Vaccine Passports As A Constitutional Right

Some critics of vaccines make absurd arguments such as vaccines connect you to the internet and vaccination makes you the legal property of a pharmaceutical company. Those are fun to mock.

More serious are concerns like,

  • Sanctity over one’s own body. If they wanted to protect their body they’d want a vaccine, but more fundamentally the question of choice works if they expose only themselves to risk and don’t impose costs on others when succumbing to risk. Since viruses spread, including pre-symptomatically, failing to take reasonable steps like vaccination violates the rights of others.

  • Creating a dystopian two-tiered society. Vaccination as a requirement to engage in activities that didn’t previously have such conditions impinges on the freedom of people making a choice about their body to engage in commerce and leisure activities. Of course anyone in the U.S. who wants a vaccine can have one, and not being vaccinated increases the risk to others. But it turns out that’s the wrong way of thinking about the rights debate altogether.

Three law professors make the argument that, far from impinging on rights, Americans have a constitutional right to have vaccine passports. Governments are imposing restrictions, and they have an obligation to use means that are the least restrictive of rights possible. That means exempting people who are less of a threat – the vaccinated – from those restrictions.

A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures.

While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be.

The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness.

Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions:

  1. domestic travel and movement, under Fourteenth Amendment substantive due process;
  2. international travel;
  3. uncompensated shutdowns, under the Fifth Amendment takings clause;
  4. abortion, under the constitutional right to privacy;
  5. restrictions on access to gun stores, under the Second Amendment; and
  6. assembly and worship, under the First Amendment freedom of assembly and free exercise clauses.

(Formatting altered from the original.)

Americans favor vaccine passports for air travel by a wide margin but rights aren’t something we vote on. If liberties are going to be restricted, those restrictions should be targeted at those who present a clear risk – and lower-risk individuals should be exempted. In other words, when there are restrictions the government is also obligated to provide for vaccine passports.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. One of the big blind spots in the vaccine passport discussion is how to handle those with natural immunity. There are now multiple peer-reviewed studies demonstrating that natural immunity is as good or better than vaccine acquired immunity and potentially longer lasting. Why then should the government (or a business) force that person to take a vaccine when they pose no more risk to anyone around them than a vaccinated person does?

  2. your analysis falls apart when you consider the fact that vaccines don’t work. stick to miles/points, you’re obviously no health expert.

  3. So now this has become a policy/politics/antifa blog. There is enough of that in the world. I really don’t need to get this on my feed.
    Here is the regression of VFTW:
    1.) Informative, intelligent travel blog
    2.) Travel dribble blog
    3.) Useless, yet mildly entertaining second hand story blog
    4.) Political activist blog

    Sad, really sad

  4. @ Deltahater — Lucky for you, you have the constitutional right to remove this blog from your feed! Haven’t you figured out yet that Gary reads alot and then writes about those things that he finds interesting? If you only want miles and points nonstop, there are other blogs

  5. @Doug: you have a good point. However, as we are learning with each new day comes new data: the latest peer-reviewed info is showing that up to 1/3 of those who have caught Covid-19 and were asymptomatic or had mild cases showed NO antibodies in serology tests 3 months later.

    The other consideration is, how much long-term immunity is stored within the T-cells, and bone marrow, versus antibodies ‘floating’ randomly through out blood? How much cross-immunity will we have gained by exposure to other adenoviruses?

    Unfortunately I believe this is one of those situations where only time will tell.

  6. Spoken like a true fascist.

    Did anyone know that Hitler was responsible for the first anti-smoking campaign in history.

    He did it for “the greater good”

    It always starts that way.

  7. The three authors do not address the fragility of exemption or the possibility of abuse of the inoculation passport, but allude to the waxing and waning of one’s personal situation on page 57: “Regardless, during a pandemic, the relevant immunity, transmission, and other statistics can be a moving target. But one of the advantages of electronic vaccine passports is their potential flexibility.” This statement can also be interpreted as a hazard. Despite one’s best efforts the passport holder may qualify for the exemption one day and not the next. In order to be practical, the passport must have a universally agreed measure and effective period or expiry date. Without commonsense rules the majority will be skeptical of the reasonableness of holding the passport (electronic or physical) and more likely to oppose a mandate.

  8. We need to re-educate the unvaccinated. Isolate them from society, maybe special camps. They are the sources of all the problems in society. If we are to create a perfect society, we must eliminate any sources of disagreement. It may be hard and painful for a little while, but ultimately we will prevail.
    Once vaccinated, we must educate them on why to follow the government. We must take away their ability to thrive in society, relying only on the state. It is for our communal safety, after all. Don’t question us, just trust us.

  9. Dems on abortion: “My body, my choice”
    Repubs on vaxxes: “my body, my choice

    Hey, maybe each side should realize no one likes the government telling them what to do with their bodies.

  10. This is the Dr Fauci of airlines. The legal experts cited are like the health experts with lockdowns

  11. Valid points but where this falls apart is the assumption that our government truly cares about our liberties. They don’t!

