“We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this Court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error.”
From this conclusion Justices Brewer and Peckham dissented, thus evidently holding that the law of Massachusetts, which inflicts a fine of $5 for refusing vaccination, was unconstitutional, whereas the majority of the Court seem to hold that this State law, which can enforce the fine but cannot compel the vaccination, was legal and constitutional, but that nevertheless this fine could not be enforced against any persons who could show that vaccination was dangerous to their health and life, and that the Courts would interfere to prevent its enforcement in all such cases and thus protect the constitutional rights of the individual within that “sphere” of preëminent individual right as already quoted.
Now it seems that the defendant Jacobson did not properly plead that vaccination was dangerous to health and life, in his own case, or offer to prove this, in his own case, and hence the decision was technically given against him, but really, in principle, for him; which decision, as we have shown, was rendered by a divided Court with two judges dissenting who evidently held that compulsory vaccination by fine, as called for in the law of Massachusetts, was unconstitutional.
We therefore believe that this decision, when properly applied, will invalidate all forms of coercive vaccination, whether by inflicted fine, or by denial of some civic right, such as public education, whenever the prosecuted case is properly tried on the correct legal pleas and issues and carried up through our highest Courts on the principles laid down in this great decision and outlined in this analysis.
UNALIENABLE RIGHTS OF THE INDIVIDUAL VERSUS RIGHTS OF MAJORITIES. FALSE IDEA OF THE SUPREMACY OF MAJORITIES SCORED
We often hear it stated that this is a government essentially of majorities and that any majority can legally and properly force its opinion or will upon any minority, no matter how objectionable to the minority this law or will of the majority might be; and that it is the clear right of the majority thus to oppress itself upon the minority and the loyal duty of the minority to yield to this oppression, however odious.
This rank idea of the supremacy of majorities is, I believe, a great legal and moral and cowardly mistake and a gross misconception of our Democratic American Government, because it entirely loses sight of the great basic principle of inherent and unalienable human rights which seems to have been first, or best, expressed in our immortal Declaration of Rights. Therefore, under this basic principle of “unalienable” right, no majorities, however powerful, can legally or morally invade or set aside any of the “unalienable” or inseparable rights of the People, as this is obviously the clear significance and meaning of the terms “unalienable rights,” as I have already shown. Hence this fundamental American principle of “unalienable rights” calls in trumpet tones from the lines of the Declaration and Constitution and gives this warning to all majorities, however powerful: “Thus far shalt thou go but no farther, and here must thy power be stayed”—that is, stayed at the approach to every sacred inherent and unalienable right of the individual necessary to the life, liberty, health and happiness of the individual.
We have often heard the phrase quoted, “This is a government of laws and not of men,” which is only another way of stating what I am here contending for, viz., that this Government of Americanism is not based essentially on mere numbers or majorities of “men,” but chiefly on naturally or divinely ordained principles or “laws” of eternal human right and justice, and, more particularly and essentially, on the great basic American law or principle of “Unalienable Rights” of the People, which is the great American “Sanctuary” of Liberty and Right that no majority or minority can invade or profane.
Majorities can, of course, properly prevail over minorities in all matters that are purely selective or elective or which can be determined only by preponderating vote, but cannot prevail over any defined or established inherent, unalienable or constitutional right of the individual, and it has often been well said that Constitutions are made especially to protect minorities, and not majorities, who already have the preponderant political and legislative power in their hands and do not need such protection.