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Sept. 16, 2022 - Jim Fetzer
54:53
Counterspeech (13 September 2022) with Deana Pollard Sacks and Jim Fetzer
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and restore true democracy.
Hi, everyone.
This is Dina Sachs, and you're listening to Counter Speech on Revolution Radio.
I have James Fetzer with me today, and we're going to be talking about a filing we did last night in the Third Circuit Court of Appeal in Philadelphia.
Thank you so much, Jim, for joining me.
Oh, it's my pleasure, Dina.
I've read your brief, and I like it very much.
It's very thorough.
It corresponds to the impressions I had from my philosophical research on the nature of freedom of the will when I learned that the Nuremberg Code required informed consent, which entails that a person must be given information about the pros and the cons
About any experimental medical procedure and that it must be done voluntarily, meaning free from coercion and constraint and where there must not be any less intrusive available alternatives, all of which were violated by these mandates.
So I think what you're tackling is a very central issue today.
And it's a sort of thing which would have been wonderful if it could have been confronted right off the bat, but where the very agencies we counted on.
To protect our well-being in accordance with the Constitution, and the Nuremberg Code failed miserably.
I'm talking about the CDC, the FDA, the NIH, all the way up to the WHO, which seem to me to have been bought and sold by big pharma and acting in gross violation of their obligations, both statutorily and morally.
Right, but just to back up a bit for the listeners, there's a case pending in New Jersey, and that's in the Third Circuit Court of Appeal.
I'm in the Ninth Circuit in California, and the Fifth Circuit is Texas and other states, so there's various circuit courts, and these are the level right before the U.S.
Supreme Court.
So any district, I'm sorry, any circuit court ruling in the federal system is appealable to the United States Supreme Court.
So that's what we're trying to get to is a U.S.
Supreme Court who has not made a ruling that's substantive in nature on the vaccine mandates.
The only cases the U.S.
Supreme Court has heard are cases with structural issues or statutory interpretation like non-delegation issues.
So the Supreme Court has not rendered any rulings on this.
And we're trying to get there because the old case of Jacobson versus Massachusetts has been terribly, horribly misconstrued.
And we're trying to get the Supreme Court to take a case.
And when I was looking for the right case to offer an amicus brief to be done to set forth all the law on why it's a fundamental right to reject medication, I found Dana Weaver's pleadings and she had done them correctly.
So that was a big relief because I was seeing a lot of terrible pleading along by the lawyers on our side of this, meaning that you could read the pleadings and you would know they're not going to succeed because they either didn't set up properly for the appeals that need to be done or they didn't bring the right claims or something meaning that you could read the pleadings and you would know they're It's not easy to practice this kind of law.
And And very few people have the time and the luxury of being able to really focus on the Liberty Clause.
I was a professor, so I could do that, but most cannot.
So the first thing you mentioned was the Nuremberg Code.
And I was talking to one of my clients just yesterday, and she said, well, I heard that you can't use the Nuremberg Code.
And I said, well, that's somebody who doesn't understand our Liberty Clause jurisprudence.
Because it's true, the Nuremberg Code does not provide a private right of action.
Um, it's treaties.
Would any kind of international policy treaty, even if we signed a treaty, um, they don't really give substantive rights.
At least that's the way they've been interpreted.
But what most people do not know, and what I know only because, um, of a conversation I had with Erwin Chemerinsky, the Dean of Berkeley, uh, the law school at Berkeley years ago, was that the United States Supreme Court in interpreting the Liberty Clause has had all kinds of tests.
You know, the creative test, the penumbra, as you know, which is the Griswold test, recognizing the right to obtain contraceptives and not allowing a state to prohibit contraceptives.
That was back in the '60s.
And then Roe versus Wade came just a few years later and they threw out the test of the penumbra, penumbra, and all of a sudden it's this scrutiny test.
Then they reverse that and called it an undue burden for the right of abortion in the Planned Parenthood versus Casey case.
So this is an area of law that's extremely complicated, inconsistent, and it's really hard to understand how the court analyzes liberty unless you read every single case, every single substantive due process case, for the last century and analyze them all together.
And that's what I did.
I actually did that years ago in an article called Elements of Liberty.
And that's online.
It's an SMU Law Review article.
But what most people don't know, I'm getting back to the Nuremberg Code.
Can you use it?
Yes, you can.
You can use the Nuremberg Code and foreign law and international policies to interpret the Liberty Clause.
And the court has said that before in a case called Lawrence versus Texas, when the court declared a fundamental right to privacy and sexual relations.
It was a sodomy law that was being considered in Texas, and the court said that the sodomy law was unconstitutional because consenting adults can do what they want, basically sexual privacy.
That case could be at risk because of the way that the court analyzed fundamental rights in the recent case of Dobbs v. Jackson, which overturned Roe v. Wade, and Dobbs v. Jackson reiterated Glucksburg, the Glucksburg case, Washington v. Glucksburg back in And in those cases, what the court said was that if you are seeking to have a right declared fundamental, you must trace the law back.
You must show that the history and tradition of this country And the English common law from which this country's laws respond, you need to show, you need to trace it back and show how basic it is to our concept of ordered liberty.
And unfortunately, I don't know that the lawyers even knew that was what you have to do.
I'm not sure.
I know that in every single pleading I read, even the ones that were pled correctly, the lawyers just stated there's a fundamental right to avoid medication.
