Mask Mandates Not Unconstitutional.

Are mask mandates Constitutional?

Many people think so but they may be wrong.

In 1905, the Supreme Court ruled in the case of Jacobson v. Massachusetts, that as the first responsibility of the government is to protect the people in order they may enjoy their rights. The Court ruled that a statute mandating vaccinations for smallpox during a smallpox epidemic was therefore Constitutional.

Justice Harlan wrote in the decision:

We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily, upon such action as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.

Courts have used the Jacobson decision to support mask mandates today, 115 years later.

Now Judge Patrick J. Schiltz (D. Minn.), has rejected an argument by The Minnesota Voter Alliance as a group and individual members that mask mandates in Minnesota violate the Constitution, specifically the First Amendment. In his decision in the case of Minnesota Voters Alliance v. Walz, Judge Schlitz opines:

The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in United States v. O’Brien (1968). This does not mean, however, that every law regulating conduct is subject to scrutiny under O’Brien whenever an individual decides to violate the law for the purpose of sending a message.

If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result.

To merit First Amendment protection under O’Brien, then, the conduct regulated by the challenged law must be “inherently expressive.” Here, … the conduct at issue is not inherently expressive…. [A]n observer would have no idea why someone is not wearing a face covering. Absent explanation, the observer would not know whether the person is exempt from EO 20-81, or simply forgot to bring a face covering, or is trying to convey a political message. That fact takes the conduct outside of the First Amendment protection afforded by O’Brien.

Even if wearing or not wearing a face covering was inherently expressive, EO 20-81 is clearly constitutional, whether analyzed under O’Brien or Jacobson. Under O’Brien,

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. Likewise, there is no question that EO 20-81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease. As discussed above, federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.

Finally, EO 20-81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary; plaintiffs are free to express their opinions about EO 20-81 in every conceivable way except by violating its provisions and putting at risk the lives and health of their fellow citizens.

Likewise, EO 20-81 is constitutional under the standard established in Jacobson v. Massachusetts (1905), which requires courts to examine whether a measure adopted to address a public-health crisis has a “real or substantial relation” to the crisis and, assuming that it has such a relation, whether it is “beyond all question, a plain, palpable invasion” of a constitutional right….

In essence, Courts are saying “your rights end at my nose, and you have no right to put the health of others at risk.”

3 Responses to “Mask Mandates Not Unconstitutional.”

  1. Luke says:

    These discussions/logic seem very similar to what is used to justify motorcycle helmets, seat belts, baby seats, life preservers, etc. The logic in these cases wasn’t that i have to do something so i wouldn’t harm you physically, but instead so i wouldn’t cause harm to society in the form of increased financial costs when these folks started showing up in hospitals and couldn’t pay their bills. I think helmet law can actually be ignored if you have insurance (and therefore won’t create a financial burden on society).

  2. captainfish says:

    So, in order to prevent pneumonia (which is still killing more people than covid19), the state should mandate all people wear coats outside, and blankets to be worn while inside, when outside temperatures fall below 60 degrees. This is to prevent the increase in hospital visits and the spread of the infection to others.
    States should also require everyone to wear steel-toed shoes when outside, regular shoes while in their homes, to prevent foot damage and reduce hospital visits.
    States should also regulate stores not have any shelves above chest level, and storable items shall not be stacked above head height in the back of stores, in order to prevent falling of items on people’s heads and to prevent the increase in hospital visits and lawsuits from such injuries.
    States shall also mandate the wearing of SPF50 sunblock to prevent the spread of skin cancer in order to reduce hospital visits and deaths from cancer.
    States should also eliminate all forms of traffic except for personal bi-ped traffic in order to reduce traffic collisions, deaths, and hospital visits.
    If anything can be regulated to be a public health crisis, then everything can be.

    • AAfterwit says:


      Thanks for the comment.

      Reductio ad absurdum much?

      There is a difference between pneumonia and COVID-19. With pneumonia, we know the treatment. Not so much with COVID. (And no, pneumonia is not killing more people than COVID.)

      The basis for regulating masks is the simple fact that while if you want to die, get sick, or whatever from COVID, you are free to do so. However, what you are not free to do is to affect my life, my health and the lives and health of my family. Your rights end at my nose.

      But to specifically address some of your arguments, states and the federal government do address when steel toed shoes must be worn. (They even address sandals in the workplace.) Shelves, shelving and storage have standards. There are some jobs where sunblock is required. The government does regulate safety standards in vehicles. Some states require yearly inspections to promote safety.

      We are not saying whether governments should require masks, only that the government has the right, and some would argue the duty, to protect citizens from the childish antics of others.

      Thanks again.

      A. Afterwit.