No, There Isn’t A Constitutional Right To Not Wear Masks

As the country faces the gravest public health crisis in its history, with an estimated 1,000 people dying every day, some Americans are refusing to wear face masks despite overwhelming evidence that it saves lives. Some refuse simply because the masks are uncomfortable. Others believe wearing them is “shameful, not cool, a sign of weakness, and a stigma.”

Many say they have a “constitutional right” not to wear masks and mask mandates are forms of totalitarian rule. Anthony Sabatini, a Republican member of the Florida Legislature, has even used the term “Mask-Nazi” to protest mandates.

Do individuals have a constitutional right not to wear masks? They do not.

Are such mandates undermining American democratic government? They are not.

It should be obvious that all of this is about more than masks. Fundamentally, it is about the very meaning and viability of liberal democracy. The references to totalitarianism reflect a profound misunderstanding of the American Constitution and the values that undergird it. The values of liberal democracy have always been about individual rights and duties. Yes, the Constitution protects individual rights and limited government, but the core pillar of our government is the need to defend the lives of citizens against enemies. This includes covid-19.

Many trace the foundations of our liberal democracy back to John Locke, the 17th century physician, natural law philosopher and social contract theorist. In his “Second Treatise of Government,” Locke famously proposed a theory of limited government. The purpose of government, he wrote, was to protect individual rights, and he mentioned the rights to “life, liberty and property.” But to distill his thinking into such a one-liner, as is so often done, is to grossly oversimplify and misrepresent his thought. Why? Because Locke also said that a binding law of nature obliged every human being not to harm “the life, the liberty, health, limb, or possessions” of another.

Like other social contract theorists, Locke believed the reason individuals would establish government was for self-preservation. Without government, humans had no way of adjudicating conflicting claims. Each person would be judge, jury and executioner in his own case, and it would lead to endless and even violent conflict. So, individuals agreed to give up some of their liberty in exchange for a larger, collective good.