Is mandating the wearing of face masks unconstitutional?
In the face of that devastating pandemic, the judicial branch seemed to adopt a non-justiciable, political question-type approach to local health measures in an emergency. Typical is the Supreme Court of Arizona’s pronouncement, “Necessity is the law of time and place, and the emergency calls into life the necessity … to exercise the power to protect the public health.” In 1905, the U.S. Supreme Court had called for just such deference in Jacobson v. Massachusetts. In the midst of a small-pox outbreak, local authorities could mandate vaccination on penalty of a fine for refusal: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Constitutional doctrine changed profoundly over the ensuing century, not only with respect to due process and equal protection but also individual and associational rights under the First Amendment. Yet Jacobson has continued to be the seminal decision on public health authority in an emergency, against which modern civil rights and liberties are balanced.
This is why Chief Justice John Roberts’s invocation of Jacobson in a recent religious liberty case is a significant signal. In South Bay United Pentecostal Church v. Newsom, the Chief Justice affirmed the central position of Jacobson v. Massachusetts:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.
The 5-4 decision generated a dissent by Justice Kavanaugh, joined by Justices Thomas and Gorsuch. Still, as the U.S. Supreme Court’s first foray into COVID-19 control efforts by state and local governments, Chief Justice Roberts clearly intended to provide broad guidance to lower courts. Jacobson v. Massachusetts counsels judges to afford wide latitude to the judgment of health experts, so long as such measures are neutral, generally applicable, and have a medical necessity a government can justify. Thus while courts must be deferential to the need to protect public health, courts must also be vigilant against abuses of public health powers. To do that they must ask what is reasonable, look at the public health evidence, and be attuned to the pre-textual or abuse of power.
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Feel free to reply to any comment by clicking the "Reply" button.I predict an influx of plague rats and bush lawyers in this post...
MrBeelzeebubbles
Level 7
Aug 10, 2020
2
law can happen? 
It's easy to forgot that you wear a mask to protect others, not yourself. Well, I guess anyone can be selfish, but to be selfless takes an effort... I have 2 autoimmune disorders, making me high risk. I appreciate it anytime someone wears a mask.
NakedTruthRebel
Level 4
Aug 7, 2020
1
This is a well written piece, however, you did not answer your question in a clear and unambiguous answer: Is mandating the wearing of face masks unconstitutional?
I argue that "No, it is not." It appears that the Constitution does not directly address the issue of the health of the citizens of the USA. Yet, if our nation that can "insure domestic Tranquility" we must be physically healthy. Science has shown that wearing a mask, washing of hands and remaining 6 foot apart does reduce the chances of contracting COVID-19. If the federal and state governments follow the scientific evidence, then masks would be required in all states and territories.
The NIH recommends any type of face covering that would cover one's nose and mouth, stating that wearing the mask is better than nothing. I have two cloth masks, a number of "flimsy" non-surgical masks and a N-95. I use the cloth masks when I can and feel perfectly safe that I will not expose the fellow citizens to the novel coronavirus if I were infected. (I had the COVID-19 test last week and was "negative." )
SageDave
Level 7
Aug 6, 2020
0
Actually I thought I did by citing Jacobson v Massachusrtts; 1905
It does not violate the Constitution. According to the First Amendment, freedom of speech and assembly is guaranteed and protected. But there are exceptions. Any action that directly threatens violence upon a group or an individual is not protected.
As translated by SCOTUS, to refuse to follow the dictum of local, state, or health mandates that are meant to eliminate a health crisis is tantamount to an act of violence. The individual does not have a First Amendment right to ignore the mandate. The threat of increased transmission and contraction is considered an act of violence to the public. In this case the safety and welfare of the community (local, state, or federal) is deemed more important than the individuals displeasure.
This is a country of laws (that is until trump came to office). The job of SCOTUS is to interpret the law. So the opinion of SCOTUS is the law of the land, whether we like it or not (there are a lot of rulings I do not agree with because they were decided on political grounds and not unbiased legal grounds - this particular finding was not political, but strictly legally based).
How many people will die whilst it is talked about?
Mcflewster
Level 8
Aug 6, 2020
3
A lot of people will die. Very few of them will die from covid.
