On Mask Mandate Bans

 Permitting mask mandates in places where the spread of Covid 19 is high seems like a no brainer. Yet it has become a subject of great controversy, with some Republican governors mandating a ban on mask mandates, overriding the judgments of local government and school officials that requiring mask wearing in indoor spaces is the best way to protect the public health. What’s going on here? One way to think about the current dispute is in terms of two different ideas of freedom, one derived from our Constitution, the other coming from our Culture Wars.

 First, some background. The evidence is clear that masks can both significantly protect the wearer against the virus, depending on the mask, and, even more, can significantly impede the mask wearer’s ability to transmit the virus. Hence the reported case in Springfield, Missouri where two hairstylists infected by Covid but wearing masks did not infect the 139 customers with whom they came in contact. Because those infected with Covid are asymptomatic in the early stages, and sometimes remain asymptomatic, they are able to unwittingly transmit this airborne virus. Wearing a mask provides the best protection, short of getting vaccinated. The prevalence of the highly transmissible Delta variant, and the fact that a large part of the population remains unvaccinated, makes the case for indoor mask mandates stronger. There are no negative health effects from mask wearing, no buildup of carbon dioxide, contrary to some Internet reports. We are all familiar with the hassles of wearing a mask: not being able to see other people’s faces or show ours, having to breathe through the mask, having your glasses fog up, etc. These inconveniences seem trivial compared to the life-and-death stakes of stopping Covid infections.

 But, say the objectors, whatever the benefits of wearing a mask, it can’t justify the coercion of making people wear masks. And because this is the US of A, a debate about freedoms and rights usually comes down to a dispute about constitutional interpretation. Mask mandates are unconstitutional, right?

 Of course not. There is no responsible conception of individual liberty, nor of parental rights, that gives individuals the right to refuse reasonable measures, nor parents the right to refuse measures for their children, to stop the spread of a dangerous, highly contagious virus. The idea of freedom in our Constitution – and its Bill of Rights – is rooted in a sense of human dignity. Accordingly, constitutional rights are always bounded by the principle of doing no harm. The First Amendment protection of speech does not extend to speech that slanders or incites violence. The Fourth Amendment protection against unwarranted search and seizures does not extend to life-threatening emergencies. Even the Second Amendment, the right to bear arms, our most dangerous right, is tempered by a prefatory clause that that places the right in the context of a lawful social order: “A well-regulated Militia, being necessary to the security of a free State …”

 History shows how individual rights and strong public health measures have long coexisted. As Yale legal historian John Fabian Witt chronicles in his recent book American Contagions: Epidemics and the Law from Smallpox to Covid 19, state and local governments have, since colonial times used coercive measures such as quarantines to combat infectious diseases. It is a core power of state and local governments, what the law calls the “police power,” to take the steps necessary to protect public health, including preventing the spread of infections. The U.S. Constitution did nothing to change that reality: the Tenth Amendment left to the states powers not granted to the federal government, and it is widely agreed that includes the power to deal with public health emergencies. As Witt emphasizes, a paramount legal principle of virtually every legal system, including ours, was expressed by Cicero: Salus populi suprema lex esto, the health of the people is the supreme law.

 With the mask mandate ban, the freedom that Ron DeSantis and company have in mind is not the Constitution’s idea of freedom, but that of the Culture Wars, a reckless freedom that doesn’t care much about the harm it causes. Rather than focus on the reality that their policies may lead to more sickness and deaths, they are concerned about symbolism. It’s all about fighting big government, about liberal bias in science, about the logic of the slippery slope, about first-they’ll-make-us-wear-masks-then-they’ll-take-our-guns-away. There is money to be made, there is political power to be gained, in paranoia and rage. There is a shrewd rationality in playing on the irrational – a perverted rationality that turns aside reason and compassion for human suffering in the service of political calculation.

 Individual freedom is only part of the story of democracy. The other part is being able to act together, intelligently, informed by expertise as needed, to do good and great things. Those who framed our Constitution knew this, those who carry on our Culture Wars seem not to, or don’t care. Against the political headwinds of the hysteria mongers who harp on an irresponsible idea of political freedom, our best option is to stay the course, and to do our best to defeat at the polls those who would play politics with peoples’ lives and health.

Robert Katz

Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County. 

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