But that's all they did.
They stated and they cited, you know, Kruzan or one of the cases that doesn't exactly say that.
But what they didn't do is prove to the court, argue to the court.
Why is it a fundamental right?
How do we know it's a fundamental right?
How do you prove it to a court?
You have to prove it to a court.
Their clerks don't do this kind of job.
They don't have that kind of time.
So what I did when I was seeing what was happening is I put it all together.
And so now this brief, this amicus brief that was filed late last night, explains to the Third Circuit why they must reverse all of the federal courts and all of the state courts that have looked at COVID-19 vaccine mandates, so-called vaccine mandates, really are just injection mandates, to date and why they're all wrong.
And they all are wrong.
And why the Third Circuit should reverse them all and declare That a right to reject medication is fundamental under our Constitution and under the common law from which we came from English common law and American common law.
And I trace the law back to the 1200s with a lot of help from Dan Dobbs and Dan Dobbs's treatise.
But why is it so important?
Why is it so important that we get this right declared fundamental?
Well, because it alters the test.
The courts have been using a very deferential test called rational basis review, and they're reviewing these medical mandates requiring injections under the skin with the most deferential constitutional test.
And I argue that you can't do that with medical mandates.
We've never had that kind of test applied throughout the history of this country, not the Supreme Court level, when it comes to something going into your body against your will.
And so that's why it's so critical to trace the law back and explain why it's a fundamental right to reject medication, unlike abortion rights.
Because abortion rights, if you go back 100 years or 200 years or 500 years, you'll find that it was illegal throughout most of our history.
And so it's hard to say something's a fundamental right when it's been illegal for hundreds and hundreds of years.
But in our case, we have a different situation where the right to reject medication is fundamental.
It comes from the right of trespass to the body, also known as battery law.
And so we can trace it back hundreds of years and we can prove this is a fundamental right.
So, Jim, did you know before we talked about this what it meant to have strict scrutiny applied to a law?
Well, only in a more general way, Dean.
I like, in particular, your talk about bodily autonomy and the right to be free from batteries and that any form of touching can be qualified as a battery.
And obviously, if you're given an injection, if it's involuntary, that's clearly a battery.
And that's what part of the basis for your analysis of this is a fundamental right.
Yeah, I mean, and this is the thing that I had to do.
I mean, I knew this area of law because I taught battery law for 20 years.
I taught torts as a first year class in law school.
And I just knew this from, you know, reading all the years.
And I also happened to have some expertise in informed consent.
And the reason I gained that expertise was not about medicine.
It was about sexual contact.
And what does informed consent mean?
Because that is changing quickly, at least internationally.
At least, you know, we had a really good Trend for several years.
Right now, I'm not sure where we are.
But I have written a chapter in the book that should come out at some point.
I just haven't decided how I'm going to use that information.
But the bottom line is, it's a jury question.
What is material?
What you would want to know before you say yes to any kind of contact, whether it's sexual, whether it's medical or anything.
And one of the main examples given by the Prosser and Keaton Hornbook is if someone challenges you to a fight and you say yes, but they don't disclose they're wearing brass knuckles, then it's invalid because you are accepting a different set of risks than that which are present because the person failed to disclose a material then it's invalid because you are accepting a different set of
And because most people would hesitate to a fight when the other person's wearing brass knuckles, that may be not so much if they were just, you know, wearing gloves or regular gloves.
It's material.
And so anything that's material, certainly a disease, a sexual disease is material.
Certainly, the fact that the injections were not vaccines at the time they were calling them vaccines, and they're vaccines now only because the CDC and the dictionaries changed the definition of vaccines after dozens and dozens of years, hundreds of years.
I mean, it's always meant one thing, and now they're saying, oh, well, it can include this, it can include this gene therapy.
And Dana does a great job of explaining that and how these injections started being called vaccines to try to bring them in to the ambit of, you know, kind of the kind of things that the government can require.
But that's not true.
It's not true of adults.
Only children in school.
And I have a problem with that too, but never adults in this country.
Yeah.
Playing games with words, redefining to be beneficial to big pharma.
I mean, that's completely outrageous.
I think the fact that in this case, the actual consequences of taking these non-vax were unknown because they wouldn't reveal the consequences of the studies they'd undertaken, most of which, it turns out now, as we're gradually gaining access, were overwhelmingly negative.
The pregnant women on whom they tested have axed.
Most of them had abortions, miscarriages.
I mean, it was outrageous.
That's when you observe here.
Unwanted medical injections coerced by the government raise the most urgent of liberty issues, particularly when the injections are new and experimental.
The efficacy and need for the injections are disputed and or the health risks are deadly, serious or unknown.
This was part of their marketing strategy was to make sure it was experimental so they didn't have to even reveal the contents, Dina.
When the government was going to go on to support a program like this, it was completely outrageous and an abdication of its responsibility to the public.
I mean, this was disgraceful from the get-go.
Well, here's what the lawyers have not done to date and what I did differently.
The first thing the lawyers have not done to date is they have not impressed upon the court that at the promulgation stage of these so-called vaccine mandates, there was no due process.
Normally we have normal legislative sessions in deciding whether to adopt vaccine mandates for children in school.
Now distinguish that normal legislative sessions with notice and hearing and opportunity to be heard.
The public can come in, they can get in line, they can Raise questions.
They can talk to their state legislators and say, hey, you know, we want you to oppose this and they can come down and they can vote them out of office.
