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 20th 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