Are Vaccine Mandates Unconstitutional?

In my previous article I wrote a summary of what I thought were the strongest arguments for a Christian resisting the vaccine mandate. I have argued elsewhere that aside from issues of conscience and health, if a Christian is under the vaccine mandate they should consent and be vaccinated. Many people helpfully responded that they thought there were other reasons, aside from conscience and health concerns, for why a Christian should still resist the mandate. Before I responded to those, I wanted to demonstrate that I did not have “rose-tinted glasses” on concerning the mandate; I find many aspects of the mandate itself troubling. Many of the problems I listed out in my “steel man” argument I do not ultimately find persuasive, but some of them I have no ready response to because I think they are correct.

In fact, you’ll notice in my previous article that I in no way argued in defense of the vaccine mandate, I simply stated that Jesus’ teaching to “go the extra mile” compels Christians to suffer gladly under the yoke of governmental overreach and to normally consent (with the many caveats present in the first two points of my article). The “walking the extra mile” assumes already that what is being asked of you is itself wrong, demeaning, and humiliating. So, my argument that Christians should normally consent to the mandate is not dependent on making the mandate appear morally right. So I have no interest in defending the mandate itself. Rather, my aim is simply to help Christians who are affected by the mandate think through what to do, how to be a faithful witness to Christ in a confusing time, and to help others better understand where people who disagree with them are coming from. If by the end of this article you are not persuaded, but are more understanding towards why other Christians arrive at different conclusions than you do, I will be happy.

What Does Romans 13 Mean for the Constitution?

In this article I will respond to the most common argument I hear when people explain why Christians are not bound to obey the vaccine mandate: The vaccine mandate is unconstitutional, and the highest authority in our land is the Constitution. The 14th amendment protects me from the state depriving me of “life, liberty, and property”. So, Romans 13 does not apply here.

To respond to this requires two considerations: (1) are the current vaccine mandates unconstitutional? and (2) does the Biblical teaching on submission to government allow for disobedience to governors or presidents out of a higher obedience to the Constitution? 

Are Vaccine Mandates Constitutional?

First, the argument of the vaccines being unconstitutional does not seem immediately clear. If anything, the evidence seems to be inclined in the opposite direction. The fourteenth amendment was added to the Constitution after the abolition of slavery during Reconstruction (1868), and thus the “life, liberty, and property” clause is intended to protect recently freed slaves from being enslaved or harassed. It seems dubious to interpret it as pertaining to a vaccine mandate (as will be demonstrated below). Further, there has been a history of vaccine mandates in our country, which undermines the argument that mandates are unconstitutional. In 1777, George Washington mandated his army to be vaccinated with a crude small pox vaccine, despite the vaccine having a 5-10% fatality rate –an unthinkable statistic for modern vaccines (current covid-vaccine death rates as reported by VAERS are 0.0021%). In 1809 the U.S. saw the first state law mandating vaccination on the general public for smallpox in the state of Massachusetts. In 1855, Massachusetts went on to pass the first vaccination requirement for students attending school, and in 1922 the Supreme Court case Zucht vs. King established the constitutional merit of vaccine mandates for all public schools.

In 1905, a Massachusetts citizen fought against the vaccine mandate and eventually took his case to the federal Supreme Court. The court decided in a 7-2 majority in Jacobson vs. Massachusetts that “It is within the police power of a State to enact a compulsory vaccination law.” The 50-year-old minister, Henning Jacobson, appealed to the fourteenth amendment of the Constitution, explaining that to receive the vaccine would deprive him of “life, liberty, and property.” The Court responded 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...real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty]...regardless of the injury that may be done to others.

In other words, the freedom of the individual cannot come at the expense of the freedom of the society. The fourteenth amendment, the Court ruled, does not provide exemptions from vaccine mandates (though the ruling clarifies that exemptions for medical reasons could be made).

The situation of Jacobson vs. Massachusetts is obviously different than our current situation in several ways. In some ways the vaccine mandate in the Jacobson decision was more expansive in its scope than the current vaccine mandate, but in other ways the current vaccine mandate is more sweeping. The vaccine mandate in Massachusetts applied to every adult individual who was physically capable of receiving the vaccine. The current vaccine mandate is not that restrictive. It is more limited in its scope and connected to workplaces—if you work for the federal government, health care, or have 100+ employees. And, of course, you have the freedom to quit your job and not be vaccinated. Jacobson had no such alternative available. In this way, the Jacobson mandate is more total in its scope than today’s.

But, in other ways our current mandate is much vaster. The decision that the Supreme Court arrived at was that the state, not the federal government, has the police power to enforce vaccine mandates. Although it is unclear at this point who would be enforcing the current vaccine mandate, even if it came from the federal branch. Local states may choose to use their own police power to enforce it (or may choose not to). When asked about the mandate, Lawrence Gostin, professor of global health law at Georgetown University, explained: “I should say that it’s a misconception that President Biden has the power to have a nationwide vaccine mandate. Traditionally, vaccine mandates have been imposed by cities and states.” But, he also immediately qualified: “I think the courts will absolutely support and uphold vaccine mandates, particularly in the private sector, and they also will when states and cities require vaccines.”

