Many people who are opposed to mandatory Covid vaccinations hold themselves out to be patriots and call those in favor of mandates traitors. Pretty powerful words, and it raises an interesting point as far as American history is concerned, namely, would these patriots of today consider George Washington a patriot or a traitor?

In 1777, Washington issued a mandate that his soldiers had to be vaccinated against smallpox, then known as variola. While British troops had built up an immunity to smallpox, the American troops had not. About one third of those who contracted smallpox died, and Washington feared greater losses to the disease than to battle, as had happened in the American loss in the battle for Montreal in 1775, where the disease had decimated American forces before the battle.

To address this concern, he ordered every one of his troops to be vaccinated against smallpox while they were in winter camp in Philadelphia and Morristown, New Jersey. It was done in secret, to prevent the British from knowing, because even the milder form of smallpox caused by the vaccination took three weeks to run its course, which would give the British enormous advantage if they attacked while the troops were recovering.

The vaccination involved exposing a cut in a heathy soldier to pus from an infected person. Three percent of those vaccinations resulted in death. That made even getting vaccinated a patriotic act. This mandatory vaccination may have been the key to victory over the British and the creation of America as a nation.

Some also argue that mandatory vaccination is unconstitutional because it deprives Americans of exercising their freedoms and liberty.

The Constitutional authority for vaccine mandates was decided in 1905 in Jacobson v Massachusetts. Jacobson, a Lutheran minister, was a prominent citizen of Cambridge, Mass. In response to a smallpox outbreak, the city of Cambridge mandated smallpox vaccinations for all citizens, which state law gave the city the authority to do.

They had imposed a $5 fine on citizens who were not vaccinated. (The fine, of course, granted immunity only from prosecution, not from smallpox.) Jacobson refused to get vaccinated or to pay, arguing that the only people he could infect would be those who made the same choice he had made, that is the unvaccinated.

But the city disagreed and took Jacobson to court over it. Jacobson argued that the mandate violated his liberty as protected by the 14th Amendment to the Constitution. He lost his case in district court and Commonwealth court (Massachusetts is called a commonwealth, not a state), and again in the U. S. Supreme Court.

Here's what the Supreme Court had to say, as written by Justice John Marshall Harlan: “…the liberty secured by the Constitution does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.”

Furthermore, he wrote, the Constitution is based on “…the fundamental principle of the social compact…that all shall be governed by certain laws for the protection, safety, prosperity and happiness of the people, not for the profit, honor or private interests of any one man, family or class of men.”

Let me return to that “commonwealth” designation. There are four commonwealths in the United States, Massachusetts, Pennsylvania, Virginia and Kentucky. There is no real difference between a commonwealth and a state, but I like that the word implies a community of shared good fortune, of shared responsibility.

The Preamble to the Constitution of the Commonwealth of Massachusetts puts it nicely and is reflected in Harlan’s opinion in the Jacobson decision, “…the body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."

To put it differently, we are all in this together, all for one and one for all.

For a dispassionate account of this issue see the Wall Street Journal article at:

Jim Elliott served sixteen years in the Montana Legislature as a state representative and state senator. He lives on his ranch in Trout Creek.