covid-19
How does a requirement to wear a mask infringe civil liberty?
<p>I come from a scientific background, so wearing a mask is second nature in a laboratory &amp; clinical settings: I am biased because I do not want to infect patients or inhale pathogens.</p>
<p>That being said, I am trying to understand the viewpoint as to exactly what liberty and how the requirement to wear a mask infringes upon anything.  For context Google return major news outlets with keywords <code>COVID</code> <code>Mask</code> <code>protestor</code></p>
<p>Any reference to a statute or case law is appreciated.</p>
<p>UPDATE: if it helps: assume that the governing law is the United States.  I am not a lawyer: the closest I have come to the legal field is patent prosecution</p>

<h2>The right that the government leave you alone</h2>
<p>All modern, pluralistic democracies have a number of specifically protected or traditional rights (for example, <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/1-the-inquiry-in-context/traditional-rights-freedoms-and-privileges-2/" rel="noreferrer">Australia</a>) which at their root encompass the idea that the government should leave the individual alone unless interference is necessary. In general, the types of regulations that have been promulgated in response to the pandemic conflict with the following Australian rights because they may:</p>
<blockquote>
<ul>
<li><p>interfere with freedom of speech;</p>
</li>
<li><p>interfere with freedom of religion;</p>
</li>
<li><p>interfere with freedom of association;</p>
</li>
<li><p>interfere with freedom of movement;</p>
</li>
<li><p>interfere with vested property rights;</p>
</li>
<li><p>deny procedural fairness to persons affected by the exercise of public power;</p>
</li>
<li><p>inappropriately delegate legislative power to the executive;</p>
</li>
<li><p>authorise the commission of a tort;</p>
</li>
<li><p>interfere with any other similar legal right, freedom or privilege.</p>
</li>
</ul>
</blockquote>
<p>With masks, in particular, the last two seem the most appropriate.</p>
<p>It is <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/1-the-inquiry-in-context/justifying-limits-on-rights-and-freedoms/" rel="noreferrer">generally accepted</a> that laws that limit or restrict these sorts of rights should be proportional and subject to rigorous scrutiny.</p>
<p>With very few exceptions (e.g. a right not to be tortured), no right is absolute. This is so because once more than one individual has rights, those rights may (will) come into conflict. For example, my right to fire my crossbow may come into conflict with your right not to get a crossbow bolt through your head.</p>
<p>There is no doubt that requiring someone to do what they would not normally and do not want to do (e.g. wear a mask) is interfering with their liberty even if it is slightly more difficult to point to an enumerated right that is being violated.</p>
<p>Laws that do this sort of thing can founder on one of two shoals:</p>
<ul>
<li><p>The enactment, promulgation or enforcement of the law exceeds the power that the government actually has. For example, most of these restrictions have been promulgated by executive order: does the executive actually have the power to make such orders either on its own behalf or through a power referred by the legislature? Also, in a federal system, the federal government cant exercise governance in a matter reserved to the states and vice-versa.</p>
</li>
<li><p>Is the law itself in conflict with some other law guaranteeing a right? How is that conflict to be resolved? Laws have a hierarchy and a law that bumps into a law higher up will founder - regulations are trumped by case law, case law is trumped by legislation, legislation is trumped by a constitution etc.</p>
</li>
</ul>

<p>Exactly what liberty?  The right of liberty itself.  While the most basic meaning of liberty (as found in the 14th Amendment to the US constitution and other documents enumerating civic rights) is the state of not being imprisoned, it also implicates other freedoms, such as the freedom to walk out of your residence with or without a face mask.</p>

<p>It is well established, but apparently unknown to many people, that civil liberties may be restricted for compelling reasons, such as protecting public health or public safety.  The questions in any given case are, on one hand, whether the reason is sufficiently compelling to justify the restriction and, on the other hand, whether the restriction is an excessive response to the compelling reason.</p>

