13. I think several overlooked issues here:

    1. Any mandates are aimed at those employed or using specific government services, not citizens in general, so we all maintain free choice on the question.
    2. Since vaccines help minimize the spreading of the virus, our right to shared air, as healthy and disease free as reasonably possible, is both upheld and made less random, and unknowable. Free choice is enhanced.

    As to religion, why should those who believe in supernatural beings or events have a special right to ignore laws the rest of us are subject to? If I oppose a law based on reason – whether i am correct or not in my reasoning – I am still subject to it, while someone who opposes it because they think a supernatural being or entity demands it, they are not? That makes no sense and grants special rights to those not grounded in reasons or facts.

    Crazy!

    1. “As to religion, why should those who believe in supernatural beings or events have a special right to ignore laws the rest of us are subject to? ”

      Maybe the Free Exercise Clause? Just a thought.

      1. The free expression of religion should not give license to ignore laws. Yes, all Americans should be free to worship, practice rituals, and other religious activities. No, they should not be allowed to preferentially ignore laws.

        If you think that they should, explain why and how.

        1. These privilege-addled clingers can do nothing other than stammer when confronted by The Church Of Driving On Sidewalks, The Church Of Impregnating Minors, The Church Of Crystal Meth, and the Holy Spirit Of Securities Fraud.

        2. Well, what about when a law prohibits part of a ritual?
          https://www.law.cornell.edu/supremecourt/text/494/872
          The peyote sacrament collided with the controlled substance act.

          I think the worshipers should have won that one. I’d feel different if it were a law affecting public safety but this time the government penalized a religious observance in the name of a general law.

          If it were a law affecting public safety, the kind that libertarians find legitimate, then well we shouldn’t have a religious exemption to driving on the right-hand side of the road.

        3. No, they should not be allowed to preferentially ignore laws

          “Don’t ever take a fence down until you know the reason it was put up.” ― G. K. Chesterton

          You are oblivious to the why the fence (1st Amendment) was built

    2. You are, like so many of the vaxx true believers, asserting facts not in evidence, including the whoppers that (1) the jab helps to minimize the spread of the virus and (2) the unvaxxed are exhaling air injurious to the vaxxed.

      1. Mike,

        Studies show that the vaccinated can be as contagious as unvaccinated IF ….. IF …… they catch it. Since they are much less likely to catch it according to multiple studies, that makes them less likely – all other things being equal – to spreading it.

        Science is an incredibly useful tool. Use it.

        1. Yes, the minority of vaccinated people who get infections in the era of delta have viral loads in their noses just like un-vaccinated people.

          That doesn’t mean they are as contagious. A couple of studies, Netherlands and Singapore, apologies for being too lazy to dig up cites, found that vaccinated people have quick sharp drops in viral load, so their impact on transmission is less.

      2. Are you one of those germ theory deniers?

    3. “Since vaccines help minimize the spreading of the virus” – this has not been demonstrated, and the recent data out of Israel seems to disprove this.

      1. AtR, studies from Israel and elsewhere show that the vaccinated can be as contagious as unvaccinated IF ….. IF …… they catch it. Since they are much less likely to catch it according to multiple studies, that makes them less likely – all other things being equal – to spreading it.

        1. Joe – I don’t know of evidence that they are much less likely to catch it … only that they are less likely to have severe symptoms.

          To demonstrate what you suggest, you would need widespread systematic testing to catch all the asymptomatic vaccinated people walking around, but the CDC is actively discouraging testing of vaccinated people.

  14. Just came here to note that ACLU is an initialism, not an acronym.

  15. Why doesn’t the ACLU recognize that locking up all young men, say 15-30, would dramatically reduce violence and death for everyone else in society, thus granting and protecting them their recognized freedoms. Sure the young men don’t get to exercise their rights, but “but these rights are not absolute. They do not include the right to inflict harm on others.” In fact, it would help protect the young men’s freedom. Being locked up for 15 years with sufficient (but not too much) food would prevent them from falling prey to many vices, yielding longer lifespans. The remaining 50 years of life, which for many is greater than they would have gotten outside of their containment, would then be free from many harms.

  16. How many lives and how much property would be saved from criminals if every home had to have security cameras in every room with feeds directly to government observers? Think of how much more liberty we’d have, to be free from all that crime!