None of that happened.
This is really, really critical because that due process may be warped and may be corrupt, but at least it's there in every other vaccine mandate until COVID.
Now, this time you saw executive Branch people signing an order, one person, one man most of the time, signing an order, Biden signing an order saying we're going to make sure that Americans are forced to get vaccinated.
Okay, that's a far cry and it's an emergency, meaning all the normal due process is bypassed.
So, because it was an emergency, these executive powers came into play, which the legislature never should have given them in the first place.
But see, they're designed for a real disaster.
They're designed for a real emergency, not for this nonsense.
So, I call it the front end.
the vaccine mandates or so-called vaccine mandates is the promulgation stage.
There was no due process, none.
And the court, the US Supreme Court in knocking out the OSHA mandate because it exceeded this authority given to OSHA by Congress, the court honed in on the fact that OSHA passed those mandates by this emergency standard, meaning they bypass the notice, the opportunity to be heard, the opportunity for public debate, the opportunity to be heard, the opportunity for public debate, the opportunity for any kind of debate over the medical data.
They bypassed it all.
So I say to the court, in this situation where there was no due process at the front end, you must have due process at the tail end, or I call the back end.
That's the time at which the mandates are challenged in court.
If you don't give due process at the back end, you have no due process at any point at all.
And that's what we've been dealing with because the judiciary is adopting the wrong constitutional test.
It's called rational basis review.
It is unprecedented for any kind of medical mandate in the country.
And let me give an example of a mandate that did pass, or a sort of mandate, actually just a state action wanting to get a blood test against someone's will or when they're passed out from a drunk driving incident, like a one-car accident.
And they go to the scene, the police can smell the alcohol, the guy's passed out, you know, slumped over the wheel, clearly intoxicated, probably fell asleep, ran to a tree and didn't even wake up.
The courts have said they can take blood in that situation despite no consent by the drunk passed out person because blood tests have almost zero risk and because the state has such a compelling need for that evidence.
If you don't get the blood test, you're not gonna be able to prove he was drunk later.
You can prove there were bottles in the car, you could prove it smelled like beer in the car, but those things can be present without a drunk driver.
So the only way to prove a driver is drunk and intoxicated at the time when he can't consent because he's passed out from alcohol is to take a blood test against his will.
And the U.S. Supreme Court said you can do that in a case called Schmerber.
So there's one example.
But think about how the court analyzed it.
It's in my brief.
Think about that.
The court went through it like this is a serious issue and they talked about this is a very big invasion of privacy for this man.
However, this was a very serious problem in our society.
Drunk driving, it kills a lot of people and there's no other way to really prove drunk driving but for this kind of evidence and there's zero risk of him dying from a simple blood extraction.
So even with something like that, that's a reasonableness test.
Well, but anyway, is now it's the fourth and now it's a fourth.
See, some of these cases came down before the Fourth Amendment was incorporated through the due process clause of the 14th Amendment, meaning that the original Bill of Rights only applied to the federal government.
And until the Bill of Rights were applied one by one, the Fourth Amendment right against search and seizures, the Sixth Amendment right to counsel, all those things, until they were applied one by one to the states through the due process clause of the Fourteenth Amendment, all the cases arose under just a general due process type argument because they didn't have the incorporation of those provisions yet.
So, but my point is the same.
It's a reasonableness standard under the Fourth Amendment now, But notice they put these laws through the ringer because you're talking about someone's body.
So now you're looking at just the courts applying the wrong standard and really just rubber stamping these mandates, which is so, from my perspective as a constitutional scholar, it is so unbelievable, so outrageous, so unprecedented.
And that's what I'm trying to impress upon the Third Circuit now is you need to reverse all these cases.
Yeah, I think your key point really is rational basis review is a highly deferential review, which presumes that a law is constitutional, and thus a burden is on the challenger to negate every conceivable basis which might support the law, which is a humongous burden.
Strict scrutiny shifts the burden of proof.
Under strict scrutiny, the government has a burden of proving, first, a compelling state interest.
Second, the law is narrowly tailored to achieve the compelling state interest.
And third, no less restrictive means are available to meet the state's objective.
In this case, that would have included Ivermectin, HCQ, for example, which turned out to be highly effective.
Indeed, the whole pandemic was manufactured because they reclassified 38 million cases of the flu the year before.
The following 2000 only, they reclassified 37,998,000 cases of the flu as COVID to generate a pseudo-justification for a pandemic.
And would you believe now, the studies have shown there was no increase of death in any age group because of the pandemic.
The deaths have all occurred in staggering numbers because of the vax.
Yeah, after the vaccine came out, there's enormous rises in all kinds of deaths.
And this is what is so disturbing to me is they've made it very hard to prove causation because, well, first of all, medical causation is always difficult because every single human body reacts differently to everything, you know, so it's always tough to show causation in medical cases and they've made it tougher with the tort reform, but these vaccines or so-called, whatever they're called, inject, I don't call them injections because they're not really vaccines, they're injections.
I reject the new definition, okay?
I call them injections.
I reject the idea that they're vaccines because they aren't vaccines, and people have a lot of positive associations with vaccines, with the word vaccines, because we all were taught growing up that vaccines saved so many people, and they may have.
I don't know for sure.
I have seen data going both ways.
Most of the data supports the idea that smallpox and polio and things like that were eradicated by vaccines.
