Balkinization: Masks and Rights Talk

Masks and Rights Talk

David Super

I am struck right-wing protesters’ repeated, adamant insistence that mask-wearing requirements violate the Bill of Rights. The (utterly unfounded) claims that it is unnecessary and the (abjectly paranoid) assertions of an elite conspiracy to promote masks are sadly pretty ordinary in today’s political environment. But the normative “rights talk”, and the attempt to ground it in a conception of constitutional law, seems different and worthy of more attention. I remain completely unpersuaded that mask requirements offend any basic rights. But as someone interested in popular constitutionalism, I feel the need to unpack this specific invocation of the Bill of Rights. What could it mean?

Wearing a mask does not take away anyone’s gun, does not quarter any soldiers, and does not search or seize anything. Mask requirements change nothing about how crimes are investigated, prosecuted, or punished. They have nothing to do with the conduct of civil trials. Perhaps someone could try to invoke the Tenth Amendment against federal mask requirements, but virtually all come from state or local governments or from private entities such as stores or universities.

That leaves us with the First and Ninth Amendments (and that part of the Tenth Amendment that “reserve[s powers] to the people”). Thinking about mask requirements in connection with each is revealing.

Many opponents apparently see wearing a mask as an expressive act, implying that they take seriously a pandemic that they regard as a liberal hoax. The functional and expressive aspects of mask-wearing, however, can readily be separated. Masks can declare support for President Trump or other conservative causes, much as one can tape over offensive slogans on license plates.

A prominent example of expressive conduct that is protected because it need not have any functional side is flag-burning. Yet President Trump, whom many of the protesters regard as their leader, has demanded renewed criminal penalties for burning the flag.

Where expressive conduct is more difficult to separate from the government’s functional needs, as in the case of burning draft-cards, current First Amendment doctrine has been more amenable to regulation. Are anti-mask protesters rejecting these decisions and insisting on a more absolutist protection of expressive conduct, even where it has serious real-world adverse consequences? If so, what does that say about civil rights protesters pulling down white supremacists’ monuments? Few of those monuments’ monetary value to the state approaches that of the hospitalizations, and potential life-long need for disability benefits, resulting from rampant spread of COVID-19. The state may have sentimental or ideological investment in those statues, but it surely has much stronger interests in the well-being of its people.

It also would be interesting to know whether protesters would take the same view of the right to refuse to wear one particularly article of clothing, a mask, and to refuse to wear any clothing at all. The Court has struggled to reach consensus on a rationale for handling nude dancing cases, but it does appear to regard potential third-party effects as an important justification for compelling entertainers to wear clothes. Some progressives are unenthusiastic about making strong First Amendment claims for nude dancing because they see it as a vehicle for men’s degradation and objectification of women; I imagine some protesters likely would say that mask requirements manifest an elite’s contempt for the dignity of ordinary people. I suspect anti-mask protesters may be divided in their views on state regulation of nudity.

Needless to say, the First Amendment theory of the anti-mask protesters is far from clear at this stage. For some, the invocation of the First Amendment is entirely cynical and opportunistic. Yet with some progressives are criticizing First Amendment doctrine as increasingly focusing on corporate interests, understanding the thinking of people on the right who are making claims for individual expressive rights seems worthwhile.

The Ninth (and Tenth) Amendment implications of mask-wearing requirements are even more intriguing. Is the right to refuse to wear a mask one that is “retained by the people” (or the power to say whether a mask is needed one “reserved … to the people”) despite the absence of any such right or power in the constitutional text? If so, this would be a remarkable turnaround by conservatives, who have harshly disparaged the unenumerated Right to Privacy since Griswold v. Connecticut and particularly since Roe v. Wade.

Espousing unenumerated rights that protect the refusal to wear masks in a pandemic is not necessarily inconsistent with rejecting an unenumerated Right to Privacy: once one accepts the concept of unenumerated rights, one must sift through which claims to such rights have merit. The right to be free of unwanted masks and the right to be free of government regulation of sexual and reproductive choices do have similarities, notably their common grounding in personal autonomy. The counter-arguments to each also resemble one another, citing negative effects on unwilling third parties (persons the unmasked individual might infect and fetuses). People who support one purported right and reject the other presumably differ on the relative importance of those aspects of personal autonomy or on the strength and legitimacy of the asserted third-party interests.

Mask protesters who oppose abortion rights likely would argue that the third-party effects they cause are accidental whereas the harms abortions do to fetuses are intentional. Early opponents of workers’ compensation laws tried, with some initial success, to constitutionalize the principle that the state lacked the power to impose civil liability without fault. Even if the mask protesters could revive and prevail on that argument, however, it might not help them. Failing to wear a mask in a pandemic characterized by asymptomatic transmission may well be negligent or even reckless, which in either case would put the unmasked individual at fault. Moreover, even the very conservative early 20^th Century Supreme Court upheld state power to regulate activity of the kind that can cause tortious injuries without proof that the particular subject of the regulation was doing so.

Here again, protesters’ views have not yet crystalized into a detailed, coherent theory of unenumerated rights. That does not mean it will not do so in the months or years ahead. In the meantime, we should not assume that the debate on recognizing such rights follows a clear left-right divide, if it ever did.

My broader point here is that progressives interested in the Constitution should take seriously “rights talk” among those on the political right as well as those on the political left. We also should not limit ourselves to those in the establishment right, many of whom are resented by grassroots conservatives as much as progressives are. Bruce Ackerman attributes the paucity of sweeping constitutional amendments since the New Deal Era to our having found other means of achieving constitutional change. I believe he is right as far as he goes, but we also should consider how we lost the ability to form limited-purpose coalitions for constitutional change among those with very different governance agendas. Taking seriously the “rights talk” of those with whom we hold sharp disagreements could eventually lead to restoring that capability.

@DavidASuper1

Posted 5:29 PM by David Super [link]