    As a friend of mine said recently, he’s in his 80’s, been in political science all his life, and has supported democrats in the past, he’s never seen a party more eager to take control of everything than the democrats of the last 10 – 15 years. And sadly many republicans are going along with it. The COVID situation fits perfect into the Rahm Emanuel’s never let a crisis go to waste. Why does every climate change solution come with a government solution? Look at what’s happened in Australia with COVID. If there isn’t some pushback, that could be us!

    If we don’t start to get back control of our government, both sides of the aisle, and get people who will act in our best interest and not theirs, we are effed when it comes to stuff like COVID.

  12. @Fred, have nothing against the 2nd amendment, especially to protect against people like you. My point was it has nothing to do with vaccines.

  13. Be part of the solution people. Get your freakin shots & quit acting like your freedom to acquire and pass along this disease is more important than those of us actually trying to protect you and your family.

  14. Vijay, you do know that a lot of the people that are fully vaccinated are the ones that are coming down with the virus don’t you…

  15. Since this is turning into a political blog, I’ll chime me. Ever since I stopped watching Fox News as all the creditable reporters have left, I realized how many ridiculous and inconsistent message they are passing. The same people want to check voter ID are the ones that are resisting vaccine passport. Vaccine don’t work? Well do they think voter ID laws are going to change the.results in their favor?

  16. @Barry,

    When did it become your responsibility to protect me and my family? Or mine to protect you? How about you do you and what’s best for YOU, and stop worrying about everyone else and leave the rest of us alone?

  17. Ryan, we don’t have to tell you what to do.

    We’ll just deny you access to planes, trains, office buildings, theaters, restaurants and grocery stores.

    Fuck you.

  18. I think we’ve forgotten that living in a truly free society comes with inherent risks. That’s the trade-off.

    Or you could delegate your safety and life completely to the government like China. Seems to be the popular opinion these days.

  19. Ryan,

    Well said! I applaud you!
    In other words, what is the saying… “to each his own”? people should not be made to HAVE to do anything! we are NOT a communist country!

  20. Karen above. What medical schilling did u graduate from? Trump Unuversity. What a stupid assume remark. And Barry above is totally evil and admits he only cares ab out himself. And Gary, why not go further to protect individual rights and remove mandates for small pox, polio and mumps? Then Trumpsters will like u even more

  21. @Allen,

    Really dude? There is no mandate on smallpox and unless you deploy to specific areas in the military, civilians haven’t been taking that vaccine since the early 70’s. Polio and Mumps vaccines are recommended by WHO for children in 3rd world shitholes, and is included in vaccine programs for some countries around the world, but certainly are not “mandated’ either.

    Why not take about 30 seconds to research before you post your leftist feigned outrage and look like an even bigger moron?

  22. I am tired of hearing about protecting others when there is growing evidence that the vaccine does not do this. Vaccinated people can contract the virus and spread the virus. (And presumably since they host it mutations can still occur in their bodies.) They are more likely to be asymptomatic while spreading it. Maybe their vaccine lowers the chance of a serious case and that is fine for them if they made that choice. But their vaccine is not necessarily protecting me. This is a leaky vaccine, people need to stop thinking of it as similar to ones like MMR which give lifelong immunity with no spread. It’s not the same.

    I had covid. I am not high risk so my odds of hospitalization were somewhere around 5%. I had only a very severe sore throat for a few days, nothing else. I now have natural immunity. I see no reason to take a vaccine which can only be called experimental at this point. If I were in a high risk group my personal risk assessment would be different. I’d quite possibly already be vaccinated in that case.

  23. Hey, as far as airline travel goes in the U.S. we’ve already got a dystopian two-tiered society. You can (maybe) join pre-Check or you can be treated like crap. Lovely.

  24. “Harvard Medical School professor Martin Kulldorff argues that new research cofirming that natural immunity offers exponentially more protection than vaccines means vaccine passports are both unscientific and discriminatory.”

    You know the plandemic is real when the science of natural immunity is ignored and every road leads to the vaccine. Vax passports are about control. This is exactly how communism works!!!!!! Wake up!!!!!!

  25. “Vijay says:
    September 4, 2021 at 9:35 am
    We need to re-educate the unvaccinated. Isolate them from society, maybe special camps. They are the sources of all the problems in society. If we are to create a perfect society, we must eliminate any sources of disagreement. It may be hard and painful for a little while, but ultimately we will prevail.
    Once vaccinated, we must educate them on why to follow the government. We must take away their ability to thrive in society, relying only on the state. It is for our communal safety, after all. Don’t question us, just trust us.”


  26. I won’t address this to any of the specific and numerous idiotic comments above, except to say this. This country is floundering. Obviously what we are doing is not working. Do you want to live with this thing and its many strains and ups and downs for the next few decades? Then keep moaning about your rights to be unvaccinated, unmasked, uncaring and uneducated. The only way out of this mess for good is through much stronger legislation, mandates, rules, incentives and penalties to push everyone to do the right thing, for the common good and to protect EVERYONE’S rights to thrive, be healthy and life a free and independent life. Get your selfish heads out of your selfish asses and start caring about someone other than yourselves. And since clearly that will never voluntarily happen with around 40% of the country, Grandpa Joe needs to grow a pair and give them no other choice. Let the whining and angry mob demonstrations and lawsuits begin. Have at it. Dealing with the backlash of the far right whackos is far better than what we have now. It’s a national and international health crisis. That supersedes all your perceived rights. The unvaccinated are imposing their lack of morals on everyone’s bodies and lives. I support the arguments in this piece 100%. And I support the fact that you are taking a position and discussing issues that affect all travelers more profoundly than just regurgitating the same miles and points tips as other blogs.

