The Pandemic and the Role of Government
The Coronavirus pandemic exposes a shocking ignorance about the role of government in American society. I hear people, like Kentucky Attorney General Daniel Cameron, say that the Governor has no authority to impose a mask requirement. And I hear other people, like Rand Paul, say that this mask mandate violates their Constitutional rights. Both statements show a surprising lack of understanding about how American government works.
First, it’s that the states, not the Federal government, that are most involved in our daily lives. Most laws that impact our lives are state laws. Contract laws that govern employment contracts and the purchase of goods and services are state laws. Property laws relating to the purchase or rental of a house are state laws. Tort laws that govern everything from a car wreck to a slip and fall are state laws. Criminal laws — dealing with murder, rape, robbery etc. — are state laws. This is known as Federalism and is enshrined in the 10th Amendment to the Constitution.
Under this system of Federalism, the U.S. Supreme Court has said that a state has broad “police powers” to “protect the public health and the public safety” of its citizens. Based on this principle the Court has upheld both State quarantines and vaccine mandates.
But the Constitution also guarantees citizens certain broad “Constitutional” rights, like the right to speak, worship, and assemble freely. It does not, however, provide a broad “right” to do whatever we want.
The Supreme Court specifically addressed the tension between a citizen’s right to personal freedom and the state’s authority to deal with a deadly disease in the 1905 case of Jacobson v. Massachusetts. This case is still good law and recently cited by courts to uphold a number of state laws dealing with the pandemic.
Massachusetts had required every citizen to get a smallpox vaccine. Jacobson said that this mandate was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”
The Supreme Court disagreed, stating that “This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state’…” The Court explained that “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.”
The Court noted that all people “shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’”
The Court seemed to be directly addressing Rand Paul and Daniel Cameron when it said that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”
The Court summarized with a lesson that we really need to keep in mind today, stating that a “society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [judgement], whether in respect of his person or his property, regardless of the injury that may be done to others.”
So clearly the state has the authority to require people to wear a mask.
