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Tags: Mandates | Constitutionality | Vaccines

Mandatory Vaccination: More Constitutional Than a Military Draft?

Mandatory Vaccination: More Constitutional Than a Military Draft?
(Photo by Spencer Platt/Getty Images)

Paul F. deLespinasse By Tuesday, 27 July 2021 09:21 AM Current | Bio | Archive

Indiana University's requirement that students be vaccinated against Covid was recently challenged by eight students. Their lawyer claimed the requirement violated their right to "bodily integrity and autonomy."

Federal judge Damon R. Leichty, appointed by Donald Trump, upheld the requirement. He ruled that in this situation public health concerns outweigh individual rights.

An even better basis for the judgment might have been that, although people may have a right to bodily integrity and autonomy, they don't have a right to be students at Indiana University.

The decision will be appealed but is very likely, in my opinion, to be upheld.

In the meantime, we need to think about a much stronger measure: requiring everybody (with appropriate medical exceptions) to be vaccinated.

Merely mentioning this possibility will naturally evoke libertarian outrage ("my body, my decision!"), warnings of the danger of an all-powerful government ("beware: the government is taking over the country!"), and impassioned invocations of the right to freedom ("give me liberty or give me death!").

In the current pandemic, slogans like "liberty or death" have an ironic edge.

Liberty and death?

Death for whom?

Vaccine objectors arguably don't just run their own risks.  They could potentially infect vaccinated people who are imunocompromised and children not yet legally eligible for vaccination.

It is true that mandatory vaccination would limit people's freedom.

But all laws limit people's freedom, and we can't get along without laws.

Your right not to have your nose punched requires limits on my freedom to swing my fists.

Some people might argue that compulsory vaccination would be unconstitutional, but legal history does not support them.

Mandatory vaccination would stand on firmer constitutional foundations than military conscription, which is itself a prime example of governmental denial of "bodily integrity and autonomy."

The military draft suffers from three major constitutional objections that do not apply to mandatory vaccination:

First: The Thirteenth Amendment prohibits not only slavery but also "involuntary servitude."

Although the courts have claimed that a draft does not constitute involuntary servitude, it is hard to imagine servitude that is more involuntary. There are no words in the Constitution which suggest mandatory vaccination would be prohibited.

Second: The military draft applies only to a minority of the population, selected on grounds of age and sex.

This is hardly "equal protection of law."

Requiring everybody to be vaccinated would avoid the inherently arbitrary choices that government must make in determining specific individuals who will be drafted.

Third: It is possible to attain the goal of conscription----a robust national defense---by less drastic means, namely an all-volunteer armed force.

But it may be impossible to achieve herd immunity from Covid unless a very high percentage of the population is vaccinated, a percentage which might be elusive if vaccination is not legally mandated.

Could a legal requirement get through Congress? We may find out.

If Congress does not act, we will just have to wait for states, localities, employers, universities, industries, stores, etc. to impose vaccination requirements.

This could eventually create herd immunity.

But some state governments might not only refuse to enact vaccination requirements but try to prohibit lower governments and private organizations from doing so---ironically reducing their freedom.

We have already seen examples of this madness.

Indiana University's vaccination requirement is a good idea that should be copied by other organizations. But people would find it confusing to cope with dozens of different requirements in different places. 

On balance, I think the federal government should just enact a requirement for the whole country.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. Read Professor Paul F. deLespinasse's Reports — More Here.

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PaulFdeLespinasse
Indiana University's vaccination requirement is a good idea that should be copied by other organizations. But people would find it confusing to cope with dozens of different requirements in different places.
Mandates, Constitutionality, Vaccines
607
2021-21-27
Tuesday, 27 July 2021 09:21 AM
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