  17. The ACLU also won’t support my attempt to get New York v. Ferber (1982) over-turned. So, they also hate free speech.

    [that’s called “framing the issue”….but shhhhh, keep the strategy a secret]

  18. For anyone curious about a legal analysis of religious exemptions, by law professors, there’s a look at vaccine mandates in general and religious exemptions in particular at https://www.lawfareblog.com/Designed-Public-Vaccination-Mandates.

    They did not come to a definite conclusion but pointed out the peyote case (which I personally disagree with btw). If I’m reading them right, they lean toward the side of believing that religious exemptions would be needed in order to pass court challenges.

    1. The Church Of No Pants is intensely interested in this issue.

      As are The Church Of Mandatory Abortion, The Church Of Heroin, The Church Of Shunning Guns, The Church Of Crack, The Sisters Of Holy Prostitution, The Brothers Of Sacred Child Pornography, and The Church Of Driving On The Other Side Of The Road.

  19. I’m not in favor of a blanket vaccine mandate for SARS-CoV-2 any more than I’m in favor of a blanket ban on alcohol consumption or ingesting THC.

    I am, however, very supportive of allowing any private property owner/business to require all those on their property to be vaccinated just as I’m in very supportive of allowing any private property owner/business to ban consuming alcohol or ingesting THC on their property.

    I’m also very supportive of allowing government to ban driving on public roads while under the influence of alcohol or THC because those driving under the influence of these substances pose an undue risk to other motorists, pedestrians, bicyclists, and property.

    Similarly, I’m very supportive of allowing government to ban anyone who isn’t vaccinated against SARS-CoV-2 (at least without true medical reasons for not being vaccinated) from setting foot on public land (streets, libraries, courthouses, sidewalks, parks, etc.) as such individuals pose an undue risk to the general public who also have a right to be in those spaces.

    However, since SARS-CoV-2 appears to be transmitted almost entirely by close “respiratory” contact with others, I don’t see a justification for a government vaccination mandate for those who never set foot on public property. Note, though, that this might also mean that government paramedics and firefighters would not enter a private space, even to save someone’s life, if that space allowed unvaccinated people into it and unvaccinated patients might not be accepted at public hospitals (and private hospitals may have similar restrictions)

    If there were a deadly pandemic caused by a virus that survived outside the body for weeks, easily spread by secondary “touch” or air contact or through vectors and was therefore not easily contained within the bounds of a particular piece of private property, I might support a blanket vaccine mandate just as I support a blanket ban on untrained people experimenting on “their own land” with high yield nuclear warheads.

    1. BadLib: “I am, however, very supportive of allowing any private property owner/business to require all those on their property to be vaccinated just as I’m in very supportive of allowing any private property owner/business to ban consuming alcohol or ingesting THC on their property.”

      One of your examples is (dangerously) prescriptive and the others proscriptive.

      Further, do you envision any legal limits to your support of stores supposedly open to public accommodation demanding personal info or medical intervention in order to transact a sale or items or service at their place of business? Could they demand proof of various other vaccines or medical records showing whether a potential customer has some other contagious malady, or maybe demand their criminal, drug abuse, or psychiatric records to see if they could present a danger to the business and other customers in terms of violence or pathogen, and why not?

      What about if potential customers have disagreeable politics worn on their shirts that might disturb other customers and cause dis-ease?

      Remember, it can be shown in court that Covid shots don’t prevent the transmission of the contagion, that there is a high percentage of breakout “cases”, (a good number of which are hospitalized), that the vaxxed can be asymptomatic carriers affecting everyone around them, that the vaxxed could possibly be shedding the manufacture spike protein to others, and, more importantly, that the vaxxed can and in significant numbers do suffer ill effects from submitting to the Covid shots.

      Why do you suggest such demands and abrogation of personal medical autonomy be tolerated in a “free” world? Could it be you have bought into a demonstrably false sense of safety and its superiority to classical notions of individual liberty?

      1. To clarify further:

        Requiring potential customers to have the Covid never-ending series of shots in order to transact business is (dangerously) prescriptive and a requirement that not happens off property but which lends to a permanent alteration of those potential shoppers’ and clients’ internal physiology, while bans against drug and alcohol consumption on a business property are merely proscribed behavior limited in time and place on commercial premises.