However, I now know more about some of the reporting and the fact that the sanitation systems were put in at the same time that the diseases just dropped off.
And some of those diseases had vaccines, some did not, but they all dropped off at the same time with proper sanitation of human waste.
So it's really hard to say, but aside from all that, what I'd like to do is just kind of walk through with the audience how this goes.
So the first thing you have to do to get that higher burden of proof, to shift the burden of proof onto the government, is to impress upon the court and convince the court we're talking about a fundamental right being infringed by a coerced COVID injection mandate.
So listen to some of the things the court said because I'm quoting just the Supreme Court here in this first part of my brief and here's what the court said.
Um, about the due process clause, um, and remember, not all these rights were declared fundamental.
Some were, some weren't, but the court always applied a searching level of review and struck down most of the laws involved, meaning they didn't just rubber stamp it.
But the court says the Liberty Clause provides heightened protection against government interference with certain fundamental rights and liberty interests.
In a long line of cases, we have held that in addition to the specific freedoms protected by the Bill of Rights, the liberty specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to direct the education and upbringing of one's children, to marital privacy, to use
We have also assumed and strongly suggested that the Due Process Clause protects the traditional right to refuse unwanted life-saving medical treatment.
I am quoting Glucksberg there at page 720.
So what the court's saying here is all these rights that we Assume are implicit in the Liberty Clause.
They're not in the Bill of Rights.
Okay, the right to marry is not in there, the right to have children, the right to have custody of your children isn't in the Bill of Rights.
But clearly you have a fundamental right to raise your children, to live with your children, to keep your children by your side.
The state just can't take your child upon birth.
So these are implicit rights.
And the way we determine whether they're fundamental implicit rights or just sort of, you know, liberty interests, which aren't fundamental, is we trace the law back and say, how long has this right existed?
Do our people expect this right?
And when it comes to the right not to be touched, the answer is a resounding yes.
And the reason why is because there was strict liability for touching another person.
in a way that is harmful or offensive, well certainly harmful until 1850.
You can trace the law back to the English common law days, the 1200s, 1400s, 1600s.
In 1616, a case came down called Weaver versus Ward.
And in that case, two soldiers were doing a military drill with muskets and one of theirs accidentally went off and it was a total accident.
And the question was, would the one soldier who shot the other by accident be liable?
And the court said, yes, your musket went off.
End of story.
It's strict liability.
So that was the law all the way through American common law until 1850 Um, when a case came down, um, and what happened was a guy was breaking up two dogs in a dog fight.
This is Brown versus Kendall, 1850.
And what happened was someone came up behind the guy who was, you know, hitting the dogs with a stick.
And as he reared the stick back, the guy come up behind him.
He didn't see the guy.
He hit the guy with a stick in the eye.
So the guy who got hit, the guy who approached the guy swinging a stick, which isn't very smart.
But the guy who did that sued the guy who was beating the dogs with a stick.
And the court said, we're going to change the rule now.
And when it's unintentional contact, we're going to require a proof of negligence.
So now you have to show that the person who was swinging the stick around knew or should have known that he could cause an injury like that to another.
In that case, I don't think he knew or should have known.
He was beating dogs and the guy came up behind him.
I mean, he's focused on the dogs.
So my point is just a simple one.
For hundreds and hundreds of years, if you touch someone without their consent, you are strictly liable.
So it finally moved to a negligent standard in 1850, but even after 1850, if you intentionally touch someone in a harmful or offensive manner, you are basically strictly liable.
That's the law today.
So I'm trying to impress upon the court, thou shalt not touch others.
That is so deeply ingrained, and that right turned into the right to reject medical treatment and the right of informed consent.
So we can trace back the law of battery and establish the right of informed consent and to reject medication as fundamental and no one has done this in the court.
So this is what I'm trying to do.
Now Dina, how is this affected by the incredibly wrong decision to make?
Pharmaceutical companies free from liability for the use of vaccines on the ground that they're inherently unsaved, which had to be pre-licensed for pharmacies to put out products that could kill or maim with impunity.
It seems to me that's one of the dumbest decisions ever made by our judicial system.
Right, but you're talking about a different branch of this problem.
You're talking about the problem of immunity and tort liability and the problem of not being able to sue the vaccine manufacturers or so-called vaccine manufacturers.
But I'm talking about government mandates.
So how they work together is the vaccine manufacturers are not liable no matter what they do to you basically or almost.
And if it's intentional, if they do things intentionally, they can still be liable.
But it's complicated.
The way they've written these federal pieces of legislation, the CARES Act, the PREP Act, it's complicated.
And frankly, I don't think the attorneys have challenged those very well either.
But you're talking about governments requiring you take a product and then you take the product and you can't see the product manufacturer.
It's a terrible double rammy on the public. - Dina, could it ill intent be inferred from them having done studies that they've then suppressed that showed that these products, these vaccines are misdescribed as vaccines, injectables, mRNA, whatever, were actually doing tremendous damage to the test subjects that they were not sharing with the public in order to promote were actually doing tremendous damage to the test subjects that they were not sharing
Isn't that a basis for arguing that they had foul intent?
Well, in a sense, yes, and this is what distinguishes straight A law students from the rest of law students.
The straight A law students in my class and all my students all over the years, they're the ones who understand where you put evidence in to the cause of action or the defense.
