By: Gabriella Megan Hakopian
“”The happy Union of these States is a wonder; their Constitution a miracle;
their example the hope of Liberty throughout the world.” James Madison”
We’ve all heard the words uttered by many across the country, “I have the constitutional right
to go where I want to and not to wear a mask,’ not only is the claim incorrect, it is dangerous to
incorrectly decipher our most sacred text: The Constitution of the United States of America.
As Robert Kennedy once regarded, “”The glory of justice and the majesty of law are created not
just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers –
but by the men and women who constitute our society – who are the protectors of the law as they
are themselves protected by the law.” – Robert F. Kennedy.” Let’s dive into why wearing a mask
is not against your constitutional rights. Some Americans have gone viral on the internet
shouting, “I am an American … I have rights.” But groups such as Health Freedom Idaho have
said, ““I’m afraid where this country is headed if we just all roll over and abide by control that
goes against our constitutional rights.” So what do constitutional law scholars say about these
objections? One scholar says, “these claims are nonsense.” It is unclear how these objections
regarding violations of constitutional rights have emerged regarding government orders stating
that masks must be worn in public places and places of business but the objections fall into two
categories.
The first category is that wearing a mask violates First Amendment rights, and a person’s right
to right of speech, assembly and freedom of association. A lawsuit filed in Palm Beach County in
Florida argued that, “mask mandates “interfere with … personal liberty and constitutional
rights,” such as freedom of speech, right to privacy, due process, and the “constitutionally
protected right to enjoy and defend life and liberty.” The lawsuit asked the court to issue a
permanent injunction against the county’s mask mandate.” Shortly after, on July 27th the Court
declined to issue an injunction according to an article that says, “against the mask mandate.
Citing Jacobsen v. Massachusetts, the Court found that “no constitutional right is infringed by the
Mask Ordinance’s mandate … and that the requirement to swear such a covering has a clear
rational basis based on the protection of public health.” More to the point, the Court continued,
“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.” Furthermore, when a reporter questioned why
President Donald Trump did not wear a mask at a rally in Tulsa, Vice President Mike Pence
responded by saying, “I want to remind you again freedom of speech and the right to peaceably
assemble is in the Constitution of the U.S. Even in a health crisis, the American people don’t
forfeit our constitutional rights.”
What the First Amendment does – and doesn’t do
As many constitutional scholars state, the First Amendment protects freedom of speech, press,
petition, religion and assembly. Now, there are two reasons why masks do not violate First
Amendment rights. According to scholars first, “a mask doesn’t keep you from expressing
yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges
call these “time, place, and manner” restrictions. If they do not discriminate on the basis of the
content of the speech, such restrictions do not violate the First Amendment. An example of a
valid time, place and manner restriction would be a law that limits political campaigning within a
certain distance of a voting booth.” Secondly, “All constitutional rights are subject to the
government’s authority to protect the health, safety and welfare of the community. This authority
is called the “police power.” The Supreme Court has long held that protecting public health is
sufficient reason to institute measures that might otherwise violate the First Amendment or other
provisions in the Bill of Rights. In 1944, in the case of Prince v. Massachusetts, for example, the
Supreme Court upheld a law that prohibited parents from using their children to distribute
religious pamphlets on public streets.”
The argument over rights to liberty
Some anti-maskers have also argued that wearing a mask violates their constitutional right to
liberty, most highly recognized as, “my body, my choice.” In the 1905 case, Jacobsen v.
Massachusetts, this argument is contested by saying, “mask mandates don’t violate any
constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court
upheld a smallpox vaccination requirement in Cambridge, Massachusetts. The court said that the
vaccination requirement did not violate Jacobsen’s right to liberty or “the inherent right of every
freeman to care for his own body and health in such way as to him seems best. As the court
wrote, “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.”
In a 1995 New York case, a state court held that an individual with active tuberculosis could be
forcibly detained in a hospital for appropriate medical treatment. Even if you assume that mask
mandates infringe upon what the Supreme Court calls “fundamental rights,” or rights that the
court has called the “very essence of a scheme of ordered liberty,” it has consistently ruled states
can act if the restrictions advance a compelling state interest and do so in the least restrictive
manner.”
The Constitution makes time, place, and manner very clear so unfortunately, in the words of
many, “a global pandemic in which a serious and deadly communicable disease can be
transmitted by asymptomatic carriers upsets that background and justifies a wide range of
reasonable restrictions on our liberties.”