      2. Miss Greenparker –

        Vaccine mandates for Covid are favored due to the pandemic. Businesses are not likely to cut their market for arbitrary reasons which have no effect on their profits. Polio, measles, etc are not current pandemics, though most schools require vaccines. Disagreeable politics are arguably contagious – see Trump cult – but again, businesses have no reason in general to restrict those infected, not is the danger scientifically established (you are wrong about Covid shots, which have been proven to limit transmission, and no, the “breakout” cases are a very low percentage relative to total vaccinated as well as to the unvaccinated cases. A visit to your local ICU will confirm this fact for for you.)

      3. Further, do you envision any legal limits to your support of stores supposedly open to public accommodation demanding personal info or medical intervention in order to transact a sale or items or service at their place of business?

        No. Why should there be? The market will decide whether their requests are reasonable or not. If they make arbitrary requirements without any rational basis, they will lose customers to businesses that don’t make such requests.

        Remember, it can be shown in court that Covid shots don’t prevent the transmission of the contagion, that there is a high percentage of breakout “cases”, (a good number of which are hospitalized), that the vaxxed can be asymptomatic carriers affecting everyone around them, that the vaxxed could possibly be shedding the manufacture spike protein to others, and, more importantly, that the vaxxed can and in significant numbers do suffer ill effects from submitting to the Covid shots

        No; actually almost all of that is stuff that only stupid people who get their information from social media believe. (The things that are true are misleading; it’s true that vaccines do not “prevent” transmission, but they massively reduce it.)

        Why do you suggest such demands and abrogation of personal medical autonomy be tolerated in a “free” world? Could it be you have bought into a demonstrably false sense of safety and its superiority to classical notions of individual liberty?

        Classical notions of individual liberty revolve around property rights. The business owner has the right not to allow people into his store (or otherwise do business with) if they don’t meet his conditions. In a free world, you might have the right to refuse vaccination, but you don’t have the right to force other people to associate with you if you do.

        1. Evidently, you believe store owners that accommodate the public can set whatever conditions upon employees and potential customers. according to their inclinations and beliefs in corporate press and oxymoronic government-corporate “science.”

          Thus far, we’re led to believe Property and Business Owners can’t discriminate based upon race, gender or creed, but, using the current pseudo medical rationale for fascism, could they leagally contend gays experience more HIV and not hire them or insist upon HIV “vaccines”? Perhaps they should insist that everyone on their premises present proof of having undergone HIV therapies or show proof of not being currently infected.

          Also, since those who have taken the Covid jabs experience a rate of non-trivial break-out cases, might not a store Owner and business employee eject any vaccinated person on the premises on the basis of them coughing or looking feverish? Covid vaccined do NOT protect from infection and transmission, according to the CDC, “vax” manufacturers, VAER reports, and numerous personal accounts.

          Could. should Property and Business Owners insist on taking vitals or performing nasal swab tests on hapless customers or employees and report them to authorities, despite the well-documented inaccuracy of such tests and biometric data?

          Can they insist every employee or potential customer show proof of having taken the most recent flu shot, since flu not only kills in large numbers, its usual rate of hospitalizations and deaths have been nearly completely ghosted by those of this “pandemic.” The flu has all but disappeared concurrently with hospitals being paid handsomely with each Covid patient and declared as such via inappropriate and highly inaccurate PCR tests.

          Further, how would mandating yesteryear’s type flu shots for employees and customers even be close to the same as mandating the current and novel gene-altering Covid shots causing a not insignificant number of injuries and deaths in order to transact a sale of product or service upon their premises?

          Do you think such store Owners and Employers should share some level of liability for making the experimental or soon to be approved, (and in rushed fashion, one should add), injections mandatory for employees and patrons of their establishments?

    2. as such individuals pose an undue risk to the general public

      Its the “undue risk” where you fail.

      Risk is relative, and NEVER reaches zero. Why should I be restricted because I accept a higher level of risk. Yesterday I saw the neighbor lady mowing her yard with a mask on (a rural, acreage setting). Good for her. I refuse to live my life based on her level of risk acceptance.

  20. ACLU; Anti Christian Lawsuit Union.
    That one is decades old, decades.

  21. Choose reason. Every time.

    Choose reason. Especially over sacred ignorance and dogmatic intolerance. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, bigotry, superstition, backwardness, and ignorance. By adulthood — this includes ostensible adulthood, even in Texas, Oklahoma, Mississippi, Alabama, and South Carolina — it is no excuse.

