The Constitution, the Right and Face Masks

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Over the last few weeks, I have been asking, very publicly, that my city enforces the state mask mandate. The order could include fines, but so far the police have been extremely reluctant to issue citations. So I took my one person loud protest to my Mayor’s Facebook page. Why? Health orders, like any other regulation or law, have zero teeth if they are not enforced. And in the midst of a global pandemic, a ticket will be effective.

We continue to act as if this were a game. While we do this, 166 countries, so far, have closed their borders to Americans. Granted, most Americans will not notice since a minority hold valid passports. So not being able to travel will not affect most people’s lives, and we are highly provincial and insular people. So there is little curiosity as to how former hotspots, like oh Italy, are doing. Well, they wear masks. They wash their hands, they continue to social distance, and they have contained the virus. It is to the point that they have mostly opened their economy and mostly gone back to some normalcy.

Like other places, they take this seriously. Most critically, they do not see a health order that will help buy time until a vaccine is found, as a terrible infringement in daily life. In fact, wearing a mask in many parts of the world is not just common sense, but patriotic. They also have a higher trust in experts and less of this my opinion is as valid as yours. They are not yet fully in this post facts dystopian world. They are also better educated. It is a good question how much better, but at least they do listen to instructions better, and there are some hefty tickets for those who don’t follow these basic rules.

Now to tickets in California. Several Southern California cities are issuing tickets already. These are civil liabilities, and tickets seem inversely proportional as to how bad things are. County of San Diego law enforcement is still reluctant to issue these mask related tickets. And partially this is a lack of political will from mayors and county officials, in my view because enforcement will need to happen with people who usually are not policed that much. According to KPBS:

While infections surged throughout June, San Diego Police Department officers issued just three citations and the Metropolitan Transit Service (MTS) issued one, according to a KPBS review of police records. None of the other 13 police agencies in the county issued any citations in June.

The United States not only has a libertarian bent. And let’s face it, the individual is revered above all else, but many Americans are very poorly educated. We do need to teach people about how laws become laws, and how precedent works. But there is also this idea that mandates don’t have the force of law during an emergency.

I wish I were kidding. Some people believe that only laws passed by Congress are laws. Never mind each state, county, and local government has legislative bodies. But in this fantasy as long as Congress has not passed a mask mandate, there is no law. While it would be nice, a federal mask mandate, or actual legislation, probably will never happen. Why? There is this pesky Tenth Amendment that reverts all powers not listed in the Constitution to the states. Amazingly, this includes health mandates.

This frustrates President Donald Trump to no end. He cannot order governors to open their economies or schools. Why? The Tenth Amendment. But this is not part of the conversation for many of these people. They do not understand that yes, state and local governments have the authority to issue mask mandates, and there is precedent. But the Constitution!

These discussions usually devolve into insults. I have been called a Nazi, which is funny as hell. The Nazis, the real ones, wanted to kill people, not keep them alive by using very low tech solutions. Yes, washing your hands, and wearing a mask work. I guess since they don’t involve fancy things, Americans do not believe they work.

I have also been called a statist, which is also a far-right reflexive talking point. They hate it when this is pointed out. And of course, the Constitution comes up often. Precedent is alien to these people. Or the fact that there is a way American law happens. This includes precedent, which seems insane that they have never heard of it. Or that the foundational document is not a suicide pact.

The problem is that many of our political leaders fear these people. There is no other explanation for this refusal to do what is needed to control the virus. And let’s face it, some of our political class are just as poorly educated as these people. They vote for politicians who reflect the fantastical ideas they have about the Constitution of reality. It is part of an ideology of selfishness that will get real people killed.

Suffice it to say, the Constitution is neither cover for not using a face mask. Nor is a suicide pact. In reality, the Founders, and later generations, would have no issue with local mask mandates. There is precedent to the courts deferring to public health officials during epidemics, whether they are local or state-based.

Written by

Historian by training. Former day to day reporter. Sometimes a geek who enjoys a good miniatures game.

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