By Alan Phillips, J.D.
Vaccine Rights Legal Expert
[~2030 words, 6-9 min read]

I’ve observed much confusion about our Constitutional rights (in the U.S.) over my 28 years of vaccine activism and 20 years of legal advocacy. Here are some of the most common misunderstandings:

1. The Declaration of Independence and the Preamble to the Constitution do not grant us any legal rights.

2. We have only the rights set out in the law, specifically, in state and federal constitutions, statutes, and regulations; and the legal precedent interpreting them. One’s personal allegiance may lie elsewhere, e.g., to a higher power, and the words in those laws may derive from our notions of God-given rights or natural law, but our personal beliefs do not supersede the law as written in these laws, nor should they given the great variety of such beliefs.

3. We have both state and federal constitutions. While there is some overlap in the rights granted by each, there are also differences. For example, the wording of some states’ religious liberty clauses suggests greater protection of religion at the state level in those states. However, unless that theory was tested in court, we wouldn’t know for sure. Meanwhile, as federal law is the higher legal authority, the default minimum rights stem from the federal Constitution (as interpreted by the courts).

4. Constitutional rights apply to governments, not to private entities. For example, we don’t have free speech rights with social media, as social media companies are privately owned. So, they can legally censor whatever they want, unless we find an exception to the general legal rule and convince a court to agree with us. Even then, these companies could still do as they please unless we could successfully enforce the court order (a court order is just a piece of paper unless and until it is successfully enforced…)

5. The Constitution itself doesn’t tell us what our rights are in any practical sense, it only establishes broad categories of rights. While this makes it a critical starting point, determining whether or how a Constitutional right applies to a specific situation requires more information in the form of legal research. The result may or may not yield a clear answer; and where disputes arise about what rights apply and how, formal legal proceedings may be needed to resolve conflicting opinions (and court rulings can be appealed, and some appeals appealed again, etc.). So while the federal Constitution may be the supreme law of the land, its practical application comes from the courts’ interpretation of it, set out in legal precedent, and not from the wording of the Constitution alone.

6. The U.S. has separate state and federal legal systems. Some matters aren’t reached by the U.S. Constitution at all, and so can only be addressed by state law. For example, the reason there isn’t one federal law mandating vaccines for all daycares and schools throughout the country is because the federal government lacks the legal authority to do that, due to the the limits built into the federal Constitution. So, each state has its own vaccine mandate and exemption laws for daycare, school and college (however, some federal Constitutional rights do apply to these state laws). However, as the military is a federal jurisdiction, federal Department of Defense regulations determine vaccine mandates and exemptions for military schools and academies.

7. The federal Constitution’s First Amendment grants us the “free exercise” of religion. That is, religious beliefs and practices have some protection from the government. But the boundaries of that protection comes from those state and federal court rulings that make up the body of relevant legal precedent. In other words, there is a national Constitutional standard for all religious exemptions in the country with respect to what beliefs qualify for a vaccine religious exemption, whether the exemption law is a state or federal law. Understanding this national standard well requires studying the large and ever-growing body of legal precedent. In stark contrast, there is no federal standard telling us what medical conditions qualify for a medical exemption, despite there being a federal Constitutional right to a medical exemption. So, state legislatures decide what qualifies for a medical exemption to state-mandated vaccines, for example, while authorities in some other situations defer to CDC recommendations in the absence of clear standards spelled out in the law. So, it doesn’t matter whether we think a particular medical condition should qualify, because we don’t get to make that decision. If we disagree with the standard that applies to a particular situation (school, work, immigration, etc.), or if we disagree with the decision-maker for any given exemption request, we can engage the appropriate political or legal system to try to change the standard generally, or any given specific outcome.

8. Constitutional rights are not absolute. (The only absolute right is the right to think whatever you want to think, but even that right may be subject to government encroachment before long.) When rights conflict, a balance may need to be struck, but health and safety will always trump conflicting Constitutional rights. You can’t legally sacrifice a virgin in the name of religion, for example. On a more practical note, government health authorities are empowered to decide when and how it’s necessary to restrict Constitutional rights to protect public health. If we think officials have misapplied the science or otherwise abused their legal authority, we can engage the available legal or political processes to have our concern addressed.

9. We often confuse or mistake what we think our rights are, or should be, with what they actually are. For example, the cry, “I have the right to decide what to put in my own body!” may sound reasonable, but this is not an absolute right (and we should be very concerned about this). Federal, state, and local governments can declare emergencies and legally mandate vaccines for citizens within their respective jurisdictions, despite any opposing opinions or beliefs we may have. The only Constitutionally required exception is medical; and the law determines what medical conditions qualify for the exemption, or who gets to decide. Once again, if we think the officials involved have misapplied science or abused their authority, we can engage the available legal or political processes to see if we can hold them accountable, change their decisions, and/or change the law. But we don’t control the outcomes of such processes; and in today’s world, neither do the real science and law, necessarily, as they should.