    Choose reason. Every time. And education, progress, tolerance, science, modernity, freedom, and inclusiveness. Reject ignorance, superstition, backwardness, bigotry, dogma, authoritarianism, insularity, and pining for ‘good old days’ that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Not ever.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    Thank you.

    Otherwise, you could wind up as a lethally reckless, belligerently ignorant, virus-flouting, gape-jawed, stale-thinking, superstitious drain and stain on society.

    — the Congregation Of Exalted Reason

  22. Great piece, Professor Blackman.

    Today’s new order ACLU will soon come out as a proud American Coercive Law Union, because civil liberties and untortured human rights logic aren’t in vogue or polite, anymore.

    The Union’s letterhead will feature a hammer and sickle and svastkica in rainbow colors and its newly dedicated acronym done in brutalist cursive font evocative of designer boot treads.

  23. This argument is very much premised on the progressive account of freedom. The government can promote liberty by forcing people to do things.

    As it happens, that was (almost) exactly the founders’ view of liberty. It misses the mark when Blackman chooses, “government,” instead of, “the People.” But otherwise, pretty close.

    Throughout Federalist 10, whenever Madison wrote, “liberty,” he intended it to mean self-government by a popular sovereign, on the principle of majority rule. To get that, you have to read Madison in his own extended context, and note also how many confusions and contradictions it creates to read it otherwise. If you disagree, try reading Federalist 10 again, on the premise I suggest, and watch how it makes Madison’s reasoning crystal clear, instead of shot through with ambiguities.

    Sometimes the founders were more explicit. In the 4th Resolve of the 1st Continental Congress, before announcing its rejection of taxation without representation, the Congress said this:

    Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: . . .

    The founders were not unmindful of civil rights. But they were practical about them. They understood that only a power greater than government’s could constrain government, and force it to respect and protect any civil rights which the popular sovereign might choose to decree for the enjoyment of its members. It was on that basis that the founders decreed unbounded sovereign power (not limited government power) to be the foundation of liberty.

    The notion that, “liberty,” means—or in any practical way could mean—civil liberties distilled to their essence, and atomized to eliminate all taint of collective power, is nothing better than an especially egregious delusion cooked up by 20th century libertarians. With one exception, that notion seems without precedent in earlier American history.

    The exception occurred among the most tyrannical subset of Southern plantation owners during the Civil War. Theirs was an ideal of liberty so pure that it rejected every limit upon the personal power of the plantation owner. Unsatisfied by the limited scope of treason against the Union, their conception of atomized personal liberty justified and demanded disloyalty even to the Confederacy as well. When in the later stages of the war, the foundering Confederate government turned finally to the rebellion’s most conspicuous would-be beneficiaries, and asked for a levy on slave labor to aid in the Confederate defense, those idealistic civil libertarians indignantly rejected the request, as an example of exactly the kind of tyranny they quit the Union to escape.

    Even the most-sanctified announcement of liberty in the national canon, the Declaration of Independence, turns out to be misread by libertarians. They see the vague announcement of rights near the beginning, and jump to the conclusion that civil liberties are the subject. To do that, you have to ignore completely the awkward fact that the Declaration is a bill of particulars. And essentially none of the particulars are complaints about abuse of liberties. The complaints are instead, almost entirely, a list of offenses against the power of self-government. Make it a point to notice. And after that, go back and take another look at the opening section, the oft-celebrated veneration of rights. In context, you can see it is introductory, to furnish context for the announcement of popular sovereignty. It is the unconstrained character of the People’s sovereignty which the Declaration actually celebrates, and asserts to be the foundation and protector of the People’s rights.

    Of course all of that is likely to be tough sledding for libertarians. Theirs is a philosophy of government which rejects the notion of sovereignty. That alone should have told them they are far afield from the founders, whom they so often invoke. More generally, it calls into question whether libertarianism is a philosophy of government at all, instead of a limited tool for item-by-item critique.

    1. Yeah. And then they enacted the Bill of Rights, over Madison’s objections. Thanks for the history lesson though, I guess.

      1. Lawification, and when the founders did enact the Bill of Rights, they did so with at least a plausible hope that with popular sovereignty they already had put a sufficient power in place to constrain government—and thus could enjoy rights in a practical way, as opposed to fantasizing about them in a vain way. Experience seems to have borne that out.

