Yes, the Government Can Require Masks During a Pandemic Without it Becoming “TYRANNY”
Welp. The third wave of coronavirus cases is here.
You know what that means: Lockdowns, stay-at-home orders, and mask mandates. You know, all of the things that we should have been taking seriously, all this time.
But this is America. Here, “covidiots” claim that they have a right to not wear a mask.
They also still claim that their government can’t tell them what to do, that masks are for “sheeple,” and that lockdowns are “TYRANNY.” Nothing could be further from the truth. Public health emergencies were one of the very reasons for government, in the first place, and that is why we gave state governments the power to take action.
Here’s how to explain it to these truths to covidiots.
State Governments Can Act in the Interest of Public Health
The U.S. Constitution gives, or enumerates, certain power to the federal government. Under the Tenth Amendment, those powers that are not enumerated to the federal government fall to either the state governments, or to the people.
The power to protect public health, safety, and welfare — known as the police power — is not given to the federal government. Therefore, it falls to either the states or the people.
Say: The Tenth Amendment gives states the power to enact laws that promote the public health, safety, and welfare.
The possibility that public health decisions — which require collective action and potentially even a degree of sacrifice or inconvenience — could fall to private citizens, individually, is so preposterous that the Supreme Court of the United States, in interpreting the Tenth Amendment, has never taken it seriously.
As early as 1905, the Supreme Court recognized that individual liberty could be subject to this police power.
1905!
In that case, Jacobson v. Massachusetts, someone in Massachusetts refused to get vaccinated for smallpox (some things never change), even after Massachusetts passed a law requiring one to slow an ongoing outbreak. He was ticketed and fought the ticket all the way to the Supreme Court, which made him pay it.
The Court made it abundantly clear that states can, and should, prioritize the public good over the rights of an individual person when necessary:
“…the liberty secured by the Constitution… does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. 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. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”
Dozens of cases in the century since Jacobson have followed suit.
Say: The Supreme Court has a long history of allowing state governments to pass public health laws.
No Constitutional Right is Absolute
A state’s police powers do not stop at the lines drawn in the sand by the Constitution’s civil rights, either. The Freedom of Speech, the Freedom of Assembly — they can all be legally infringed by a state’s police power when the need is there to protect the health, safety, and welfare of the populace.
Say: Even if you think your rights are being violated, no right in the Constitution is absolute.
Should a mask mandate or a COVID lockdown begin to infringe on someone’s civil rights, a court would likely look at the measure with strict scrutiny.
Hello, Mr. Giuliani, I’m glad you’ve tuned in at this point.
When a court looks at a government regulation that infringes someone’s rights with strict scrutiny, it asks, “Is this regulation narrowly tailored to further a compelling government interest?”
Say: If a coronavirus measure infringes your rights, it is still constitutional if it is narrowly tailored to a compelling government interest.
You can break that question apart and get two:
- Is there a compelling government interest?
- Is this regulation narrowly tailored to further that interest?
The first one is easy: Stopping or slowing the spread of the coronavirus is a compelling government interest. You’d have to be a COVID denier to argue otherwise. Even if you think that a 1% fatality rate isn’t worth all the hullabaloo, you’d still have to admit that slowing the pandemic is a compelling public interest because you’d still think that over 3 million people stand to die from the virus.
Even if you have still managed to stand by the comparison of the coronavirus to fatal car accidents, you would still think that stopping the virus falls within a state’s police powers because why do you think we have drunk driving, speeding, and seatbelt laws?
Say: Stopping the coronavirus is a compelling government interest.
That leaves the second: Are mask mandates and COVID lockdowns “narrowly tailored” to serve that interest?
Strangely, Jacobson sheds light on this issue, even though it was decided before courts started asking these questions about things being “narrowly tailored” to a government interest that was “compelling.”
An argument that the 19th century anti-vaxxer had made was that the science was still out on vaccines, and that there were plenty of people who doubted they worked. The Court gave the thought the back of its hand:
“The fact that the belief [in the efficacy of vaccines] is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”
Just because they are disputed or there is the chance that history will tell us that these mask mandates and lockdowns did not work does not mean that they are unconstitutional.
Something that would likely not be “narrowly tailored” to controlling the pandemic is a government regulation that seems more likely to be in Trump’s playbook: Singling out Asian-Americans for “treatment.”
Back in 1900, the Board of Health in the burgeoning city of San Francisco — population 350,000 — was terrified of the bubonic plague which, they seemed to think, was carried by people from China. Even though there were no cases in the city, yet, the Board of Health decided to inoculate everyone of Asian descent against the plague. The vaccine, it being 1900, was risky, at best. Chinese residents who did not want to get vaccinated with ditch water were not allowed to leave the city.
No one else was required to get the vaccine.
A court stopped the inoculation order after finding that the Board of Health’s decision was based on no evidence, at all.
Mask mandates and stay-at-home orders, like the vaccine in Jacobson, are based on science. Expert epidemiologists recommend them to slow infection rates and viral spread. They might not be perfect, but they are more than guesswork and xenophobia and are designed to slow the coronavirus.
More importantly for the constitutional question, they are designed for the sole purpose of combating the coronavirus. They aren’t coming from Big Mask lobbyists. Lockdowns are not an deep state conspiracy to get us to accept increasingly intense levels of servitude until we are no more than slaves (do I really have to say this?). Dr. Fauci is not a mass murderer who knows that wearing masks for long periods of time causes oxygen deprivation and death (have we really sunk so low?).
Say: These regulations are narrowly tailored measures that are meant to protect the public health during a pandemic.
The government not only has the power to enact them; they have the duty to do so.