10. Statutes and agency regulations are presumed to be Constitutional, and are therefore enforceable, unless and until a court order says otherwise or the law is changed. It doesn’t matter how obviously unconstitutional a law may appear to us, or how correct our opinion may ultimately be. Each law is “good law” unless and until a court strikes it down or a legislature (or agency in the case of regulations) amends or repeals it. Some disturbing examples of this are state laws in California and North Carolina that allow minors to consent to vaccines. The U.S. Supreme Court has said that parents can and must make important medical decisions for their children, but there are always opposing legal arguments, and that’s why courts have to ultimately decide. If all one had to do to be free from the enforcement of a law was to personally declare it to be unconstitutional, there would be no enforceable laws. But this practical condition has a serious downside; it enables corrupt laws to be enforced until someone successfully challenges then in the legislative or judicial systems. The result is that bad laws can remain “on the books” for decades, as many have.

11. Regarding religious freedom: Usually, we only have a vaccine religious exemption when it’s offered, not by default. When we do have the right, the procedure applicable to each specific mandate determines whether we have to explain our beliefs to get the exemption. When we do have to explain or describe our religious beliefs, the law determines what beliefs qualify. For if we, individually, could determine what beliefs were legally protected beliefs, every belief could be a legally protected religious belief. This would not make sense, of course. Sadly, most people’s common-sense approach to explaining their religious beliefs isn’t fully consistent with the legal requirements. We get to decide what we believe, but the law decides what beliefs qualify for a legal exemption right. I used to do 3-hour consultations introducing people to the law on religion and vaccines and going through detailed steps to explain how to write a legally sound statement of religious beliefs opposed to vaccines. These are things that requires years of experience to understand in-depth; some parts of law can be looked up, but others require practical experience over time. This is why there aren’t any lawyers with true legal expertise with exemptions, as only one person has ever done this work in depth over a long period of time (and that person isn’t currently a lawyer).

There’s a reason that an aptitude for analytical reasoning must be demonstrated to get into law school; that not all who enter law school graduate; that not all who graduate pass the bar exam; and that not all who pass the bar exams and are issued licenses make good lawyers. Our legal systems are complex, a reflection of the inherent complexities of modern society. Successful navigation of our legal systems requires raw analytical reasoning ability tempered by formal legal training and years of practical experience. Even then, there’s no such thing as complete mastery of the law, only varying degrees of skill, usually in one or very few specialized areas, that may improve over time with experience. That’s why it’s called a “practice.”

Even the simplest of legal disputes can involve multiple bodies of law—procedural law, evidence law, substantive law, remedies law, and local rules and customs that vary from courthouse to courthouse. And to understand how these various bodies of law apply to any given situation, we must first determine the facts in the situation at hand (and disagreement about the facts is common); next, analyze our view of the facts to determine which state and/or federal constitutional sections, statutes and/or agency regulations may apply to those facts; then, research the legal precedent to form a legal “argument” about how these laws apply, or should be applied, to the specific situation at hand. While this can be somewhat straightforward in some situations, it is often multi-faceted and complex, even in situations that may initially appear simple on the surface. Finally, when you add the multitude of challenges that come with effectively managing a law office with a continually evolving case load, which involves still other skills that take time and practice to master, it’s more a wonder that some lawyers actually do manage all of this well than it is that some don’t from time to time. The practice of law is every bit as complex as the practice of medicine or any other professional practice, if fundamentally different in some respects (e.g., some lawyers would not make good doctors, and vice versa; different skill sets are involved).

Sadly, the above is ultimately moot with respect to resolving the vaccine controversy, because the elite are above the law. Like the real science, the real law just doesn’t apply to them. They don’t randomly ignore the science or law, they do so selectively, strategically, as and when they deem it necessary to advance their agenda or keep us in check. They bribe or coerce legislators to pass laws giving them broad, sweeping powers; and when that’s not enough, they invent or ignore law as needed. And they do all of this with complete and total impunity, as they “own” the science and law, and control the systems that should, were they not controlled, be driven by real science and law. For this reason, there is no real solution to the vaccine controversy in the legal or political systems, and certainly not from yet another brilliant medical study. (I welcome new studies, but respectfully point out that that ten thousand studies we already have documenting vaccine failure make the case quite effectively.) This is not to say we should abandon our efforts in the legislatures and courts, only that such efforts are likely to continue being unsuccessful, overall, until we also address the underlying corrupt power that predetermines the outcomes there whenever pharma feels the need to do that. When that critical missing piece is added, everything we do, together, is what finally breaks through. No one can save us. But we can all save all of us. Stay tuned...

For a more complete explanation about how the U.S. legal systems work and an introduction to all of the vaccine exemption categories, purchase The Authoritative Guide to Vaccine Legal Exemptions e-book.

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