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Jacobson v. Massachusetts: State Police Powers Affirmed

In its 1905 precedent setting split decision in the case of Jacobson v. Massachusetts,1 the U.S. Supreme Court, by a 7-2 vote, ruled that state legislatures could use police powers to force a minority of dissenting citizens to use smallpox vaccine for what medical doctors and government officials judge to be the greater good of the majority. Those voting with the majority were justices John M. Harlan, Henry B. Brown, William R. Day, Melville Fuller, Oliver W. Holmes, Jr., Joseph McKenna, Edward D. White. The dissenting votes were cast by justices David J. Brewer and Rufus W. Peckham.2

Those early 20th  century justices based their decision in part on a false premise argued by lawyers representing public health officials, who argued that medical doctors could predict ahead of time who will be injured or die from smallpox vaccination. Doctors have never been able to predict with any certainty who will be injured and die from vaccination.

In affirming the constitutional right of states to use police powers to enact public health laws, the Supreme Court was also reaffirming the roles of state government versus the federal government in public health law. Anything not defined in the US Constitution as a federal responsibility has traditionally defaulted to the states. Public health was not defined in the Constitution as a federal responsibility so public health laws have always been state laws and this is why vaccination laws vary from state to state.3 4

A Utilitarian Rationale Turned Into Law

It is important to note that the Supreme Court ruling in Jacobson v Massachusetts at the turn of the 20th century was clearly based on a utilitarian rationale that a minority of citizens opposing vaccination should be forced to get vaccinated in service to the majority.

Utilitarianism was a popular ethical theory in the late 19th and early 20th century in Britain and the U.S. and was used by government officials as a mathematical guide to making public policy that ensured “the greatest happiness for the greatest number of people.”5 6 Today, utilitarianism has a much more benign and lofty name attached to it: “the greater good.”

Minorities at Risk When State Employs Militant Utilitarianism

Perhaps that is because utilitarianism went out of fashion in the mid-20th century after, beginning in 1933, the Third Reich employed the utilitarian rationale as an excuse to demonize minorities judged to be a threat to the health and well-being of the State.7 Enlisting the assistance of government health officials,8 9 10 11 the first minority to be considered expendable for the good of the State were severely handicapped children, the chronically sick and mentally ill, the “useless eaters” they were called.1213

And when the reasons for why a person was identified as a threat to the health, economic stability, or security of the State grew longer to include minorities who were too old or too Jewish or too Catholic or too opinionated or simply unwilling to believe what those in control of the State said was true… as the list of those the State branded as persons of interest to be demonized, feared, tracked, isolated and eliminated grew, so did the collective denial of those who had yet to be put on that list.14 15

Jacobson v Massachusetts Used to Embrace Eugenics in U.S.

Prophetically, in 1927, U.S. Supreme Court Justice Oliver Wendall Holmes, Jr. invoked the Jacobson v. Massachusetts “greater good” utilitarian decision to justify using the heel of the boot of the State to force the sterilization of a young Virginia woman, Carrie Buck, who doctors and social workers incorrectly judged to be mentally retarded like they said her mother was.16 In a chilling statement endorsing eugenics,17 Holmes revealed the morally corrupt core of utilitarianism that still props up mandatory vaccination laws in the U.S.

Pointing to the Jacobson vs. Massachusetts decision, Holmes declared that the state of Virginia could force Carrie Buck to be sterilized to protect society from mentally retarded people. Coldly, Holmes proclaimed, “three generations of imbeciles are enough” and “The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes.”18

The 1905 U.S. Supreme Court majority made fundamental scientific and ethical errors in their ruling in Jacobson v. Massachusetts. It is clear that medical doctors cannot predict ahead of time who will be injured or die from vaccination and that is a scientific fact.19 20

Utilitarianism Is A Discredited Pseudo-Ethic

Utilitarianism is a discredited pseudo-ethic that has been used to justify horrific human rights abuses not only in the Third Reich21 22 but in human scientific experimentation23  and the inhumane treatment of prisoners and political dissidents here and in many countries,24 25 26 27 which is why it should never be used as a guide to public policy and law by any government.

Although we may disagree about the quality and quantity of the scientific evidence used by doctors and governments to declare vaccines are safe at the population level, at our peril do we fail to agree that, while the State may have the power, it does not have the moral authority to dictate that a minority of individuals born with certain genes and biological susceptibilities give up their lives without their consent for what the ruling majority has judged to be the greater good.

