Wednesday, December 2, 2020
Kelly Weller Staff Reporter (2020 – 2021)
In 2020, amidst a global pandemic, relevant constitutional questions have begun to pop up everywhere. Are your rights infringed upon when you are forced to wear a mask? Do you have the right to decline wearing a mask in a retail establishment? Does a company policy outweigh your rights as a citizen? How do you reconcile a belief in the rights and liberties for every citizen with the rights of any level of government to force action (or inaction) upon you?
These are all excellent questions, and in most of them, no matter where you sit in the political arena, it is easy to understand all viewpoints. If you find yourself doubting the words of our leaders, the media, or both, you are in luck. Ironically enough, the best source for any questions you may have about your Constitutional rights happens to be public record. Though the United States Constitution and the Federalist Papers¹ provide us with the information we need to answer these looming questions, it is the Supreme Court of the United States that has filled in the gaps by interpreting the laws applicable to these very questions at hand.
Countless examples exist, both historical and current, when we are asked to give up some personal or civil liberties protected by the Constitution. We pay taxes, we wear seatbelts, we are prohibited from smoking on airplanes, and during Vietnam and other wars of the last century, millions of men were lawfully mandated to report to duty and risk their lives for the good of the country. Some might argue that these instances are not accurate comparisons to the COVID-19 pandemic as it relates to our rights, but the historic smallpox epidemic of the last century might prove otherwise.
In 1905, the smallpox epidemic reached America, as had a vaccine, due to the efforts of an English scientist.² Massachusetts enacted its police powers during the epidemic and mandated a vaccine for all adults. It was not an order to stay at home, nor an order to wear a mask, but rather an order to take a shot in the arm. From these facts, the Supreme Court heard, and Justice Harlan delivered, the opinion on what became the seminal case in this area.³
The Court ruled that the state was within its rights to mandate this vaccine in the middle of this epidemic in order to protect the public health and safety of its citizens.⁴ Where the most compelling part of this story comes in is in the Why and the How. How did the Court reconcile this question of personal liberties versus public health? The answer was actually written quite eloquently: “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”⁵
Justice Harlan went on to impart that, to live in a civilized society, every person must be subject to some limitations of their rights for the common good. There is no safety in society without these limitations.⁶ Each person’s rights are subject to reasonable conditions as set forth by the governing authority when deemed necessary for the “safety, health, peace, good order, and morals of the community.” ⁷
In a public health crisis, the vested authority to decide the conditions and actions necessary to protect the public health of its citizens lies with the state and the elected officials representing the affected areas. The reason behind this distinction is based on the assumption that the state and its elected officials are most fit to determine the best course for its citizens. In fact, Harlan wrote that giving this authority to the state was not an unreasonable or even an unusual requirement.⁸
And then these words jump off the page:
“Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.”⁹
I find that the answer to each question we are asking ourselves right now is found in those few sentences, written over 100 years ago.
Do cases exist in which the government crosses the line such that violated liberties must be restored? Yes. In fact, the Constitution and the Court unequivocally state that this power is not without limits.¹⁰ The laws must be neutral in time, place, and manner, as well as generally applicable. The law must not target specific groups or content nor go beyond the necessity of the case at hand. Additionally, these powers are only enforceable for a limited duration (e.g., during a pandemic).11
So, are your Constitutional rights violated when you are forced to wear a mask? Likely not. But if you do not want to take my word for it, go to the source.
Sources ¹ The Federalist Papers shed light into the ever-elusive intent of the Framers but are not binding law. ² Stefan Riedel, MD, PhD, Edward Jenner and the History of Smallpox and Vaccination, NCBI (Jan. 18, 2005), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1200696. ³ Jacobson v. Commw. of Mass. 197 U.S. 11 (1905). ⁴ Id. ⁵ Jacobson v. Commw. of Mass. 197 U.S. 11, 26 (1905). ⁶ Jacobson v. Commw. of Mass. 197 U.S. 11 (1905). ⁷ Crowley v. Christensen, 137 U. S. 86, 89 (1890); Jacobson v. Commw. of Mass.197 U.S. 11, 26 (1905). ⁸ Jacobson v. Commw. of Mass. 197 U.S. 11, 27 (1905). ⁹ Jacobson v. Commw. of Mass. 197 U.S. 11, 26–27 (1905). ¹⁰ Megan Gibson, Competing Concerns: Can Religious Exemptions to Mandatory Childhood Vaccinations and Public Health Successfully Coexist?, 54 U. Louisville L. Rev. 527 (2016).