  27. First of all, I’m thinking Vijay was being sarcastic. Certainly hope so.
    Secondly, the various scientists have been extraordinarily inconsistent and have lost all credibility, IMO. Third, I had Covid last November, spent the better part of a week in a hospital but like the other 99.8% victims I survived. So now I have natural immunity but I’m being lumped into the group getting bullied into getting the vax despite, not needing it, just to get a vaccine passport. And last but certainly not least, I am a brittle diabetic and the introduction of any new medicine brings with it great risk for complications. Enough is enough, get off my back and stop restricting me. I really could go on but……….

  28. Gary-

    I’ve now had 3 Moderna shots. Do you have a link to how I can connect to the internet? Is there any GB limit?

  29. Hate to individually call out commenters but the ignorance and misinformation just needs to be countered. @Peter Mac: I know certain people love to repeat the 99.8 or something% figure but in fact not only is it not true (estimates are as low as 97%) but it doesn’t matter one bit what that exact percentage is if you are the widow or child or brother or sister or friend or colleague of some of the nearly 700,000 Americans that have died so far, many unnecessarily. So I never understood that argument. What is an acceptable mortality rate? If it was, say 7 million instead of 700,000, then would it be okay to take some serious preventive action, even if it is inconvenient? So obviously a certain amount of death is acceptable as long as people don’t have to be told to do something some may not feel comfortable doing.

    Also, I’ve never understood the willingness, even pride, of the people who get infected when it likely could have been prevented, especially for someone like you with secondary conditions. You do realize that many COVID survivors have lung scarring and can expect longlasting damage and otrher as-yet-unknown problems??? Knowing what you know now (that you ended up in the hospital in serious condition but managed to survive), would you really say you prefer to have had a disease you could most likely avoided, as long as you didn’t get forced to take some simple precautions- or to follow terrible “restrictions” as you say? You only get one body and one set of parts so you really have no regrets you put yours through that? You really wouldn’t have rather gotten a vaccine than a disease with lifelong effects? Okay your body, your decision but I think this country needs to protect you from yourself (the ignorance is very costly to the medical system and dangerous to others) and your fellow citizens from people like you.

  30. The number of people who are citing extremely misleading (and sometimes fraudulent) data in an effort to be the sheep following their Trump master is truly sad at this point.

    THERE IS NO LEGITIMATE DATA WHICH SUPPORTS THE IDEA THAT VACCINATED PEOPLE ARE DRIVING THE SPREAD OF COVID. NONE. A very small % of vaccinated individuals are getting covid and a small % of those can spread it. A much higher % of unvaccinated individuals are getting and spreading covid. The vaccines continue to work very very well. Anybody saying otherwise is either lying or misunderstanding the data.

  31. @Kevin

    You obviously didn’t do 30 seconds of research, otherwise you would have learned that even Alabama requires polio vaccines for every student.

  32. You confused and got the MAGA imbeciles lost the first time you mentioned “Vaccine”.

  33. You too seems sheep of govt and act like puppet dying to just go back to normal. Well all the best fo your efforts, bcoz certificate doesn’t necessarily mean a person has actually taken a jab. Thank God society is going to be divisive now ans so is the economy, enjoy the cult ride

  34. @ Vijay. You are correct sir. With just the slightest amount of critical thinking one would realize that your post was sarcasm. Unfortunately, critical thinking is not in many of the commenters wheelhouse.
    @ Autolycus. You are demonstrating that you are not renown for your cunning. I suggest you do some research on what’s happening in Israel regarding the vaccinated. They were early to vaccinate and have a very high vaccination rate.
    @ landor. Thank you . . . and it is temporary safety, very temporary. I’d like to add, “Freedom (Liberty) is not Free.”

  35. Sorry, I left one out. @ Fred, you are not only a vulgar boy, but delusional as well. “We’ll just deny you access to . . . ” Fred, did someone die and make you King?
    BTW, run your comments by your mother before posting. Perhaps she can give you some sorely needed guidance. It will not make you perfect but it will make you a better person.

  36. Personally I can see mandatory vaccines coming. SCOTUS already decided this with Jacobson v. Massachusetts. In 1905, the United States Supreme Court case in which the Court upheld the authority of states to enforce compulsory vaccination laws. The Court’s decision articulated the view that individual liberty is not absolute and is subject to the police power of the state.

    People make these absurd arguments, but this case was decided over 100 years ago. Even if brought before the current SCOTUS, a decision would take about a year. And no, a shadow docket decision would not happen. Besides, I really doubt that SCOTUS would take the case at all. People can opine all they want here, fact is vaccines save lives. There is no debate in that, AT ALL!

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