Our Lives Are Defined by the Choices We Make

The journey we take in this life is defined by the choices we make. And if we are not free to make those choices, the journey is not our own. And the choices we make that involve risk of harm to our physical body, which houses our mind and spirit, those choices are among the most profound choices we make in this life, which is why we must be free to make them.

Note: This article was originally published at www.nvic.org as part of a larger article titled “Vaccination: Defending Your Right to Know and Freedom to Choose.” 


1 Jacobson v. Massachusetts. 197 U.S. 11(1905). LSU Law Center.
2 Jacobson v. Massachusetts. Wikipedia
3 National Vaccine Information Center. State Law and Vaccine Requirements. NVIC.org.
4 Cole JP, Swendiman KS. Mandatory Vaccination: Precedent and Current Laws. Congressional Research Service May 21, 2014.
5 Mautner, T. Jeremy Bentham (1748-1832). The Penguin Dictionary of Philosophy. and Utilitarianism. The Penguin Dictionary of Philosophy.
6 Ross KL. The Mummy’s Curse: Jeremy Bentham (1748-1832).
7 Weindling P. Health, Race and German Politics Between National Unification and Nazism 1870-1945. CambridgeUniversity Press 1989.
8 Seidelman WE. Nuremberg lamentation: for the forgotten victims of medical science.British Medical Journal 1996.
9 Seeman MV. Psychiatry in the Nazi Era. Can J Psychiatry 2005; 50(4): 218-224.
10 Mackenbach JP. Odol, Autobahn and a non-smoking Fuhrer: Reflections on the innocence of public health.Int J Epidem 2005; 34: 537-539.
11 United States Holocaust Memorial Museum. Interview with Dr. Michael Grodin on the role of medical doctors in the Third Reich and the ethical duty of doctors today. Mar. 1, 2012.
12 Micozzi MC. National Health Care: Medicine in Germany, 1918-1945. The Freeman Nov. 1, 1993.
13 Mostert MP. Useless Eaters: Disability as Genocidal Markers in Nazi Germany.The Journal of Special Education 2002.
14 University of South Florida. A Teacher’s Guide to the Holocaust: Victims. Florida Center for Instructional Technology 2013.
15 United States Memorial Holocaust Museum. Martin Niemoller (1894-1984).
16 Encyclopedia of Virginia. Buck v. Bell (1927).
17 Black E. The Horrifying American Roots of Nazi EugenicsHistoryNews Network (George Mason University) Nov. 24, 2003.
18 Supreme Court Upholds Sterilization of the Mentally Retarded – Buck v. Bell, 274 U.S. 200, 475 Ct. 584, 71L, Ed. 1000 (1927). LSU Law Center.
19 Institute of Medicine Committee to Review Adverse Effects of Vaccines. Adverse Effects of Vaccinations: Evidence and Causality. Evaluating Biological Mechanisms of Adverse Events: Increased Susceptibility. Washington, DC: The National Academies Press 2012.
20 DHHS. Vaccine Injury Compensation Program Data and Statistics. HRSA Updated monthly.
21 Schultz JJ. The Doctor’s Dilemma: The Utilitarian Medical Ethics of Physician Karl Brandt.University of Toronto Medical Journal 2013; 90(4): 176.
22 Annas GJ, Grodin MA. The Nazi Doctors and the Nuremberg Code. Oxford University Press 1992.
23 Stobbe M. Shameful past of medical trials prompts new US investigation. The Independent Mar. 6, 2011.
24 Hornblum AM. They were cheap and available: prisoners as research subjects in twentieth century America. Brit Med J 1998; 3(15): 1437-1441.
25 Walter M. Human experiments: First, do harm. Nature Feb. 8, 2012.
26 Buncombe A., Lakhani N. Without consent: How drug companies exploit Indian ‘guinea pigs.’The Independent Nov. 14, 2011.
27 Katz E. Human Rights Abuses in Mental Institutions Common Worldwide, Says Perlin.University of Virginia School of Law Feb. 27, 2008.

10 Responses to Jacobson v. Massachusetts: State Police Powers Affirmed

  1. mo garcia Reply

    December 20, 2015 at 8:43 pm

    SCJ Oliver Wendell Holmes was an eugeneticist.

    Oddly, the daughter of Carrie Buck died of measles in 1932 at the age of 8.

