“Korematsu was the relocation of all the Japanese Americans out of their homes and put into camps for four years. No due process, no nothing. It was an executive order.”
Messall said that the influence of Jacobson on eugenics and the Japanese internment was ironic in that the Jacobson was not a forcible sterilization or forcible vaccination case, but “just a state statute.”
“And the man who objected [Jacobson]…brought a poor case,” she continued.
“It was thrown out because the claims were not properly stated, and also the statute in Massachusetts did not require you to be vaccinated. So that’s what happened. And yet from that opinion came Buck v. Bell and a horrible history of eugenics.”
The Jacobson v Massachusetts case has been interpreted as the state having the power to vaccinate people against their will, but fortunately that reading is not universal and has lately fallen into disfavor.
“It’s been tempered down in the last few cases that I’ve seen come through, including the United States Supreme Court,” Messall said.
“[However] Justice Roberts referred to it obliquely—and it was not a binding opinion or anything—but in the first couple of cases that came their way on the court, they were referring to Jacobson as if it were authority,” she continued.
“And in the next few cases that came their way, they didn’t do that anymore. There was one line by Justice Gorsuch to the effect of ‘When we just uphold these executive orders blindly, things don’t turn out well.” And he, I know, has a background in eugenics because he wrote a book about physician-assisted suicide [citing Carrie Buck].”
The pro-life attorney said that she hopes the courts will stop relying on Jacobson and start thinking about executive orders in the context of World War II.
“We already been there, done that,” she said.
“That was Germany. That was the Eastern Bloc. We just don’t do these things, although we’re suffering through them right now.”
Messall also thinks that the courts should formally “denounce and overrule” both the Buck v. Bell and the Jacobson decisions. She takes hope from the fact that the Korematsu decision depriving Japanese-Americans of their liberties was eventually denounced.
“That was a very refreshing and hopeful sign,” she said.
Attorneys Brad Bergford and Thomas Renz were also part of the interview. Bergford, who with Messell has been defending church congregations in Colorado, discussed the constitutional right to the free exercise of religion as enshrined in the First Amendment. Renz discussed how “emergency measures” should not be used during chronic situations. As experts say COVID-19 is here to stay, there is no longer a coronavirus “emergency,” he believes, but a chronic situation. Regulations and laws related to masks and other anti-COVID measures should be put “through the legislative process, the regulatory process that’s laid out in the law, just like they would in any other law,” Renz said.
“And then they can deal with the political fallout for destroying businesses and shutting down the country.”