Mask Mandates Violate Our Rights. I Support Them Anyway.

States of Exception are Exceptions, and Karens are a Necessary Evil

As local governments and federal agencies around the US struggle with the contentious question of mask-wearing and the closures of non-essential businesses and venues, it is worthwhile to consider the question of the extent to which these measures violate our rights of freedom of speech and assembly.

There is both an idealistic and a prosaic way of analyzing this question.

The Idealistic View

In the absolutist idealistic sense, they unquestionably violate our rights. The first amendment of the US Constitution guarantees a right to peaceably assemble — a right that is unquestionably violated by laws preventing assemblies. The first amendment also guarantees freedom of religion, a freedom that is clearly violated when church services cannot be held (ask any minority religious group in a religiously oppressive country what a notional “freedom of religion” means when services cannot be legally held). The fifth amendment also states that “No person shall[…]be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. And yet many of these orders were put in place by executive action, and much of the country was morally elated when a Tennessee man was forced by the state attorney general into donating his legally-acquired property for no compensation. Were we to poll the American people in 2019 and ask them whether anything would legally or morally justify laws that require they wear a certain article of clothing or stay at home, I can only assume that the overwhelming majority of respondents, myself included, would have answered a wholehearted “no”, and most of us would have cited constitutional reasons for that objection.

And yet the majority of the American people, myself included, have by and large supported social distancing laws and mask mandates that have been implemented to slow the spread of Covid-19. Why and how do we rationalize this dissonance — or is it simple hypocrisy? The term “state of emergency” and “state of exception” define this period well, and are widely recognized by all manner of legal bodies — from the ancient Roman Senate’s idea of iustitium to modern US Congress’s National Emergencies Act — as being times in which the rules cannot and should not apply because the pace and severity of the threat is such that quick and decisive action must be taken. The Roman iustitium ended roughly when a new ruler was able to establish himself as legitimate; the National Emergencies act stipulated the conditions and limitations of executive power. In contrast to these more orthodox opinions on the matter, the Nazi legal scholar Carl Schmitt used such times as proof that in truth, the modern liberal state was at its core authoritarian, and that the formalism of procedural and deliberative democracy would always be cast aside like so much tattered clothing as soon as soon as “real” decisions had to be made.

The Prosaic View

To take a more nuanced and prosaic look at this question, consider an exchange to which I was party in which a mask-wearing proponent asked the question “if you think that mask requirements are violating your rights, please tell me exactly which rights you think they are violating.” An indirect but nonetheless effective retort in this conversation was “If you think that being forced to wear a burqa would violate your rights, please tell me exactly which rights you think it would be violating”.

Exploration of these two mirrored questions is worthwhile for figuring out It is long established by US law that clothing can constitute a form of free speech as much as it can constitute a form of religious expression. However, popular jurisprudence also clearly upholds that some infringements on general principles of clothing as free speech are necessary and allowable. For example, many jurisdictions have bans on nudity that are upheld by court ruling. To generalize, the government can’t mandate *what* you wear but it can mandate *that* you wear.

The question is not “does mandating a mask violate your rights”. It does violate an absolutist position on a right to free expression as much as a burqa violates an absolutist position on the right to religious expression. The question is whether — and legal scholars love these questions — the dangers to public health are significant enough that the absolutist position should not be maintained. Jacobson V. Massachusetts was clear that violations of bodily autonomy (in that case vaccines) are allowed to preserve public health. I really don’t see how mask mandates would not be allowed under the same logic. But the fact remains: the difference between a burqa mandate and a mask mandate is not in whether one is a violation of rights and not another. They both are violations. The question is whether the public interest merits the violation. It’s hard to see how a burqa is in the public interest. But the benefit of masks is undeniable.

Conclusion

In both the idealistic and the prosaic reading of the law and the cultural context in which US jurisprudence is situated, we reach a similar conclusion: freedoms are not absolute. To quote from the ruling of Jacobson V. Massachusetts, “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.” In other words, rights and liberties exist, certainly, but they are not unstoppable weapons nor impenetrable shields when extreme circumstances demand they not be. I hope that most people would not follow Schmitt’s logic to argue that we must discard the trappings of democracy and embrace the authoritarianism inherent in any governmental system. We must realize, rather, that there are simply two systems at work: the democratic, rights-based one that prevails in normal times, and the emergency one that activates temporarily to save us in the face of imminent danger like that posed by Covid-19. I strongly disagreed with the goals of the armed protestors who demand an immediate end to emergency restrictions. And I disagree with the so-called “Karens” who refuse to wear masks and react with righteous indignation at the suggestion that they should make a small sacrifice for the greater good. They contravene the advice of public health officials the world over, and put at risk the health of the entire country and world. However, their acts of resistance and protest are a necessary evil, for they remind us that this state of exception must remain just that: an exception. They represent the political cost that a free people must impose on a government in order to prevent such exceptional circumstances and such obvious — but necessary — abrogation of rights from becoming a more widespread or permanent condition.

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