We are hearing this thought “We are in this together” a great deal this year. We are learning, perhaps the hard way, that we depend on each other for a lot of things, even daily life itself. I wear a mask everywhere I go and it is not political it is gospel… “Love your brother as yourself.” I do not want to be responsible for the ill health or death of another person. I have yet to eat in a restaurant… we have delivery. I have yet to get my hair cut because I am just not safe… with all that is wrong with me I could stub my toe and end up in the ICU on a ventilator. I would rather not temp fate.
It seems to me that we all need to do our part to become part of the solution rather than part of the problem. I agree that there are many reasons why our Covid-19 positives, hospitalizations and deaths are greater than any other country in the world… we think we are entitled to individual rights which trumps everything else. As we read the Constitution and the Bill of Rights we find that there are limits to those individual rights we so proudly claim: We have those rights as long as they are for the common good. I have included limitations to the 1st Amendment by The Conservation.
- 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 right to liberty
- Some anti-maskers object that masks violate the right to liberty. The right to liberty, including the right to make choices about one’s health and body, is essentially a constitutional principle of individual autonomy, neatly summarized as “My body, my choice.”
- The 1905 case of Jacobsen v. Massachusetts shows why 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.
Rights are conditional
- As the Jacobsen ruling and the doctrine of time, place and manner make clear, the protection of all constitutional liberties rides upon certain necessary – but rarely examined – assumptions about communal and public life.
- One is that constitutional rights – whether to liberty, speech, assembly, freedom of movement or autonomy – are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare. This is simply another version of the police power doctrine.
- Unfortunately, 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. Believing otherwise makes the Constitution a suicide pact – and not just metaphorically.
The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.
I hope this helps all of us to see that we are all part of the common good and we either help or hinder that good by what we do. Please consider these words in the spirit of healing in which they are intended.
Grace and Peace
Steve
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The Journey 