I will state at the outset that I have a deep affinity for the Bill of Rights. They are perhaps the only real meritorious claim to American Exceptionalism. The founding of a new nation specifically prohibiting the establishment of a religion, while simultaneously promoting the free exercise of one’s religion was a brilliant stroke, as was guaranteeing the freedom of the press and the people to gather peacefully to address the government with grievances. Think about how often people in power, right here in the United States, try to quash these principles enshrined in the very first Amendment to the Constitution and you’ll understand how important they are.
I take some issue with the Second Amendment, a favorite among the populace, mostly because of its wording and the resulting confusion it has wrought. Did they mean that the right of the people to bear arms shall not be infringed upon, in order to establish a well regulated militia, or is it that both a well regulated militia and an armed populace was what they had in mind? I could research the law on it, but that’s not the focus of this post and should be a post of its own.
The Fourth and Fifth don’t get as much attention as they should in my view, but they are crucial to keep us out of prison. You can see the founder’s emphasis on jailing people in the next few Amendments as they focus on a speedy trial by jury, reasonable bail, and the prohibition against cruel and unusual punishment.
The 9th and 10th are quite interesting and I may spend some time researching how the courts have relied upon them over the years. The 9th states basically that listing out specific rights in the Constitution shall not be construed to deny others not specifically mentioned. That’s pretty powerful, leaving the door wide open for all Americans to claim liberty from government interference in all manner of things. The 10th gives individual states protection from the Federal Government by specifying that unless it’s specifically in the Constitution as a Federal power, it’s left to the state or the people individually.
Taken together, the whole point of the Bill of Rights was to protect individual liberty from the government. Proponents among our founders wanted to ensure specifically that liberty was protected rather than entrust the government to respect it as a founding principle captured by the Constitution. As a result, Americans are pretty damn free compared to many people in the world who live under more repressive systems of government.
Clearly our rights are not absolute and our representatives have enacted laws over the entirety of our American experiment which in one way or another, may be seen as an infringement upon liberty. For example, you are free to own a car, but you have to register it with the government, pay taxes or fees to do so, have it insured for liability to others, and even have a state issued license to operate it. There are countless cases of litigation against the government on Constitutional grounds when Americans think they’ve overstepped their Constitutional powers and the courts have to weigh the actions of the government against the Constitution. That brings us to the issue most relevant to the moment; that of the public health.
We have strong evidence that covering your mouth and nose with a simple cloth covering will help stem the tide of the pandemic that has taken the lives of 139,186 Americans as of this date, by lowering the risk of person-to-person transmission. Many people are wearing them voluntarily, but the Federal Government has not mandated them. Not only have they not mandated them, but the message around even suggesting wearing them has been mixed and confusing. More than 20 states have mandated mask wearing in public, and in cases where the state has not, many cities, towns, counties and villages have.
Americans have always fought back against government infringement on their freedom, even when it’s in their best interests. Seat belts were seen as an infringement upon our liberty, as was banning smoking indoors. Face masks are no exception, even as cases of COVID-19 are exploding in states around the country, with hospital beds filling up and death rates rising. Protests can be seen on the streets, in front of State Houses and of course, online. The people protesting have one argument: civil liberty. They claim the right to be mask-free and that government cannot force them to mask up.
I’m not aware of anyone taking up litigation yet against the state or local governments that have mandated masks, although perhaps ironically, the state of GA is suing the city of Atlanta for mandating masks when the state specifically said masks would not be mandated. But there have been lawsuits before against the government in matters of public health, and wouldn’t you know it, some have made it all the way to the Supreme Court.
Jacobson v Massachusetts is a 1905 case that ruled in favor of government restrictions on one’s individual liberty when it came to matter of public health, and has served as precedent in similar cases for over a hundred years. I won’t even need to belabor the point as Justice John Marshall Harlan made the point beautifully:
“In every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
So anti-maskers are not only endangering their health and those of their neighbors, worsening an already horrific public health crisis, but they are wrong on their principle argument for doing so. The CDC has recently said that if 90% of people wore masks when they were around others, we could get this pandemic under control in a matter of weeks. Other experts have stated that if most of the population wore masks, we would see similar effects to herd immunity where the virus can’t spread because of fewer victims to infect. While many states have yet to make the move, major retailers have seen the light and have required masks for all customers. Walmart, Target, Lowe’s, Home Depot, Publix, Walgreens, CVS and others have joined the public health fight and we should applaud them, whatever their motivations might be.
Our freedoms are important to us and they should be. But my freedom ends when it causes harm to you and vice versa. Catching and spreading COVID-19 is a shitty hill to die on for your civil liberty stance. You’re wrong, and you’re endangering yourself and others. Put on a mask.
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