I don’t like mandates. Never have, never will. Can’t say it more clearly. I know that schools, businesses, and the president can use various tools to force people to get vaccines. And while I do believe people should be the ones to make those decisions for themselves and their families, I also believe there are tipping points.
We are at such a point.
Science tells us the Delta variant is more than twice as contagious as previous variants, more likely to result in hospitalization, and more children are becoming infected. In the week ending Sept. 9, 243,000 children were infected with COVID, the second-highest weekly total of the pandemic, with 500,000 infections in the two weeks prior, according to the American Academy of Pediatrics.
The damage the virus does to children should be enough for society to act, but it’s not. There’s also economic damage, U.S. hiring slowed sharply in August, putting even more strain on an economy that isn’t fully recovered. Anecdotally, people are becoming more cautious, staying indoors instead of going out and spending money.
That’s why President Biden threw away his carrot and took out his stick when he announced mandatory vaccine mandates that will impact about two-thirds of the American workforce.
That has brought us to this question — whose rights matter in a society that values freedom of choice? The rights of the few who don’t want vaccines or the rights of society as a whole?
“Individual rights, even those most fundamentally protected by the Supreme Court and by the Constitution, are not absolute,” John P. Feldmeier, a professor of political science at Wright State University, said. “It’s a question of balance,” said Feldmeier, an attorney whose expertise is in civil liberties.
He noted the Jacobson vs. Massachusetts case, the precedent-setting 1905 Supreme Court decision known for upholding compulsory smallpox vaccines in that state and now used as justification for mandatory vaccines. The decision, however, also contains another important and little observed component — personal liberty vs. the common good.
Here’s what Justice John Marshall Harden, who wrote the decision upholding the Massachusetts law, wrote about personal liberty:
“It is equally true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
In other words, individual rights can be trumped in favor of the greater societal good. I know that is, in many quarters, an unpopular notion, but it is the law. Period.
“This idea that you can somehow assert a right that will automatically allow you to get out of a general societal requirement just doesn’t measure up with the way constitutionalism is done,” Feldmeier said. “Your claimed right will always be balanced against societal interests.”
Of the roughly 28% of U.S. voters who have not received a vaccine, a very large majority (83%) said they won’t get one, even if it means losing their job, according to a poll reported in Forbes.
That’s easy to say to a pollster; we’ll see what happens when push comes to shove.
We are at a point where my distaste for mandates needs to give way to the common good.
That’s how most Americans feel. Some 60% of Americans — including one in three Republicans — support Biden’s mandate plan, according to an Axios-Ipsos poll. When most Democrats and Independents, and a fairly decent number of Republicans (in this hyper-partisan environment) agree, you can see why the White House felt emboldened to take aggressive action.
I wish it hadn’t come to this. I wish people would have made better choices and I wish the Ohio legislature hadn’t taken health emergency decisions out of the hands of the state health department so it could play petty politics and appease its base.
Wishing is a fool’s errand. Now, it’s time for the needs of the many to outweigh the needs of the few.
Ray Marcano is a long-time journalist whose column appears every Sunday in the Dayton Daily News. He can be reached at raymarcanoddn@gmail.com