What element you're going to place that evidence, you're going to place the information into evidence to establish a particular element of the claim or an element of the defense.
So, what I would do if I was going to use that information that the vaccine manufacturers Big Pharma lied to the public, I would use that under something called a doctrine where fraud vitiates consent.
So, if you obtain consent by not providing the medical patient with sufficient information to make a truly informed decision about the medication or the drug, including all risks that the average reasonable person would want to know before saying yes to taking that medication, then you basically do not have consent.
So now what you have is a battery, because a harmful or offensive touching is always a prima facie case of battery, but the general defense that they're going to raise, and remember they have the burden of proof on the defense, is consent.
And so the fraud comes in to destroy their ability to prove consent.
Now, can it also go into their intent?
Well, I think it can, because if you aren't telling people the truth about your product, then you know that, I mean, you're intending to deceive them at the very least, but I think that same intent can be used to show that you are intending at least an offensive contact.
So contact has to be harmful or offensive to create liability for battery.
Harmful is clear, a kick, a shove, injecting something that hurts your body.
But offensive contact is is defined as any contact that would violate social usages.
That's what the restatement says, social usages.
So in other words, you can come up and tap someone on the shoulder and say, hey, what time is it?
That's probably okay.
But you can't grab someone and hug them or kiss them just because they look like your mom.
I mean, there's things you can't do without consent.
Or a number of cases came up where judges kissed their clerks without consent, and the clerk sued the judges.
I mean, there's a number of cases.
And so it was a well-intentioned kiss by the judge.
He didn't want to offend her.
He probably liked her.
But it's against social usages, and he should know that.
So you don't get to kiss people without consent.
So that's what it means.
So when you look at someone lying about About their product to gain consent, you know, they probably wouldn't want it and that dovetails into the social usages aspect of consent because I mean, the prime patient case and consent, because if you're lying about it, you know they don't want it.
And so social usage is also interesting, because even though you could tap the average person on the shoulder for directions or something, if you know that person, and if you know that person does not like to be touched at all, or there's someone who doesn't like you, then you don't get to touch them.
So, I'll give a really good example of this.
There's a case called, the case was Cohen, I can't remember the full name of the case, but what happened was, is a woman had a religious belief that no man should ever see her naked body.
So, at the hospital when she's giving birth, she told the hospital, I cannot have my baby here unless you promise me no man will see my naked body.
It's against my religion.
And the hospital agreed to that.
Then they blew it, and they let a nurse come in and work with her when she was naked, and she found out later she was out of it.
Um, so they tried saying, well, that's okay because most people wouldn't be bothered by that.
But the court said, but you knew that she would be bothered by that.
So once someone knows the preference of the person, they must respect those preferences if they move forward with the contact.
Um, just like if, um, a man knows a woman would never have sex with a married man and he lies, he says he's single and she has sex with him.
Even if you could show, and I don't think you can, but if you could show that most women maybe wouldn't have cared in that situation, that woman did.
And he knew that that vitiates consent, fraud-based vitiation of consent, and that then creates a battery that is actionable because the defense fails.
So there's it said this is what kind of complicates you really have to know the primary case of battery, the primary case of fraud, the primary case of negligence.
You have to know all these and you have to know all the defenses and you have to know how the evidence comes into play.
Just like when everyone was saying.
And even to me saying, well, you can't use the Nuremberg Code in any kind of lawsuit.
I'm like, yes, you can.
Yes, you can for interpreting the Liberty Clause.
Now, is it your best argument?
No.
Your best argument is history and tradition.
Your best argument is showing, look, this is a right we've had throughout the history of this country and all the way back into ancient battery law.
This is, it's absolutely unprecedented for our government to say you must take something into your body that you don't want and could hurt you or you're going to lose your job.
And that's another thing they did to complicate it is that they created an unconstitutional condition.
They did not create a law of general applicability.
They made a condition of employment because the unconstitutional conditions doctrine allows the government to do more things to you If they are conferring a benefit upon you and they're going to take the benefit away if you don't comply.
So, when they're an employer firing you or they're a university telling you, you must stop coming to classes if you don't take the vaccine, it can be a slightly different analysis and that's why they made it so complicated.
They knew exactly what they were doing.
I mean, when people say, well, how can you say this was contrived?
I'm like, look at the evidence of how they've structured everything to kind of weave around the constitutional law doctrine, try to get the best shot they could get at kind of, you know, getting past all the constitutional tests.
But here's the thing that no one has argued in the courts, or at least not that I've seen.
There are numerous scholars, very famous scholars, Richard Epstein, for example, who said, you know, Now coercion is the cornerstone of the unconstitutional conditions doctrine.
So if you're coercing people, like really forcing them to do something with taking away their paychecks and things like that, that makes the analysis basically the same as if it was a law of general applicability.
Because the coercion is the key.
So the government can't say, well, it's just a benefit.
We can take it away.
It's a benefit.
We can do that to you.
Not really.
Not with this level of coercion.
So the court has to see that as well.
I'm telling you, whoever devised this, whoever structured how they were going to force the vaccines on our public, they knew constitutional law.
And I saw it every step of the way.
When I saw how they did it, I thought, you know, someone consulted, you know, probably some person.
Alan Dershowitz will do anything for time.
Yeah, they found some really knowledgeable constitutional scholars and they structured these mandates around the constitutional doctrine to make it more difficult to get the proper remedy in a court of law.
Very significant.
