Mandeville, LA — When Senator Rand Paul was asked for his take on the ballyhooed measles “epidemic” he let slip some libertarianism some have claimed he has been lacking of late. “I’m not anti-vaccine at all, but most of them ought to be voluntary… [w]hat happens if you have somebody not wanting to take the smallpox vaccine and it ruins it for everybody else? I think there are times in which there can be some rules, but for the first part it ought to be voluntary.”
This prompted CNBC host Kelly Evans to react with astonishment that perhaps Paul “isn’t aware” that the measles “is a huge problem right now.”
Paul retorted, “I don’t understand the point of why that would be controversial.”
Dr. Ben Carson then chimed in with what we’re supposed to believe is the real “conservative” input: “Certain communicable diseases have been largely eradicated by immunization policies in this country and we should not allow those diseases to return by foregoing safe immunization programs, for philosophical, religious or other reasons when we have the means to eradicate them.”
I might ask of Dr. Carson, who is “we” and why shouldn’t my “religious” objections be worthy of consideration? Conservative blogger Rod Dreher made a similar statement at the American Conservative website but Dreher was precise that the feds ought to do it, “I think it is time to consider legal action at the federal level to compel vaccination. I don’t know what the limits on federal law should be, but what we have now is not working.” As we shall see, the “limits” on what the feds should be doing will be made clear.
Let’s start discovering those limits by asking a question. What do all these statements have in common? Everyone being quizzed on how best to play Jonas Salk is either a federal politician, aspiring federal politician or is pining for federal action.
If the feds wish to impose some kind of a federal vaccination edict, under what clause of the Constitution would they assume this power? Does anyone even care anymore? Other than this writer, a few authors I know, and some listeners to my daily radio show, probably not.
This shows just how lonely and abandoned our allegedly revered federal charter has become. It’s use is perfunctory and even if called upon, largely illegitimate and that is the sad state of affairs going into the farcical “primaries” to choose a “constitutional conservative” to run on the GOP ticket. Your average “conservative” knows as much about the Constitution as the Kardashians and care about as much as the infamous clan does about haberdashery.
This is a fair question and as good a one as any to begin a dialogue over the Constitution and whether restoring federalism is even desirable any longer. I believe it is not, because it is anathema to the $4 trillion redistribution scheme run and defended equally by war and welfare corporatists, left and right, Republicans and Democrats.
Still, a compelling case can be made for that Congress was never granted this power. Knowing what that body has done with the responsibility not to torture enemy combatants physically and the next generation financially, responsible for repaying Congress’s 40 year-long spending spree, I am not in the “I trust them” category. But can we answer the question on the Constitutionality of a federal, compulsory vaccine law? Yes we can.
In the early days of the new General Government of the United States as it was then called, an act was proposed to deal with port quarantines, called An Act Respecting Quarantines and Health Laws that went into effect on 25 February, 1799. It basically says that the people working for the Treasury Department, assigned to collect duties and imposts at U.S. ports, must abide by “The quarantines and other restraints, which shall be required and established by the health laws of any state, or pursuant thereto … shall be duly observed by the collectors and all other officers of the United States … they hereby are authorized and required, faithfully to aid in the execution of such health laws.”
This clearly puts the care of public health and the laws needed to execute them in the hands of the state governments. The vessels or “revenue cutters” of the nascent Coast Guard are even ordered to assist in “the execution of the quarantine and health laws” if it be needed. The law was enacted to provide guidance for the collection of revenue due the General Government should a state have to quarantine a foreign flagged vessel and deny or delay it access to its port. This is an important distinction to make, there are three powers Congress is acknowledging that rightfully were reserved to the states, the first of which is cited above.
There are two other powers Congress acknowledges are rightfully reserved to the states in the way the law is written. The act concerns the collection of revenue in the event of the delay or denial of commerce into a port, by a state. Thus, Congress made the distinction that the health laws of the states were not to be abrogated under the Commerce Clause. These days Congress uses the Commerce Clause to micromanage every conceivable transaction and the process behind the transaction, this is obviously, by the plain language of this act, not what the framers of the Constitution intended.
Congress is also acknowledging that the States maintained control over immigration. Why? Denying sailors entry to your port is denying them entrance into your state, a Constitutional principle that the Founders understood but I challenge you to produce a single “conservative” politician today, outside of Arizona, that knows this to be true and acts upon it.
