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The Anti-Vaxx Herp Derp

August 5, 2021
The Anti-Vaxx Herp Derp

As it’s become increasingly clear that the obstacle to ending the pandemic is now people flat-out refusing to get vaccinated, I’ve struggled with how to characterize and address the arguments these anti-vaxxers are making. But on Friday, I had an epiphany when I read this quote from Larry Cosme, president of the Federal Law Enforcement Officers Association, who was pushing back against Joe Biden’s plan to require federal employees to be either vaccinated or have a current negative COVID test.

“Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it.”

“Aha!,” I said to myself, “Herp derp!”

Herp derp originated, as do so many important philosophical concepts, on South Park. It’s now become an internet meme for something that is just complete nonsense. Larry Cosme’s statement is a textbook example.

For one thing, anyone over the age of 6 who thinks about it for five seconds can tell you that what Cosme said is obviously false. Every school district in every state in America requires children to be vaccinated to attend public schools. Most states offer exemptions in some cases, though some states, including California, have drastically restricted those exemptions. But there is no question that states and school districts have the legal authority to demand that school children be vaccinated. So no, mandatory vaccinations are not a “civil rights violation.” They’re line three on the list of “things to do” that your parents had stuck on the door of the fridge.

For another thing, we’ve been down this road before. The Supreme Court addressed the question of whether mandatory vaccinations violated the Constitution back in 1905 and the most shocking thing about that opinion is how little things have changed.

In Jacobson v. Massachusetts, the Court decided that mandatory vaccinations were perfectly constitutional and an important tool of public health. Henning Jacobson, an early anti-vaxxer, refused to be vaccinated for smallpox. Just like anti-vaxxers do today about the COVID vaccine, he argued that the smallpox vaccine didn’t work.

As a factual matter, this claim has not aged well—but it was considered ridiculous even at the time. While Jacobson offered evidence of “the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox . . . this court knows, that an opposite theory accords with the common belief and is maintained by high medical authority.”

In other words: We all know vaccines work and the medical profession as a whole accepts that vaccines work, crackpot theories to the contrary not withstanding. Tucker Carlson, take note.

Jacobson also discusses the claim that choosing whether or not to get vaccinated is a matter of personal choice that’s protected by the Constitution. “We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons . . . should have the power thus to dominate the majority when supported in their action by the authority of the State.” If it did, the court reasoned, “the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual.” To misquote a phrase, “Your right to spread your virus ends where my nose begins.”

So mandatory vaccination laws are perfectly constitutional—and have been for 116 years. But maybe it won’t come to that. Trump himself has endorsed the idea of getting vaccinated and Mitch McConnell has recently gone all-in on promoting vaccination and is spending his unused campaign funds to buy ads encouraging people to get their shots. Even Fox is slowly coming around to the idea that people need to be vaccinated. Let’s hope these efforts are successful.

Because we normals should not allow 28 percent of the population to keep us in a permanent COVID twilight when real freedom is just within reach.

I’m willing to put up with a lot during a genuine national crisis, but I’m not willing to spend six hours on an airplane wearing a mask because some Trump supporter wants to “own the libs” by not getting vaccinated. You think the anti-vaxxers are riled up about new mask mandates? Just wait until the rest of us find out that schools won’t be able to open in September because of a surging delta-variant wave caused by anti-vaxxers who “don’t believe” in getting vaccinated against COVID-19.

Personally, I’m not currently in favor of actual vaccine mandates. But I am vehemently opposed to anti-vaccine mandates. Let’s let the free market sort this problem out. If an airline or a restaurant or an employer wants to protect the health of their customers or employees by requiring proof of vaccination or a recent negative COVID test, that ought to be between the business, its customers and its employees. When the government steps in and outlaws this sort of thing, well, that’s the sort of freedom-destroying nanny statism that True Conservatives are supposed to be against.

Normal life is about six weeks away and it will be perpetually six weeks away until we find a way to deal with the anti-vaxxers. By all means, continue the outreach. Persuade them to get their shots. But I’m not interested in the “reasons” anti-vaxxers don’t “believe” in vaccinations.

It’s all herp derp. All I’m interested in is results.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of, the first system designed to deter foreign interference in American social media. He is a member of the Guardrails of Democracy Project.