I’m 3 months away from being a pediatrician. Anyone that truly believes that a flimsy face mask will save them from a virus needs more education. Total nonsense.
CourtJester
Level 7
Aug 6, 2020
1
May not save them in close up prolonged exposure from a asymptomatic individual. But in a short exposure situation it might improve their probabilities of not contracting. Irresponsible to generalize so blatantly. Especially given the politicization of mask wearing.
@t1nick masks are a 0% politicization.
Sorry, I believe Dr. Fauci not you. He has >40 years as the country's leading epidemiologist and you are just a novice.
You're from Alabama. That alone leaves me both skeptical and questioning your credibility. Sorry, but I have trouble respecting the political and intellectual acumen coming out of Alabama the last five years. Your comments only serve to reinforce my opinion.
@t1nick I’m actually “from” Pearl Beach, Australia. If you think a virus is affected by masks, or only by those over six or seven years old wearing masks, or that the virus only affects bars and clubs after 11pm, or that a virus can’t make it around plexiglass; you are we tall did.
A virus can travel in the air for miles. In the winter; many many miles. All you have to do is touch where it lands and wipe your ass. You got it.
If you can smell a fart through your mask; it won’t stop a virus.
Good luck.
[medpagetoday.com]
I think I'll follow the advice of those more experienced than you.
@t1nick I wonder why doctors and cancer patients wear masks!
So, you attend preemies without a mask? Or, why not?
That's because trump refused to exert the DPA early on and n95 were in short supply and had to go to essential frontline workers. Couple that with the Constitutional crying assholes in the country and that was the only substitute that he could talk the American public into wearing. Couple that with the fact that trump took a non-mask stand, which only complicated matters.
It was a compromise from what Fauci and the Task force doctors and scientists really wanted. It was a inferior compromise but the scientists figured that some protection was better than none. The cloth masks are not an end all be all, but in a brief, socially distanced situation they may serve to lessen the impact. The mask as the Task Force says isn't necessarily for the person wearing, but the others that he/she encounter. There are ample demonstrations online that show the that the distance that the droplet spray travels is mitigated significantly by the mask.
Nothing is perfect but if asshole conservatives would quit whining and just cooperates for a couple of weeks, the collective action could go along way to mitigating the spread whether you believe it or not. American's can e such assholes sometimes. If we would just comply is this instance, perhaps someone may not have to die, that undoubtedly will. There are a number of aussies on this site that ar complaining about the lack of mask mitigation back in Australia. As a doctor to be, I would think that you would encourage anything as simple as this that might save one life as opposed to discouraging over the public airwaves. "Do No Harm First", and no telling everybody that they do not work at all is not an equitable attending to the Hippocratic Oath.
@t1nick What’s your highest level of education? Did you know that N95 masks don’t repel much of a virus? That would take a sealed face mask with a sealed and independent oxygen supply. And if you want to get political about it; check out what the Democrats did when Your President first restricted travel from China because of the virus. I’ve also actually been to China before. 95% of them wear masks on a regular basis. They still spread it to millions, and millions, and millions, and millions, and......
It’s a virus. Do some learning and such.
PhD. Science. So sad. You haven't even begun your career and you're already violating your hippocratic oath. Might want to rethink career choice.
@Duchess_Nyx you people amaze us.
Wearing a face mask and social distancing during the COVID-19 pandemic are a public health issue.
Natural selection. Let selfish, anti-mask idiots die.
LiterateHiker
Level 9
Aug 5, 2020
2
Unfortunately it doesn't work that way unless you are talking about N95 masks. Most of the clothe masks can prevent large droplets entering your respiratory airway but not the tiny virus particles or smaller droplets. Viral load is an important factor in how sick you get, so preventing large droplets from getting into you is great. Masks don't eliminate the chance of catching the virus however. If you are sick, knowingly or unknowingly, wearing a mask greatly reduces the amount of virus particles you disperse. So, wearing a mask is first a public health service and second a service to yourself. This is my understanding
N9 shirt, no shoes, no mask, no service....the Constitution does not need to be dragged into debate over commonsense practices
AnneWimsey
Level 9
Aug 5, 2020
4
exactly
Right
To many arguments, I don’t give a damn about what the law says, when California opened up I continued to keep my anti social distance and still wore my mask because I have common sense.