Lest you think that this Act is the only piece of the historical record that I cherry picked let us continue the investigation. In 1843, President Franklin Pierce was sent “An act making a grant of public lands to the several States for the benefit of indigent insane persons.” This act would grant to Congress the power to levy a new tax, purchase lands with the proceeds, build mental hospitals on those lands, and provide for the medical care of the “indigent insane.” When Pierce vetoed this act he explained that Congress had no power of the medical care or medical decisions of citizens, even if they were a “threat” because of their mental condition. His constitutional reasoning should have been recollected when the Medicare Act first reared its monstrous head in the 1960’s. He wrote:
“The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into a novel and vast field of legislation namely, that of providing for the care and support of all those among the people of the United States who by any form of calamity… [or] are subject to want and to disease of body or mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution.”
Pierce wasn’t finished. He then deconstructed the claim that this act was a specific act of medical necessity and so there was no danger of the power being abused in the future. We also have more evidence of the states being perfectly able and indeed responsible for the issues Congress today claims dominion over:
“…if Congress has power to make provision for the indigent insane without the limits of this District it has the same power to provide for the indigent who are not insane, and thus to transfer to the Federal Government the charge of all the poor in all the States. It has the same power to provide hospitals and other local establishments for the care and cure of every species of human infirmity, and thus to assume all that duty of either public philanthropy, or public necessity to the dependent, the orphan, the sick, or the needy which is now discharged by the States themselves…”
What we’ve learned thus far is that the 18th and 19th century historical record is pretty clear when it comes to the power in question: if it existed, it existed within the sphere of power exercised by the sovereign states, not Congress. The fact that Pierce was dealing with the 1843 editions of Debbie Wasserman Schultz and John McCain shouldn’t dampen our reverence for those who took guardianship of the Constitution seriously. As a mater of fact, once upon a time, the Supreme Court even took its constitutional guardianship somewhat seriously.
In 1882, the Louisiana Legislature passed an act to empower the state board of health’s “resident physician of the quarantine station on the Mississippi river” to quarantine ships on the Mississippi river near New Orleans, board them, inspect them for signs of disease and then if the vessel is clear, to assess an inspection fee and release it from quarantine. A ship that was so quarantined and not allowed to leave quarantine because it was deemed a threat to public health, lost some of its cargo to the heat and then sued the state for damages and to have the law struck down as unconstitutional. A lower court agreed but the Louisiana Supreme Court said the legislature was correct, the State of Louisiana had this quarantine power, not Congress. The plaintiff appealed to the Supremes. The case, Morgan’s Louisiana v. Board Of Health Of The State Of Louisiana was decided on May 10, 1886.
In the strongest statement the court has made on the issue of who is in charge of public health according to the Constitution, the SCOTUS gets it right for a change. For context of the Court’s wisdom it is important to quote this passage at full length:
“For the period of nearly a century since the government was organized congress has passed no quarantine law, nor any other law to protect the inhabitants of the United States against the invasion of contagious and infectious diseases from abroad; and yet, during the early part of the present century, for many years, the cities of the Atlantic coast, from Boston and New York to Charleston, were devistated by the yellow fever. In later times the cholera has made similar invasions; and the yellow fever has been unchecked in its fearful course in the southern cities, New Orleans especially, for several generations. During all this time the congress of the United States never attempted to exercise this or any other power to protect the people from the ravages of these dreadful diseases. No doubt they believed that the power to do this belonged to the states; or, if it ever occurred to any of its members that congress might do something in that way, they probably believed that what ought to be done could be better and more wisely done by the authorities of the states who were familiar with the matter. But to be told now that the requirement of a vessel charged with contagion, or just from an infected city, to submit to examination, and pay the cost of it, is forbidden by the constitution, because only congress can do that, is a strong reproach upon the wisdom of a hundred years past, or an overstrained construction of the constitution.”
To this day, there is no national quarantine law nor has there been an attempt to pass a national immunization edict, for say Measles. While we marvel at the miracle that is Congress passing on the chance to invent a new power for itself there is some serious stuff at work here. This is likely to become an important piece of information in the near future of the Affordable Care act. The HHS is already flexing its muscles and finding dubious powers to force businesses with religious objections to purchase abortifacients and other contraceptions. Senator Paul may not know it, but he is on solid Constitutional ground as well as moral ground in his opposition to compulsory vaccine laws. Like his father before him, this can set him above and beyond the rest of the bumbling “conservatives” who continue to prove that their guardianship of the Constitution is about as important to them as taking the time to learn what I just presented to you.