Also, the situation that triggered the vaccine mandate was significantly different than our own. Smallpox was more infectious than covid is today and had a 30% fatality rate (covid in America currently has a 1.6% fatality rate). If you read the decision in Jacobson vs. Massachusetts, much of the deliberation was context dependent on the deadly nature of smallpox. However, the decision has set a strong precedent for requiring vaccines for many other illnesses besides smallpox (particularly in relation to children attending public schools, see here and here). Further, the decision grants some interpretive leeway by granting the authority to each state “to determine under what conditions health regulations shall become operative.” In other words, just because the current pandemic is not a smallpox pandemic, does not mean that Jacobson vs. Massachusetts no longer applies.

But it is possible that the Supreme Court takes up a case concerning the current vaccine mandates and uses Jacobson as a means by which to overturn the current vaccine mandates, ruling them unconstitutional. But the exact opposite is also possible. Back in August, the Supreme Court denied taking up a vaccine mandate case from students at Indiana University, which may signal their unwillingness to overturn vaccine mandates. (For a slightly biased introduction to Jacobson vs. Massachusetts and its potential effect on the current vaccine mandate, read this).

Of course, the Supreme Court can make mistakes (Roe v. Wade). I am not arguing the merits of this decision necessarily–this decision actually set the precedent for Buck vs. Bell (1927), which allowed the forced sterilization of those the state deemed mentally unfit to bear children, something most people today would find morally appalling. On the other hand, however, this decision also set a precedent for the recent 5th Circuit Court’s decision to halt abortions in Texas during the covid-19 pandemic, something many conservative evangelicals would celebrate.

If someone is claiming that vaccine mandates are unconstitutional, but the deliberative body responsible for interpreting the Constitution in our government (the Supreme Court) has decided that vaccine mandates are not inherently unconstitutional, then this presents a problem to this particular argument. The argument that Christians are now exempt becomes wobbly at best and a form of special pleading at worst.

Again, one can disagree with that ruling; one can even work to try to overturn it, or search for a different line of reasoning for why they are not obligated to go along with the mandate. But if one is resting all their arguments on “It is unconstitutional,” when that has yet to be proven, then that appears to be an unstable foundation to build an argument on.

Subsidiary Government

Second, let’s imagine that the current vaccine mandates are not constitutional. Do American Christians then have the ability to disobey a president or governor who is contradicting the Constitution? Let’s look at 1 Peter’s injunction: “Be subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to governors sent by him to punish those who do evil and to praise those who do good,” (1 Pet 2:13-14). This tells us that the Bible understands subsidiary government to possess legitimate authority. In Peter’s day, the emperor of Rome was “supreme” as the Constitution is “supreme” in our day, but Christians are bound to also obey the “governor’s sent by him.” In fact, we are to be subject to “every human institution.” But what if a governor sent by the emperor is in contradiction with the emperor? Peter (and the rest of the Bible) is silent on that matter.

Of course, this is not because these instances never happened in Peter’s day. Pontius Pilate, the governor of Judea, was himself recalled in AD 36/37 by the emperor. Political infighting, opportunism, and rebellion were just as common in the Roman Empire as they are today, and subsidiary governors were often deposed for failing the emperor. And yet, all Peter says is that we should be subject to “every human institution,” that is every form of government, “whether it be to the emperor…or to governors as sent by him.” To argue that Christians are freed from obeying a governor if they contradict the emperor is to make an argument from silence. The New Testament nowhere makes that explicit, nowhere teaches anything about that.

Remember, the emperor who was ruling when Paul and Peter were writing was Nero, the cruel, bloodthirsty persecutor of Christians. Yet, they can still write that we are to be subject to the governing authorities, even when they are unjust (see also 1 Pet 2:18-19’s admonition to servants to obey “unjust” masters). So if we can assume that Christians must at times submit to unjust, cruel, wicked emperors, then we must also submit to unjust, wicked, and cruel governors–to every “human institution.” And could we not also assume that there may also be times where this governor’s own unjust wickedness leads him to disobey the emperor?

But, again, the Scriptures are simply silent on the matter. If we are to disobey a clear command of the Bible (“be subject to every human institution”), then we need more than silence.

Since the Bible doesn’t address the nature of obedience to the civil government in a representative democracy, we are left with looking at what the Bible emphasizes and then seeking to apply it with wisdom to our contemporary situation. 1 Peter and Romans 13 encourage us to obey “every human institution” placed over us, even if that government is wicked. My burden is this: we should not disobey a clear command of Scripture for unclear reasons. We should not ignore the Bible where it is loud because of an argument from silence. The unconstitutional nature of the vaccine mandate has yet to be established, and the nature of disobeying subsidiary governments when in conflict with higher governments is not made clear in the Bible. For these reasons, I do not find the unconstitutional argument ultimately persuasive.

Again, if an individual has serious health concerns with taking the vaccine or if they believe that to take the vaccine would require them to sin, then exemptions should be earnestly pursued (see “The Other Cheek”, “The Stolen Cloak”, and the “Post Script” sections of my previous article).

Okay, but…

“If we just consent to this, where do we draw the line? What if the government requires you to start hopping on your left foot from now on? Are you going to obey? Hasn’t God limited the role of government to only deal with matters of “punishing evil”? Aren’t my health choices outside of the government’s God-given sphere of authority?”

I will attempt to answer these in my next article, before finally turning to John Calvin’s teaching the “the lesser magistrate” as a means of lawfully restraining and opposing wicked kings.