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Is requiring a face mask truly an infringement on rights/liberties?

Katherine Ashley Chen

October 12, 2021

In January 2020, the World Health Organization declared the COVID-19 outbreak a global pandemic. As the virus spread across the world, countries began implementing measures to curb its growth and decrease fatalities, including curfews, lockdowns, and face mask mandates. Since then, as the pandemic has subsided, many American state governments have continued to apply public mask mandates, while some companies have continued to require mask-wearing in the workplace. Although mask requirements may be inconvenient, they are not an infringement on personal liberty or speech, as they have been shown to be effective for public safety and fall under the government’s emergency powers as implied in the Constitution and enforced by the judicial branch.

First, Article 2 of the Constitution gives the executive branch extensive and broad authority to use at their discretion to determine how to enforce laws, implying that the government has additional powers during times of emergency. While there is no word “emergency” in the constitution, there is no doubt that framers created the document keeping in mind how to permit the government to deal with emergencies in an effective manner, as they left allocation over authority related to emergency situations to the executive, and left other language around executive power open-ended. Additionally, the history and wide acceptance of presidential executive orders has widely expanded and allowed executive powers during times of crisis, implying that the government is allowed to exercise additional powers in emergency situations to reduce the harm upon its citizens. Although the Constitution balances the three branches of government, the framers recognized that power naturally concentrates around the federal government during times of crisis and that the executive may exert greater power than usual in these situations.

Many modern scholars concur. For example, Charles Evan Hughes, a former Supreme Court Justice, wrote in his 1995 essay, “While emergency does not create power, emergency may furnish the occasion for the exercise of power.... Thus, the war power of the federal government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation.” His argument essentially states that the federal government’s power always exists, but is strengthened by the immediate nature of emergency and war. He also says that the government can decrease the collective freedom of the people in order to protect the country as a whole during these times of crisis. This is significant because it demonstrates the balance of power that the government must always juggle, and suggests that the government may create mandates that usually are unconstitutional to protect the public.

Moreover, the judicial branch has upheld the government’s additional exercise of power during times of public health emergency. For example, in the 1902 smallpox outbreak, Massachusetts created a regulation ordering the vaccination and revaccination of all its inhabitants. Jacobson refused vaccination saying that he and his son previously had bad reactions, but was nonetheless prosecuted. He argued until his case reached the Supreme Court, saying that punishment for refusing vaccination was a violation of his liberty and that Massachusetts' law was unjust and oppressive. However, in the case Jacobson vs Massachusetts, the Supreme Court upheld the state authority to enforce mandatory vaccine laws, demonstrating that individual liberty is not absolute and can be subject to state police power in times of emergency or public health crisis. The Court’s ruling demonstrated the idea of balance between liberty in order by showing that in times of crisis, personal liberty may be slightly minimized as there must be greater order to protect society as a whole.

In a similar case Schenck vs US, Schenck was prosecuted under the previously established Espionage Act for distributing pamphlets encouraging people to resist the army, but he argued that the Act itself was unconstitutional and he was entitled to speak his mind under the First Amendment rights. However, the Court ruled against him and said that speech creating a “clear and present” danger was not protected under the First Amendment and that Schenck’s speech had created danger due to that time’s emergency wartime situation. Although Schenck’s case was about free speech while Jaconson’s case was about privacy, in both cases the court enforced the idea that personal liberty is not unlimited, and that emergencies may create situations where additional regulations apply. Due to the sheer number of deaths and fatalities, as well as the inconvenience it has caused, there is no doubt that the coronavirus pandemic has created a situation where the supreme court’s ruling that individual liberty must be limited for the good of the public during emergencies is applicable.

Some argue that mask-wearing does not prevent the spread of the coronavirus, as it doesn’t reduce the risk of infection upon the wearer. Many cite a Danish study published in the scientific paper “Annals of Internal Medicine” that compared the incidence of coronavirus in a group that were told to wear masks to a group that were told not to wear masks. The findings of the study showed that 2.1% of the control group compared to 1.8% of the mask wearing group were infected by the virus, a discovery that is not statistically significant. The basis of many ultra-right media anti-mask arguments rests upon this study and the argument that mask-wearing is ineffective.

However, although certain studies have shown that mask-wearing only slightly reduces infection rates of the wearer, this does not refute the fact that collective mask-wearing reduces infection rates as a whole, as masks primarily serve to prevent the spread of the virus towards others. The authors of the study themselves write that the findings “should not be used to conclude that a recommendation for everyone to wear masks in the community would not be effective in reducing SARS-CoV-2 infections, because the trial did not test the role of masks in source control (preventing the spread of the virus from those already infected) of SARS-CoV-2 infection.”

Mask requirements and collective mask wearing has been shown to reduce the spread of coronavirus within society as a whole, as shown by the graph of Kentucky covid case counts vs mask mandates. In the graph, counties without the mandate initially saw a spike in cases up to around 30 daily cases per 100,000 people, which subsided around July, before a second rise in Covid case numbers led to 40 daily cases per 100,000 people in October. However, counties with mask mandates started July with around 20 new daily cases per 100,000 people per day in July, and stayed around that number all the way until the end of October. The data demonstrates how although mask mandates may not protect the wearer, they protect the community as a whole by stabilizing the number of daily cases and preventing large spikes in the virus’ spread, and refutes the argument that mask requirements are ineffective to society as an aggregate.

Altogether, mask requirements are not a governmental infringement upon personal liberty because they provide substantial order within society at the small expense of slight inconvenience. Furthermore, the argument that mask requirements are unconstitutional is irrelevant, as the government can adopt more stringent regulations/rules in times of emergency, as upheld by the Constitution’s implied powers and numerous rulings by the judicial branch.

Works Cited

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Image Credit to Vox