        As you know, Madison’s objection was not that constraint was unnecessary, but that it was already sufficient. Modern libertarians’ disdain for the notion of sovereignty dooms their expansive dreams of rights that people can enjoy without need of an enforcement power. The notion is dangerously naive that government can at once be the principal threat to individual rights, and the only means of enforcing them—but what would modern libertarianism be without it.

    2. I mean, you manage to completely misunderstand Madison here, and the context in which he’s writing, and what he said, but other than that, great.

      For example, your comments about the DoI: no, it is absolutely not the case that “essentially none of the particulars are complaints about abuse of liberties.” In fact, many of them are. E.g.:

      • He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
      • He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
      • He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

      • For quartering large bodies of armed troops among us
      • For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States.
      • For cutting off our Trade with all parts of the world
      • For imposing Taxes on us without our Consent
      • For depriving us in many cases, of the benefit of Trial by Jury
      • For transporting us beyond Seas to be tried for pretended offences.

      And when there are complaints about “offenses against the power of self-government” — which indeed there are — you need to ask, compared to what? Of course Madison and the founders thought that what you call self-government was to be preferred to autocratic foreign rule. That does not mean that they exalted what you call self-government over individual liberty. You make the same mistake when you talk about the 4th resolution: of course they preferred the right to participation in their own government to not having the right to participate in their own government. That says nothing about the apportionment of power between government and individual.

      And the notion that they favored unlimited collective sovereign power is completely unsupported.

      1. Nieporent, the quote from the 4th Resolve contradicts what you say about it. People can read it for themselves. When it says in so many words that a right in the people to participate in their own legislative council is the, “foundation of English liberty, and of all free government,” it is silly to assert that says nothing about apportionment of power between the government and individual.

        As for unlimited sovereign power, apparently you cannot see what is right in front of your eyes. What do you suppose it means to say:

        That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

        Where in that do you see any limitation at all on the sovereign People’s power to constitute and constrain government? I hope you do at least understand that it is that sentence which expresses the intent of the DoI.

        You are at sea on the history here, Nieporent. Our modern predicate history came from an era where sovereignty as an issue had largely disappeared from active political discourse. The founders’ success finally put long-running controversies on that topic to sleep. Consequently, history students from my grade-school era and yours got little training on those issues.

        But the founders’ predicate history was different than ours. It was pickled—back for more than a century and half—with upheavals and controversies about what sovereignty was, where it came from, how it worked. The nature of sovereignty was the overriding political controversy of their age, in Great Britain and in America. It is fair to suggest that the American Revolution was the product and culmination of that controversy.

        Without encountering it first-hand in original documents, you are ill-equipped to see that past as it was experienced in the founding era. Of course, you are in plentiful company. That may have contributed to your assurance that you understand correctly your actually peculiar contrary ideas, which put you at odds with the founders’ thinking. The founders were not libertarians in any modern sense of that word, and modern libertarians are at most only tangentially in the line of descent from 18th century political philosophy.

        If you want a relatively easy initial approach to insight into what I tell you, together with some material to suggest I might have this at least partly wrong, you could do worse than read historian Edmund Morgan’s brilliant book, Inventing the People: The Rise of Popular Sovereignty in England and America. After that, you could try the somewhat more difficult task of researching the works of founder James Wilson, who sometimes wrote on political theory, and who may have been Jefferson’s source for the quote from the DoI I mentioned above.

  24. Where were all of these conspiracy-saturated, half-educated, science-disdaining, superstitious, disaffected, anti-social, ignorant, worthless yahoos when vaccinations were required of children attending school?

    1. It’s a fair question.

  25. So, the ACLU no longer accepts the “principle” of “My body, my choice”?

    Good to know.

    Hear that abortion zealots? The ACLU rejects your right to control your own body, and have an abortion

    1. GregJ, you still have a choice and no one is proposing that all citizens be forcibly vaccinated, but we all need to live with consequences of our choices. Choosing to be an unprotected carrier of a disease during a pandemic rationally means those in our society joining to combat that disease will want you quarantined from certain functions. That’s our choice.

      1. Being unvaccinated does NOT equal being a carrier of a disease.

        When you start with a dishonest foundation, the rest of your ‘argument’ fares no better.

      2. The choice to vaccinate and then carry the disease around while it incubates and mutates in your nasal passage is the choice putting everyone at risk. It is these Typhoid Mary’s perhaps that should be quarantined. Follow the science.

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