<p>A lot of incorrect answers on this one.</p>
<p>The short answer is that <em>as the law currently stands</em>, mask requirements, generally speaking, do not infringe on civil liberties. People are of course free to argue that they know the true, secret meaning of the law, but they are arguing about whether mask requirements <em>should</em> be considered an infringement on civil liberties, not whether they actually are under the law as it actually exists.</p>
<p>The reason begins with understanding that contrary to popular belief, the law <em>as it currently stands</em> generally allows the government to tell you what to do and what not to do. The <em>federal</em> government does not have that broad power, but <em>state</em> governments do.</p>
<p>This is where answers like Phoog's and Dale M's go wrong. There is no general, freewheeling right to &quot;liberty&quot; or &quot;to be left alone,&quot; at least not against the states. Governments generally have the power to regulate the vast majority of human interaction.</p>
<p>The <a href="https://www.law.cornell.edu/constitution/tenth_amendment" rel="nofollow noreferrer">Tenth Amendment</a> takes basically the entire universe of power that a government could conceivably have and gives it to state governments. It makes exceptions for powers the Constitution gives the federal government (e.g., raising an army), and for powers the Constitution prohibits the states from exercising (coining money). Any powers outside of those groups are shared by the states and their people.</p>
<p>The powers conferred by the Tenth Amendment's delegation are known generally as &quot;the police power,&quot; which are virtually boundless, <em>as the law currently stands</em>. Because it is so broad, it has been hard to define, but the definitive statement as to the scope of police power came from <a href="http://masscases.com/cases/sjc/61/61mass53.html" rel="nofollow noreferrer"><em>Commonwealth v. Alger</em>, 61 Mass. 53, 85–86 (1851)</a>:</p>
<blockquote>
<p>The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.</p>
<p>It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious, that all well regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades; to prohibit the raising of a dam, and causing stagnant water to spread over meadows, near inhabited villages, thereby raising noxious exhalations, injurious to health and dangerous to life.</p>
</blockquote>
<p>The U.S. Supreme Court has repeatedly endorsed this formulation. See, e.g.,
<a href="https://supreme.justia.com/cases/federal/us/97/25/" rel="nofollow noreferrer"><em>Bos. Beer Co. v. State of Massachusetts</em>, 97 U.S. 25, 27 (1877)</a>; <a href="https://caselaw.findlaw.com/us-supreme-court/173/285.html" rel="nofollow noreferrer"><em>Lake Shore &amp; M. S. R. Co. v. State of Ohio</em>, 173 U.S. 285, 297 (1899)</a>; <a href="https://supreme.justia.com/cases/federal/us/159/380/" rel="nofollow noreferrer"><em>Sweet v. Rechel</em>, 159 U.S. 380, 398–99 (1895)</a></p>
<p>This leaves us with a situation where the law generally accepts that the states' police power generally grants them the authority to enact laws to protect the public health. This includes mask requirements, quarantines, and temperature checks.</p>
<p>Many people find that arrangement extreme or oppressive or unreasonable, but it remains the current state of the law. The power to prohibit you from entering a store without a mask comes from the same place as the power to prohibit you from poisoning your neighbor, sending your child to school without vaccinations, poking strangers with dirty hypodermic needles, or detonating a biological weapon. Do those laws infringe on civil liberties? Some people may think so, but as a legal matter, they are incorrect for the time being.</p>
<p>The best case to illustrate the point is <a href="https://supreme.justia.com/cases/federal/us/197/11/" rel="nofollow noreferrer"><em>Jacobson v. Commonwealth of Massachusetts</em>, 197 U.S. 11 (1905)</a>, where Cambridge imposed a law generally requiring that everyone in the city be vaccinated against smallpox. When Jacobson refused, he was charged with violating the ordinance, put on trial and convicted. He challenged the vaccination requirement on the following bases:</p>
<blockquote>
<p>his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.</p>
</blockquote>
<p>The Court rejected all of his arguments and held that the power to order vaccinations was squarely within the police power (again citing <em>Alger</em>):</p>
<blockquote>
<p>The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.</p>
</blockquote>
<p>(The whole case is worth a read. It's really surprising to see how much the current debates over COVID-19 sound just like the debates they were having back then.)</p>
<p>So to claim such a mask requirement infringes your civil liberties, you must be able to point to the liberty being infringed, and that's usually where the opponents of mask requirements fail. The argument is generally that the government can't tell people what to do, but, as discussed above, the government <em>can</em> tell you what to do. In fact, that's the point of governments: to tell people what to do (preferably with an eye toward maximizing everyone's freedom, health, and happiness).</p>
<p>Of course, there may be specific circumstances where a mask requirement infringes on a civil liberty. If you have a health condition that must be treated and that makes a mask dangerous to you, a mask requirement may infringe on your right to bodily integrity. This is why you'll generally see exemptions in state mask requirements for those who are medically unable to wear a mask.</p>
<p>But a religious challenge (&quot;My religion prohibits wearing masks&quot;) is likely to fail, at least on First Amendment grounds, because &quot;the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'&quot; <a href="https://www.law.cornell.edu/supremecourt/text/494/872" rel="nofollow noreferrer"><em>Employment Div. v. Smith</em>, 494 U.S. 872, 879 (1990)</a>. (The outcome may be different when you run the problem through state-specific religious-freedom laws.)</p>
<p>If people raise them in the comments, I'm happy to discuss how Ameican courts would analyze a challenge to a mask requirement in the context of a challenge based on any particular civil liberty.</p>

<p>The US Constitution presupposes broad liberties, and explicitly enumerates a few of them (such as freedom of religion and the right to bear arms). One of the non-enumerated right is "freedom of contract", which has been limited especially at the end of the <a href="https://en.wikipedia.org/wiki/Lochner_era" rel="nofollow noreferrer"><em>Lochner</em> era</a>. Another non-enumerated right is the right to paint your house pink (a right abridged in some communities). There is a right to privacy, but not an amendment that guarantees that right, likewise a right to freedom of movement, to have children, to get married, and to defend your life and property. In other words, you have a right to go about your business without the government telling you what to do, although there are same well-established exceptions, like you can rob, murder, commit arson – the government can only restrict your actions in specific ways. There is ample disagreement over what these non-enumerated right are, so the courts will ask whether the rights is 'implicit in the concept of ordered liberty', or 'deeply rooted in this Nation's history and tradition'. Individual state constitutions are often more explicit about individual rights.</p>

<p>We will have to see how mask requirements play out in court, but the basic argument is that these requirements infringe on our constitutionally protected liberties. Fundamental rights <em>can</em> be infringed, but only subject to certain restrictions. One is that the restriction be necessary for a compelling government interest; the restriction has to be narrowly tailored, and the least restrictive means of achieving that end. It is an open question whether these lawsuits will delve into fundamental scientific questions of the effectiveness of the mandated action (which goes to the question of the action being "necessary"). The mask requirements add the complication that none of them (apparently) have the force of statutory law i.e. requirement passed by a legislative body, they are the result of executive order, where it is not clear that the executive actually has the claimed authority.</p>