Naomi Wolf was on The War Room with Steve Bannon lately and talked about how it's unknown to parents that these vaccines are having effects on young men, boys, before they develop through puberty that are affecting their ability to reproduce, so that they're going to be sterile, basically, if they take the vax when they're a young man, and that this is something that obviously would be enormous concern to parents if they contemplated giving their children the vax, and that this is something that obviously would be enormous concern to parents if they contemplated
Just one of innumerable illustrations, because sterility for women changes in their menstrual cycle, the incapacity to bear children and all that are also consequences, where these were very cleverly designed to have delayed effects in a multiple different varieties, so it where these were very cleverly designed to have delayed effects in a multiple different varieties, so it But statistically, Dina, there's just no doubt about it.
You have all these medical abnormalities that are following the introduction of the vaccine that were not present prior to the introduction of the vaccine.
And you have funeral directors and embalmers as well as many medical doctors who are reporting these anomalies and it's very obvious when you look at the pattern that they are vax-induced.
I know.
I know.
I told you this story before about one of my doctors in LA.
describing this very vicious form of breast cancer, but only among vaccinated women.
And I asked him to be an expert.
He said he can't because he's already been warned by the medical board of California that if he tells anyone on the news or in a court, he will lose his license to practice medicine.
How incredible is that, Dina, that he can't speak the medical truth, which would save people's lives, because the board is restricting him and he couldn't lose his license to practice his profession.
This is a catch-22 that is totally unacceptable.
It's immoral.
I think the medical boards ought to be held liable for their irresponsible actions.
I agree.
I agree.
But you know who, ironically, is kind of innocent is these doctors.
They don't know the facts.
They do not know.
They are told the vaccines must be, or so-called vaccines, must be recommended.
And they're told, basically, that if they say the opposite, it's misinformation, it will be considered misconduct.
And a lot of them just really don't know.
You know, my mom was told by her doctor in Palm Desert to get this COVID injection.
And you know, she died after the second injection.
But she also had a really bad lot.
I got the lot number and it was given out in Palm Desert, California.
And so far over 30 deaths have been reported from that lot, that batch of vaccine.
So apparently there's some batches that are worse than others.
Um, and, uh, I, you know, I don't know why this has sent to this, you know, very conservative, very older community.
I don't like the fact it just seems a lot of older Republicans were killed because of this, you know, where they distributed this vaccine.
And my mom was one of those.
So there's so many things, but I want to get back to the doctors.
You know, these are the, when you get, um, When you get there's something called the informed intermediary.
I think it's called those are the doctors as a doctor is supposed to be between the patient and the pharmacist between the basic between the patient and even the pharmaceutical.
These are experts who are Basically cut off liability to the pharmacist or the manufacturer because the doctor is supposed to know how to advise the patient and the primary person the patient's supposed to look to for advice is the doctor, not the pharmacist, you know.
And so they've also created, they know this too, you see, they know this intermediary law aspect of causation and of duties in, you know, when people are hurt by medications.
And they've, in my opinion, they sought to shut down that group that's supposed to be there for us, our advocates, our doctors.
They shut them down by misinforming them, making very bold and strong policy statements.
And as some people would say, they've been brainwashing them for years in medical school, telling them The vaccines are the key to everything and if you it's almost like a bullying thing if you if you even venture to get so question that then you're all of a sudden shut down you have no you probably shouldn't be a doctor that kind of thing so it's very strong bullying.
Well, I think your proposal that they're using the wrong standard, that it should be strict scrutiny, is fundamental to the entire enterprise.
And it seems to me, absent that, they're just on a wild goose chase.
They can never defeat this by having to show every possible reason why it might be warranted is untrue.
I mean, that's just ridiculous, it seems to me.
Well, you put it very well in this particular paragraph.
COVID-19 injection mandates involve an enormous amount of financial coercion to obtain reluctant and largely uninformed consent from employees to avoid financial devastation by being fired, for example.
This type of coercion violates the constitutional right of medical autonomy and the Nuremberg Code.
It creates an unconstitutional condition of employment.
I think you're nailing it exactly right.
And this brief, by the way, is available at PACER.gov, but it's also going to be available on the U.S.
Freedom Flyers website and Nations in Action.
Nations in Action sponsored the brief.
Nations in Action is the amicus curiae on the brief.
I'm the amicus counsel on the brief.
You're listening to Revolution Radio.
This is Counterspeech with Dina Sax and James Fetzer today.
Please get online today and give a donation to Revolution Radio at freedomslips.com.
Is that right, Jim?
You got me this radio gig.
But we really appreciate your donations, listeners, because we are 100% listener-sponsored, and we need to stay on the air because we're bringing news items to the public that others won't touch.
And here's your powerful concluding paragraph.
If the Liberty Clause means anything, it means that Americans may not be coerced into giving up deeply rooted constitutional rights to bodily and medical autonomy absent clear and unequivocal evidence produced by the government that the medical procedure is truly efficacious and necessary and that no less intrusive or less risky alternatives are available.
Amicus Curiae asks the Third Circuit to recognize that the right to reject the unwanted COVID-19 injections at issue in this case is fundamental.
The challenges to the COVID-19 injection mandates must therefore be reviewed under the standard of strict scrutiny.
I think you've got it exactly right, Dina.
Well, I don't know how anyone can deny this that this is the law.
I mean, that is so clear to me.
