Masks and Constitutionality

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Danny Karon, your Lovable Lawyer, takes on masks and constitutionality:

“We hear all this talk about mask mandates but rarely addressed, if ever, is why they are okay, why they aren’t unconstitutional.

I want to start off my remarks with a quick quiz. What part of the constitution supports anti-maskers’ position that mask mandates are unconstitutional? A) the first amendment, B) the fourth amendment, or C) mask mandates are not unconstitutional. We all know the answer is C but let’s talk about why.

If you remember when the pandemic started, we had Costco Karen. She staged that Costco sit in claiming “I’m an American and I have constitutional rights.”

Health Freedom Idaho protested the Boise mask mandate and one protestor said “I’m afraid about where this country is headed. We all just roll over and abide by control that goes against our constitutional rights.”

During the Tulsa rally during the campaign, when responding to a reporter who asked why President Trump didn’t appear concerned about the lack of masks or social distancing, Vice President Pence said “I want to remind you that freedom of speech and the right to physically assemble is in the constitution of the US. Even in the middle of a health crisis, Americans don’t have to forfeit their constitutional rights.”

It seems that everyone thinks it’s their constitutional right not to wear masks. Last time I checked, none of these folks were exactly constitutional scholars. So, I wanted to really understand the textual basis, if any, for these folks’ arguments or insistence that’s it is okay not to wear a mask.

I was talking to my daughter about this question. She just graduated from American University in DC with a degree in Political Science and a minor in Media Communications. She’s into this constitutional stuff. We did a lot of looking and put our results together in an article that got published with Columbia Law School.

We learned that it’s okay for states to mandate masks. Why? The first really captivating thing we learned is that back in the 70s, the KKK went to the Florida Supreme Court to fight for their right to wear masks. There was a law back then that said you could not wear masks. The KKK did not like it because they wanted to wear masks during rallies so their bosses, friends, and neighbors couldn’t see who they were. They went to the court and argued that the ban on not being able to wear a mask was unconstitutional and they won. Fast forward fifty years, you’ve got people of the same ideology arguing that the government can’t make us wear a mask. They are arguing this position from the other side saying that the constitution makes it illegal. That’s kind of the opposite of what was argued and won back in the 70s. You can’t have it both ways, especially based on the same text.

The constitution doesn’t speak to mask mandates but what the constitution suggests is that its okay to make citizens wear them. That does not violate the constitution.

When we talk about the arguments, here’s what we hear:

  • “Mask mandates are a violation of a person’s right to choose or self-govern.”
  • “We should have the ability to exercise a God given choice absent government intrusion.”
  • “Who gives the government the authority to order me to cover my face?”

Let’s talk about what the constitution directs. Masks are not unconstitutional for the following reasons:

  • The 10th amendment says that powers not delegated or prohibited by the United States are reserved for the states and it allows the states to pass and enforce necessarily laws. You don’t hear about federal mask mandates, besides the one about federal buildings and monuments that President Biden just announced shortly after he was elected. Let’s say there is no mask mandate on a state level in Ohio and yet there is a federal mandate that covers Ohio. If I’m walking down the street without a mask on, who is going to enforce it? There’s no one who is going to arrest me or cite me. Federal mask mandates aren’t at the heart at this problem. It’s a 10th amendment state level issue.
  • The first amendment protects the freedom of speech, the press, to petition, the ability to assemble, religion, etc. However, masks don’t keep you from expressing yourself. They just change the way you look while you are doing it. Likewise, masks don’t require you to express yourself in a certain way, like requiring you to wear a certain type of mask would. The mask doesn’t affect what you are saying or your message. A similar law is the law that requires you to make your political speech no closer than 100 ft. from a polling place. It’s the same principle.

All the constitutional rights are subject to the government’s police power. The Supreme Court has long held that protecting public health is a sufficient reason to institute measures that might otherwise affront the first amendment, not that this particular requirement does anyways.

The case that is often, if not always, invoked to promote this principle is the Supreme Court’s case from 1905—Jacobson vs. Massachusetts. The Jacobson case is where the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Massachusetts. What the court said was: “there are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” Put another way, you don’t have a constitutional right to get others sick.

Last year, in the South Bay United Pentecostal church versus Newsom Supreme Court case, Chief Justice Roberts said public health orders “should not be subject to second guessing by an unelected federal judiciary that lacks the background, competence, and expertise to assess public health.” Respectfully, who are judges any more than me or any non-medical official to know what’s necessary to keep the public safe? That’s why we have the industrial hygienists, the epidemiologists, and all the doctors involved in the pandemic research and measures that the states are following.

If you think about it, the states have long required citizens to do certain things to protect and promote public safety such as seatbelt laws, motorcycle helmet laws, and no smoking bans. You don’t hear anti-maskers complaining about wearing a seatbelt while they are on their way to a rally. You just hear them complain about having to wear a mask once they get there.

Now, kind of hand in glove with the whole public requirement to wear masks comes the private sector requirements. Can private businesses require folks to wear masks when they walk in? Many states were slow to enact mask mandates and a lot of states are coming off of them now. That leaves businesses to do this themselves. Virtually all retailers require masks when you walk inside, the big box stores especially—Walmart, Costco, Home Depot, CVS, McDonalds, and Starbucks.

I was at a Starbucks just last week and I ordered a hibiscus iced tea. I took a sip with my mask off and I started texting. I forgot to put my mask back on. The barista yelled at me and said “put your mask back on and don’t come back if you’re not going to.” I apologized, put it on, and I left. It can get pretty aggressive.

Consider in the beginning of the pandemic when there weren’t mask mandates in certain states and people would walk into stores without them.

  • In Flint, Michigan, before the Michigan mask mandate was enacted, a customer fatally shot at a Family Dollar Store security guard for denying him entry for not wearing a mask.
  • In Royal Palm Beach, Florida, a man who wasn’t wearing a mask pulled a gun on a masked shopper in a Walmart over a dispute about wearing masks.
  • In a very nice section of Los Angeles, California, before the mask mandate was issued, a Target customer punched an employee and knocked him down. The employee broke his arm.
  • At a Dollar Tree in Holly, Michigan, a customer wiped his nose on an employee’s shirt after she told him that he had to wear a mask.

Retailers were so alarmed by what they were seeing that the Retail Industry Leaders Association sent a letter to the National Governors Association pushing governors to impose statewide mask orders. They needed someone to blame when a customer walks through a store without a mask.

If you think about it, these customers were channeling the resistance through the first amendment but the first amendment doesn’t apply to private businesses. It applies to the government. If you’re completely untethered and baseless on a textual level when making an argument against governmental mask mandates, you’re even further out in left field as it concerns arguing this to retail baristas or greeters.

Just like I talked about seatbelts earlier, those laws have been around forever. Look at retail locations–bars, restaurants, clubs, stores–there are dress codes at these places. No shoes, no shirt, no service. You can’t walk into a store barefoot and expect service but no one is arguing that on a constitutional level. When it comes to masks, it seems to be a different discussion that is fueled by a different agenda.

In short, though subject to varying state laws, unless a private business is enforcing a mask policy in a discriminatory or an unequal way, no claim likely exists. Where it concerns masks and the requirement that everybody wear them, there’s no potential for discrimination or unequal application to begin with.

When you think about what anti-maskers have to say, there is really no textual basis that masks are unconstitutional. Mask mandates aren’t a governmental overreach. They are a reasonable and neutral policy intended to keep us all safe and from getting sick. Anti-maskers should simply put aside the politics that fuel this awful and unnecessary discussion, and understand that the call for mask wearing isn’t a step toward governmental tyranny but rather a constitutionally based step toward preserving humankind.”

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