Constitution Day 2020
On December 8, 2004, public law 108-447 was signed, designating every September 17 as Constitution Day. Since then, Constitution Day has been dedicated to the study and awareness of the document that guides our nation. All schools receiving federal funds and all federal agencies are required to provide material and educate students about the Constitution.
To honor Constitution Day this year, Dr. John Ackerman has written this timely essay that explores the constitutionality of mask mandates in America.
Happy Constitution Day, America!
The emergence and rapid global spread of the COVID-19 virus has created numerous problems for governments around the world, and the government of the United States has not been spared. One of the more interesting and controversial challenges to governing created by the pandemic surround protective face masks. Legal and constitutional problems have arisen from local and state governments mandating the use of masks as a protection against the virus. These types of issues concerning civil liberties are not new and for the most part are straightforward. A discussion of two of the more specific constitutional issues will illuminate the versatility of constitutional law and the robust yet finite powers of state, local, and federal governments.
Soon after the COVID-19 virus began spreading throughout the U.S., public health professionals and politicians encouraged the use of protective masks to help slow the spread of the virus. Initially, there was controversy over the effectiveness of masks for the general public, but these disagreements quickly faded, and the wearing of masks became a prominent recommendation for slowing the spread of the virus (CDC, 2020). However, some Americans continue to refuse to wear masks for a variety of reasons. These reasons include claims that the pandemic is nonexistent and therefore masks are unnecessary, that masks exacerbate an existing medical condition, masks hinder exercise/work, masks do not work, information about the efficacy of masks is inconsistent, and masks create a false sense of security (Gillespie, 2020). Many of these beliefs are a function of what an individual’s “in-group” believes. In political science and social psychology, “in-group members are those who share a specific social quality (e.g., your political party), and out-group members are those who do not share that social quality” (Teeny, 2020, Para. 11).
Consequently, “when it comes to mask-wearing, one reason that opposers are resistant to wearing them is that these people are not considering the arguments in support of wearing the masks – they are going along with what their in-group members are doing. Of course, mask wearers are doing the same – they are not considering the arguments put forth by anti-mask wearers and are instead simply following their in-group's beliefs” (Teeny, 2020, Para. 16-17).
Nevertheless, directly impacting group concerns are societal/governmental concerns over the safety and health of all Americans. From these concerns, arguments over wearing protective masks often collated around personal liberty issues versus public health concerns. In many cases, people did not want to wear masks because they saw them as a violation of their constitutional rights (Aguilar, 2020). This segment of the debate quickly became political but the constitutionality of a government entity (local, state, or federal) mandating that citizens wear masks when in contact with other citizens as a health precaution was always based on settled legal and constitutional grounds.
Anti-maskers generally argue the unconstitutionality of mask mandates on two grounds. First, some claim that masks violate their First Amendment rights to free speech and association. Second, some also claim that masks violate their constitutional rights to liberty and the ability to make their own decisions concerning their health and welfare. Lawsuits arguing both claims have been initiated (Engelhardt, 2020) and the legal reaction to these claims has been swift, detailed, and clear.
The argument that mask mandates during a national health crisis violate First Amendment rights fails to pass scrutiny. A mask does not preclude one from expressing themself and therefore does not interfere with free speech. Also, First Amendment rights are not limitless. These rights can be bounded by the needs for “health, safety, and welfare of the community” (Finn, 2020, Para. 16). For example, many of the judgements against the anti-maskers are based on the 1905 case Jacobsen v. Massachusetts and in a very recent judgement determined “no constitutional right is infringed by the Mask Ordinance’s mandate … and that the requirement to wear such a covering has a clear rational basis based on the protection of public health.”
Explicitly, the judge concluded, “constitutional rights and the ideals of limited government do not … allow (citizens) to wholly shirk their social obligation to their fellow Americans or to society as a whole…. After all, we do not have a constitutional right to infect others” (Engelhardt, 2020, p. 12).
In addition, some argue that mandating masks violates our rights to liberty, personal autonomy, and the concept of “my body, my choice” (Finn, 2020, Para. 18). Again, the 1905 case of Jacobsen v. Massachusetts upheld that the requirement for smallpox vaccinations did not violate any personal liberties and the need for the safety of organized society outweighed the rights to some personal liberties (Finn, 2020, Para. 20).
The bottom line to many of these cases is that states can take actions like this in order to advance a compelling state interest (Finn, 2020, Para. 16-22). All state governments are “granted the power to establish and enforce laws protecting the welfare, safety, and health of the public” (LII, 2020, Para. 1). More importantly, all our constitutional rights are conditional in that the “exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare” (Finn, 2020, Para. 24). The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC of state/local public health authorities about steps employers should take regarding COVID-19.
The essence of these challenges to our democracy and health are profound. “The values of liberal democracy have always been about individual rights and duties. Yes, the Constitution protects individual rights and limited government, but the core pillar of our government is the need to defend the lives of citizens against enemies. This includes COVID-19” (Rosenblatt, 2020, Para. 5).
In these difficult times, it is rational, moral and necessary to give up some liberty for the collective, greater good, as our Constitution supports. These conditional sacrifices for the greater good are acknowledged and affirmed by a famous contributor to our liberal democracy, Adam Smith. Smith argued, “He is not a citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens” (Smith, 1761, Chap. 2).
In sum, we should all keep the welfare of our fellow citizens in mind during this prolonged pandemic and wear protective masks, when required, for the greater good of our nation.
Dr. John Ackerman
Associate Professor, Core Faculty
Aguilar, A. (2020, July 9). Wearing masks vs. constitutional rights. Savannah, GA.: WTOC. Retrieved from https://www.wtoc.com/2020/07/09/wearing-masks-vs-constitutional-rights/
Engelhardt, J. (2020). Palm Beach Mask Lawsuit. The Palm Beach Post. Retrieved from https://www.documentcloud.org/documents/6961900-502020CA006920XXXXMB-3.html
Finn, J. E. (2020, July 28). The Constitution doesn’t have a problem with mask mandates. The Conversation. Retrieved from https://theconversation.com/the-constitution-doesnt-have-a-problem-with-mask-mandates-142335
Gillespie, C. (2020, July 1). Why Do Some People Refuse to Wear a Face Mask in Public? Health. Retrieved from https://www.health.com/condition/infectious-diseases/coronavirus/face-mask-refuse-to-wear-one-but-why
Legal Information Institute (LII). (2020). Police Powers. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/police_powers
Rosenblatt, H. (2020, August 20). No, there isn’t a constitutional right to not wear masks. The Washington Post. Retrieved from https://www.washingtonpost.com/outlook/2020/08/20/no-there-isnt-constitutional-right-not-wear-masks/
Smith, Adam (1761). Theory of Moral Sentiments (2 ed.). Strand & Edinburgh: A. Millar; A. Kincaid & J. Bell.
Teeny, J. (2020, August 3). Why Do Some People Still Oppose Facemasks? Psychology Today. Retrieved from https://www.psychologytoday.com/us/blog/difference-opinion/202008/why-do-some-people-still-oppose-facemasks
U.S. Department of Health & Human Services (HHS). Centers for Disease Control and Prevention (CDC). Use of Masks to Help Slow the Spread of COVID-19. Washington, D.C.: HHS. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html