I was so shocked when I I just couldn't believe that the lawyers weren't making these arguments.
But see, for some reason, people just jumped on the bandwagon that Jacobson somehow, you know, govern this case, but even if it did, which it doesn't, even if it did, they didn't apply rational basis review.
Jacobson came down decades before the tiers of scrutiny were created in a case called United States versus Caroline Products in 1938, actually.
So you know, there wasn't even standards of review until then.
And if you look at the court's language very carefully, which I did in the third section of the brief, it didn't, it was not rational basis review.
It was not at all rational basis view.
They made an analogy between that, that smallpox vaccine mandate back in 19, I think it was passed in 1902 and it came in for the US Supreme Court in 1905.
They made an analogy to the defense of necessity for crimes.
OK, which means that you can do things like you can kill someone.
You can certainly in defense of others or necessity.
Let's say you see someone about to, you know, I don't know, push the button on a bomb to blow up a building.
You can shoot that person.
You can.
It's defense of others or public necessity.
There's things you can do.
So if the court's making an analogy to that, what they're saying is that the vaccine mandate might be really, really bad, but it's not as bad as the other thing.
So it's a lesser evil's defense.
This is what the Supreme Court said about the smallpox vaccine in 1905.
They weren't saying this is a great thing.
They were saying it's You know, it's probably the lesser of evils, but they also fundamentally weren't even looking at the vaccine mandate.
They were looking at whether he gets his $5 back.
There was no question.
No one was trying to force him to get vaccinated.
There was no coercion.
There was a $5 fine.
fine.
And one of the things you might notice in my brief is I talk about how the lower court, after he was criminally punished, you know, $5, he appealed that.
And the appellate court on the criminal case said, you know, the worst that can happen to him is $5.
The court said they could not vaccinate him.
If they tried to force, they can't do that.
The court said this, not the U.S. Supreme Court, the appellate court reviewing Jacobson's conviction.
So even the court was saying, look, it's $5.
It's not they can force vaccinate him.
And now they're using that case to say they can force vaccinate our people.
It's just, if you understand the cases, if you read the cases so many times, like I had, you're like, where are they coming from?
How are they saying this?
And why are people going along with it and not saying that's just not accurate?
Well, I don't know.
Big Pharma can hire lots of attorneys, Dina, and pay them big bucks to come up with arguments that sound plausible, even if they're perversions of the law and not in the public interest, because they serve to benefit Big Pharma, and that's what we're up against here.
Congress, I'm increasingly convinced, is As much dominated by Big Pharma as it is by the Israeli political interests that have forever exercised such a powerful influence upon the members of our most august governing institutions.
I know it's it's pretty bad.
I mean, the thing we need to do and I have I actually have a plan and now this group is done.
We need to shift.
In a huge way, shift The finances.
What's going on?
And I know a way to do it, and I'm not sure we'll win in court.
I'm going to have to pitch this to an organization for which I just became general counsel, but they haven't had a chance to announce it yet, so I'm not going to announce it until they announce it on the website.
But we're working on it, and we're working at a very I could think tank level.
We're thinking through on a big level.
We've got real attorneys now and they're not just, you know, good technical attorneys.
These are people who really are philosophers of law and we think through how can we go about this?
How do we take a rifle shot at Big Pharma or the cabal and quick, you know, shotgun it where everything's flying in all directions like these lawsuits have been filed, my God, and they've been so unsuccessful.
So that's what we're doing now.
Now I want to talk a little bit about what you mentioned before is why it's so important to get this test strict scrutiny applied to these mandates.
So now let's go through the three prongs of strict scrutiny so that listeners will understand why it's so important to get the court to see it's a fundamental right to reject medication so that they will apply strict scrutiny.
Prong one compelling interest.
My colleague argues it's not even compelling it's a flu.
You know, if you call it a compelling interest, then I guess every time a flu goes around, it's a compelling interest too.
The problem with that is the Supreme Court has made some comments, not everyone on the court, but one or two justices, just I think one justice made a comment that it's clearly a compelling interest.
I think it was Kavanaugh.
I'm not sure I agree with that, but I'm not sure it really matters.
My concern is they're going to call everything a compelling interest.
You know, the flu goes around, a common cold goes around.
Oh my God, compelling interest.
I would like to think a compelling interest is something really, really urgent.
I know COVID was really devastating even to me and I don't really get that sick ever.
Let's assume there's a compelling interest here.
Now let's go to the second prong.
Is it necessary?
Is it necessary?
Now listen, we've got the CDC committee Remember this case is about the third shot.
This case is about the boosters.
Our health care worker plaintiffs here already had two shots and then it came out they're not effective and one got pregnant and two got sick from the shots.
So trying to reject the third shot, the booster, this is the the booster mandate is what's before the court now.
Now the CDC, as we know, recommended against the booster and then Walensky turned around and And just reverse the committee.
I think one or two committee members resigned over this.
You can't say it's necessary.
The CDC can't even concur on this.
So, if it's not recommended, it certainly isn't necessary.
But there's other things.
There's, of course, the efficacy rate.
When it first came out, oh, it's 100% effective, you know, before anyone really knew because there was no data.
Then, okay, it's a 90%.
Remember that?
Then it's 70%.
Okay, it's 30%.
Okay, after two months, it's 10%.
Okay, this is not effective.
This so-called vaccine, these COVID injections, are not effective for very long, if at all.