  2. Terri Reply

    December 23, 2015 at 7:29 am

    What more people need to ‘awaken’ to is the fact that smallpox INNOCULATION has been around since 15th century China. For centuries people used the scabs from the ‘pox’ and grind it to a dust, which was then blown up the nose of the person being innoculated. That’s it. There were no additives that ‘mad scientists’ increasingly like to put in VACCINES that are directly injected into our bodies. If people would take off their blinders and, at the very least, begin by reading the INGREDIENTS contained in vaccines – and then research those ingredients, perhaps then more of us could then have a more thoughtfully informed discussion about the KNOWN dangers of vaccines. As opposed to merely jumping on the propaganda band wagon and hatefully labeling anyone opposed to mandatory vaccines “anti-vaxers.” All I can say about such people are that they would have been Hitler’s little darlings….so eager to harm another for their own ill-conceived misperceptions. No person, group, organization or government should ever have the right to forcibly inject me or my child with anything!

  3. B. Stone Reply

    December 23, 2015 at 7:41 am

    What this article doesn’t include, however, is that Jacobson opted to pay a $5 fine and was able to avoid being vaccinated. He had previously had bad reactions to vaccines as did his son. Also, I believe the correct spelling of his name is with on o and not an e unless it’s been done improperly throughout the internet.

  4. Mark Reply

    December 23, 2015 at 8:39 am

    This is a very frightening revelation. Should the States use this ruling in the case of vaccinations, how many permanently injured people, especially children and elderly, and deaths will occur? While I support the 10th Amendment, especially in these days when the federal has over reached its authority, this SCOTUS ruling cannot be good for those of us who are educated and realize the dangers vaccines pose.

    Hitler used the State to eliminate people who did not measure up to his belief of an Aryan race. But he was still only the front-man. Those who supported him in the shadows called the tunes as is the case in the US. The “Shadow government” in this country is right in front of our eyes, destroying this country from within yet most people are just plain opinionated and ignorant to know what is happening.

    How do we protect ourselves from being vaccinated against our will short of using force against those who would do us harm? Forget the courts – they are corrupt and will never side with the truth. Judges and attorneys are just as ignorant and are bought and paid for in most cases. How many people does it take to change “The Greater Good” for our own good? How do we live our lives in a country and its Founding Principles of Freedom and Liberty that slowly is dying?

    I would like to know.

    • Colorado Reply

      December 23, 2015 at 2:15 pm

      Take your check book out, and support the cause. One good lawyer, deserves another. And sign up your people for this newsletter. Information is power.

  5. Valerie Borek, Esq. Reply

    December 23, 2015 at 12:11 pm

    I would add that the mandate was upheld in a public health crisis, not in the normal course of things. The context of the perceived risk changes the legal analysis–this gets lost on modern day media, lawyers and even judges. The opinion in no way upheld forced vaccination, and in fact mentioned that the choice between vaccination or fine or jail time did not include forced treatment. It also enshrined the constitutional protection of the medical exemption, IMO, as it mentioned the fact that the exemption in the MA public health law saved it from being completely unreasonable.
    The OWH connection is very important and interesting I believe, as he had vacated the MA court about a year prior to them hearing the Jacobsen appeal.
    Thanks for the article!

  6. Joy H Reply

    December 24, 2015 at 11:15 am

    Another problem is that to get the list of ingredients of vaccines is almost impossible. The local doctors’ offices give you the CDC vaccine adverse reaction sheets while or AFTER your child is given vaccines. There is little in the way of informed consent in reality. It’s up to us that do research the ingredients, like you are stating, to publicize them and educate more parents especially as well as the general adult population who trusts the media and medical professionals to “get it right”. I don’t trust them to do that. We are all human and can make mistakes, regardless of education levels, so I recommend researching anything worth taking a stand on for yourself. Great point, Terri.

  7. CAWS Reply

    December 27, 2015 at 5:58 am

    Go to http://www.cdc.gov and type in Vaccine Media & Excipients 2015 for a list of ingredients in all USA approved vaccines.
    Seven STILL have mercury,eleven now have aborted fetal cells,most of the rest all have aluminum/formaldehyde [carcinogen] and all have the blood /cells of animals,birds or insects in addition to detergents,solvents,antibiotics,antifungals,MSG and many other chemicals.

  8. Alprazolam Reply

    July 15, 2016 at 8:36 am

    Harlan’s decision supported both police power and limits on the power, and his decision would be invoked to support both in later cases. He stated his nuanced opinion on the limits of government power by saying that “general terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence.”

  9. Hosting Reply

    September 27, 2016 at 7:23 am

    Much as Americans like to imagine judges as ahistorical applicators of a timeless code, the court is inevitably influenced by the world around it.

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