You don’t have to wear a mask, that choice may cost your life or the life of someone you love, or even need.
This litigious outlook makes no sense to a rational person.
Willow_Wisp
Level 8
Aug 5, 2020
6
I wear a mask and gloves when I go out. But a lot of violence and boorish behavior has been perpetrated upon people for by clowns incorrectly claiming Constitution rights against mask wearing.
My purpose was to counter these incorrect claims by these boorish, unethical individuals. Another thing that many of these boors do not realize is that a business has the right not to serve someone that doesn't comply to these mandates. Businesses are private property and violators can be charged with trespassing.
@t1nick they need to have a scarlet letter tatooed to their forheads so when they get sick and need medical attention they can be turned away by any medical facility. let them self medicate.
make the letter an S for selfish and stupid
BTW Common sense is not the same as science. Please do not be offended . Just think about that statement. The choice tho, is yours as always.
@Mcflewster In this case common sense and science obviously match up.
It's the political spin and ONLY the political spin from the White House and those desperate for Trump to be right that causes the confusion.
@Willow_Wisp Thank you for taking us through your thinking. I have just got a 'thing' about using endorsements of common sense especially when DT says it too. BJ copies him. - but you think it through.
I view this more of a health issue, not a law or political.
It's a shame that people have to use issue's like this to justify murdering others by a deadly viral infection over just wearing a mask.
MrDragon
Level 7
Aug 5, 2020
1
it is both. By the 1905 Supreme Court decision and the Justice Robert's court decision, it is constitutionally legal to mandate.
Imagine that, a Republican judge actually doing his job. Lol
since when has protecting others become a constitutional issue? do we have to have laws for everything? why not just use common sense? after all there are no laws against me jumping on the table where you are eating and farting all over your face, is there? but I don't do it out of respect to others.
Mofo1953
Level 9
Aug 5, 2020
1
this was interpreted by the Supreme court. Public health overrides personal interpretations of the 1st Amendment
1905 precedent
@t1nick the waste of time was by the supreme court, i always read all postings and offer a comment with my opinion, if you don't like my opinion, well tough shit because this forum is to opine, and most often than not, many opinions will offer a different perspective, only those obtuse enough are threatened somehow if somebody doesn't acquiesce. Now don't get your panties in a bunch and calm down.
Pompous you are, yes. As always your "opine" doesn't move the discussion along, it just offers negativity. You don't offer constructive comments, instead you whine and bitch almost wasting your time.
You enter my threads then tell me to leave if I don't like your "opine". Some people. Go figure.
@t1nick dude, learn how to read. As I told you I read all posts and always comment on all, once you post it ceases to be "your tread" and it becomes a post in the group. Enlighten me by pointing to where did "I tell you to leave" because I have never done so. As I told you before, take a chill pill and calm down. Have you read your replies? Who's the one whining and bitching? Answer: look in the mirror.
Some claim they have a Constitutional right not to wear face masks if they want to. I did not find that info in there. Not in the Bill of Rights either. I work with a girl that claims Trump is doing a bang up job. I agree with her fully but explain that what I mean is NOT what she means.
DenoPenno
Level 9
Aug 5, 2020
1
A question: Is it possible for the next President to question the loyalty of the two last appointed Supreme Court Judges because the President who appointed them had undue influence from Russia? Who can tell if these people are influenced to destroy the country at some future date? Can we trust them? I know they were approved by the Senate, but for the most part it can be shown that they are also influenced by Russia and Putin. Thoughts?
dalefvictor
Level 8
Aug 5, 2020
1
They serve at the behest of the President. If trump leaves office, a new AG will be appointed. i suppose a post facto review of his tenure could be carried out?
@Green_Chile_Type Obviously, you do not know me, I am way to lazy to do that.
The simple answer to your question is no it is not possible. These are lifetime appointments insulated from political influence.
They are also human so of course they can have their opinions influenced. However their positions are immune from political attack. The system was deliberately designed this way.
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