And they have huge risks, as you were talking about.
So even if they were able to show it's necessary, and I don't think they can, I think they lose at the second prong of strict scrutiny.
That's the third prong.
Less intrusive alternatives.
This is where Dr. Gold got in trouble because she said she wanted to prescribe hydroxychloroquine.
They wouldn't let her.
Robert F. Kennedy Jr.
in his book The Real Anthony Fauci describes how they falsified the hydroxychloroquine data in scientific studies to make it appear that it's not effective when it is.
But we now have plenty of doctors coming forward to say and they're saying that hydroxychloroquine, ivermectin, not to mention getting out I know.
Not to mention, you know, getting out in the sun, exercising, staying lean, making sure your vitamin D stores are up.
I mean, all those things.
Vitamin C, eating healthfully.
I mean, these kinds of things we've found are very effective in enhancing the immune system and helping people to get over whatever they catch.
So, there's all sorts of less intrusive alternatives.
We have to.
We simply have to learn to take care of ourselves better as individuals or we'll never get through what's coming because even the CDC says, and I reported this in a prior article, every single thing that a vaccine is created for mutates.
We're not going to beat nature here.
Nature's going to beat us.
So the key is not to keep trying to control and manipulate the natural things in the world that can kill humans.
What you want to do is enhance your immune system, make people stronger, make them understand how immunity works, and help them to stay home when they're sneezing and not cough on an airplane without covering your mouth.
I mean, these are the things our people need to realize if we all took care of ourselves.
and didn't sneeze all over an airplane and things like that, we would reduce flus by 90%.
So that's what we need to focus on.
Tina, I think what's really important about your brief is it's predicated on the 1890 Supreme Court clarification of the inviolability of one's body.
That no right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of laws well set by Judge Cooley.
The right to one's person may be said to be a right of complete immunity, to be let alone.
That is so fundamental to your argument, and appropriately so.
And you know, the funny thing too, is that the Supreme Court reiterated, that's called, I mean, Union Pacific Railway Company versus Botsford, that was an 1890 case.
But the court verbatim reiterated that exact same statement in Kruzan, Versus director of Missouri Department of Health in 1990, a century later, and the court went on to say in the Cruzan case, they expanded Botsford's policy and said this, every human being of adult years and sound mind has a right to determine what shall be done with his own body.
And a surgeon who performs an operation without his patient's consent commits an assault for which he is liable and damages.
The informed consent doctrine has become firmly entrenched in American tort law.
The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment.
So what the court's saying here, the most important thing out of that passage is, this is historical.
This right is not something we're making up because we don't want to get a COVID injection.
This is a right that's been entrenched in our law, tracing all the way back to English common law, all the way back to ancient times, to the 1200s.
You don't have to be touched if you don't want to be touched.
So this is really important to understand.
And look how grossly it's been violated by the government, by companies, by schools, by teachers, by everyone whom you think would have better sense and be responsible to this fundamental obligation to respect the integrity of each of our own bodies, as fundamental as that is.
I know.
Well, and of course, there's a big distinction between public entities, public schools, public employers and private ones.
So another mistake I think some of the lawyers have made is they've gone after the private companies.
And I think realistically, in a situation like this, with this horrific COVID mandates going around, we've got to attack them constitutionally first.
Because until we prove the government cannot do this to us, it's going to be a lot harder to prove the private industry can't do this to us.
Because the government owes us more than a private employer.
The government is bound by the Constitution.
Private employers are not.
So the easier case is against the government.
Why people are suing, you know, Kaiser and this and that.
I'm like, guys, let's focus on, you know, getting to first base before we try to hit a home run.
And first base is knocking these mandates out on constitutional grounds.
And the constitutional clause that protects us, that's always protected us for over 100 years, is the Liberty Clause.
We need a Liberty Clause claim to get to the U.S.
Supreme Court.
I know that Dana is going to appeal if we lose in the Third Circuit.
I'm not convinced we're going to lose in the Third Circuit because no circuit has had the opportunity to read a brief like this on this issue.
However, if we win in the Third Circuit, I strongly suspect the Attorney General of New Jersey will appeal.
So I think we're going to get to the United States Supreme Court.
And by the way, Justice Alito And then you have to get, I think, three more justices to agree to hear the matter, and then your petition for certiorari is granted.
goes to the Supreme Court, one justice decides whether to circulate it.
And then you have to get, I think, three more justices to agree to hear the matter.
And then your petition for certiorari is granted.
And then you need five, of course, to win.
So you have to pick up one more.
I believe right now we have five or six that should go our way on this, based on some of the statements that were made.
Unfortunately, it's partisan.
Unfortunately, you know, sort of a Republican versus Democrat thing.
However, when the law is this entrenched, I think we have a really good shot at the U.S.
Supreme Court level and that's why I jumped in this fight with Dana Weaver because she'd done such a good job at honing on some of the best evidence and just simply pleading the case correctly to preserve the issues for the Court of Appeals and for the U.S.
Supreme Court.
So kudos to Dana Weaver.
Thank God for Dana Weaver and I'm happy, very happy to jump in as an amicus for her case for the court.
Well, Dina, I think you have a superb brief, and I wish you well, because you're not just arguing this on behalf of your client.
You're arguing this on behalf of the American people.
I wish you well.
Send me an email at counterspeechusa at gmail.com.
I'll send you a copy of the brief.
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