Is bodily trespass under medical pretexts constitutional?
Is bodily trespass under medical pretexts constitutional?
No.
Reader comment:
Did you ever include Alan Dershowitz who openly said that if a citizen does not volunteer to take any jab, the police can come into their home, drag them out and force them to take it?
May 2020 - Alan Dershowitz says the state has every right to ‘plunge a needle into your arm’ and forcibly vaccinate its citizens. Sarah Taylor writing at The Blaze
May 2020 - Dershowitz says forced coronavirus vaccination could happen: 'Police power of the state is very considerable.' Charles Creitz, writing at Fox News.
He also said the constitutionality of forced vaccinations "is settled."
"....It is not a debatable issue constitutionally. Look, they have a right to draft you and put your life in danger to help the country. The police power of the state is very considerable."
The famed law professor added that if the disease in question is not contagious — for example, cancer — a person can refuse treatment.
He continued, "[But] If you refuse to be vaccinated [for a contagious disease], the state has the power to literally take you to a doctor's office and plunge a needle into your arm."
"You have no right to refuse to be vaccinated against a contagious disease," Dershowitz added. "Public health, the police power of the Constitution, gives the state the power to compel that. And there are cases in the United States Supreme Court."
"Police Power of the state is considerable"
When I first heard about this, I thought it was propaganda specifically geared to spook people into taking it (vs having it forced). Based on your work so far on this Substack, I understand [thanks to your research] the Public health "laws" (e.g. declaring public emergencies giving the state some extra powers to administer/make available untested substances).
But was the dramatic "drag you into a doctors office and force it" for dramatic effect or was he actually citing something real?
Some responses:
May 2020 - Jason Goodman, Dershowitz Is A Liar, A Coward, A Social Engineer & Wrong About Mandatory Vaccination For Covid-19
December 2020 - Jason Goodman, Alan Dershowitz Returns to Discuss Constitutional Questions About Mandatory Covid-19 Vaccination
My reply, revised and expanded:
The police power to forcibly inject people or otherwise forcibly medically treat them is real, and also unconstitutional.
It’s real, under pseudo-statutes including 42 USC 264.
And pseudo-regulations pseudo-authorized by those statutes, including 42 CFR 70.6.
May 2022 - On the federal government’s plan to use force against American civilians
September 2022 - On why Biden’s comment that ‘the pandemic is over’ doesn’t lift the bioterrorist police state jackboot off our necks.
Plus the states have mini-versions of these same unconstitutional pseudo-statutes and pseudo-regulations. Column 7 of this table shows which states had “vaccination and treatment” provisions on the books as of 2012.
October 2022 - State-level Mini-Me government-run bioterrorism programs
The problem is the lack of federal and state judges who
Understand how executives, using legislatures, have attempted to strip courts of their Constitutional power to review statutes and regulations for Constitutionality, and
Have the will to defy those unconstitutional usurpations of power by the executives, from the legislative and judicial branches.
This is a useful October 2001 American Civil Liberties Union report on that topic written before the ACLU went insane with wokeness and Covid-fear.
October 2001 - Upsetting Checks and Balances: Congressional Hostility Toward the Courts in Times of Crisis.
ACLU wrote it five years after Congress passed a set of court-stripping laws in 1996 — analyzed in the report — and published it a month after 9/11, as Congress was preparing to pass more court-stripping laws through the PATRIOT Act.
‘The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’
These were the words of U.S. Supreme Court Justice Robert Jackson in West Virginia Board of Education v. Barnette. The case arose when a group of Jehovah’s Witnesses challenged public school regulations requiring students to salute the U.S. flag. The government sought conformity. A minority in the community sought freedom of expression. The Court upheld the rights of the minority and thwarted the will of the majority.
The Barnette case, and Justice Jackson’s words, illustrate a vital principle in American life. While the nation’s founders celebrated democracy, they also recognized that certain individual freedoms must never be placed at the mercy of shifting political majorities.
They adopted a Constitution which sets certain individual liberties apart from majoritarian rule, and carved out for the federal judiciary a unique role in preserving these liberties.
There’s a line of federal cases and treatises on the inalienable individual right to bodily integrity, including in medical contexts.
The line carries forward a centuries-old common law precedent which American state and federal courts have been busily and illegitimately ignoring, or reversing, under the Covid national emergency fraud scheme, since January 2020.
The current task is to get those state and federal judges back onto the path where they uphold rather than destroy Constitutional rule of law.
May 2022 - Supreme Court cases, Constitutional amendments, related state cases and treatises on individual liberty; security of person; bodily integrity and legal definition of human being. NOTE: I haven’t updated the timeline to add the final SCOTUS Dobbs decision released last summer and subsequent cases.
Timeline excerpts:
1879 - Thomas Cooley, Treatise on the Law of Torts, or the wrongs which arise independent of contract. p. 29:
"Personal immunity: The right to one's person may be said to be a right of complete immunity: to be let alone."
1890 - Thomas Cooley on Constitutional limitations, quoted in Russ v. Commonwealth, 60 A. 169 (Pa. 1905) and in Wolf v. Scarnati, 104 MM 2020,
"The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail[s], the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power...
If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the Constitution." Russ v. Commonwealth, 60 A. 169, 173
1890/12/15 - The Right to Privacy, Louis Brandeis and Samuel Warren, 4 Harvard Law Review 193. Right to privacy of person, against warrantless search and seizure without due process.
1891 - Union Pacific Railroad Co. v. Botsford, 141 US 250, 251.
"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others."
1914 - Schloendoerff v. Society of New York Hospital, 211 NY 125, 129. NY Superior Court. Justice Benjamin Cardozo:
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained."
1934, Snyder v. Massachusetts, 291 US 97, 105.
"Freedom from unwanted medical attention is unquestionably among those principles so rooted in the traditions and conscience of our people as to be ranked as fundamental."
1990/06/25 - Cruzan v. Missouri Department of Health, 497 US 261.
“Held: The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence….(a) Most state courts have based a right to refuse treatment on the common law right to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, or on both that right and a constitutional privacy right, see, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417.”
If a poisonous needle was constitutional, then why not the death camps?
A totalitarian state can do anything it wants to its subjects. They're not citizens and have no rights. Now that USA has transitioned into a totalitarian state one would expect that no civil rights or human rights apply at all, to anyone. Certainly when the state claims the power to forcibly inject anyone it wants with whatever it wants, well, there are no human rights. Understanding of that situation leads to dystopian fiction like this:
https://odysee.com/@jeremypoole:b/UNJABBED-Episode-1-by-Ken-Avidor:4
Thanks for making the legal point. That said, the totalitarian state in question no longer even pretends to follow its own laws or consitution. C.f. The Julian Assange persecution