Legal Question in Constitutional Law in California

Am I legally empowered under the US Constitution to go about my business without that air obstructing, demoralizing mask? Also, I believe this pandemic is a big lie. Do I have to participate in this lie?

Asked on 3/27/21, 11:40 pm

1 Answer from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

The simple answers are "no" and "yes." If you want to understand why those are the answers under the Constitution, read on.

You have no constitutional right to disregard public health orders any more than you have a constitutional right to ignore traffic laws, for example. You are free to believe that a stop sign is unnecessary at a particular intersection, but you don't have a constitutional right to ignore it. You can be absolutely certain that a speed limit is stupidly low on a particular stretch of road, but you have no constitutional right to exceed it. So, likewise, you are entitled to think the pandemic is a lie, but you don't have a constitutional right to ignore public health orders. Your opinion about them is completely irrelevant to whether or not you have to comply with laws and regulations. You have no constitutional right to disregard them just because you personally think they are wrong.

Ironically, with the way "freedom" and "liberty" are fetishized in some circles, most often in the context of insisting that freedom and liberty are constitutional rights, the word "freedom" appears exactly once, and "liberty" only three times in the Constitution. The only "freedoms" actually guaranteed by the Constitution are "freedom of speech and of the press." "Liberty" appears twice in identical clauses of the 5th and 14th amendments which provide that a person may not be "deprived of life, liberty or property" without due process of law. If a law is passed giving public health officials authority to issue masking orders, and those orders are enforced by legal authority, it is exactly what the Constitution calls for: limiting liberty by due process of law.

The only other place in which "liberty" appears is in the Preamble, which is not a legally binding part of the document. Furthermore, the Preamble states that the purposes of the Constitution are as follows: "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Note that Liberty is only one of many ideals to be served by the Constitution, and note also that it is listed last. The general welfare of the people and the nation, comes before your liberty.

I don't claim to know who is right and who is wrong about the pandemic, but I do know the law and the Constitution, and they provide beyond any question that the government has the authority to determine that the general welfare of the public requires mask orders, and to enforce them. And the framers of the Constitution expected all good citizens to surrender their liberty to the extent it is limited by due process of law.

Lastly, it's not clear from your question whether you are only asking about mask orders, or also are talking about businesses requiring masks. The answer to whether there is a constitutional right to refuse to wear a mask in a store or other business, the answer is an even bigger "no." There is no such thing as a constitutional right that can be enforced against a private entity or person.

The Constitution only requires government to do things or prohibits it from doing things. It has zero effect on private business. Many people confuse legal rights with constitutional rights, because we have passed many civil rights laws that apply the same standards to private businesses and citizens as apply to the government, but they are distinct and different things. That's why, even though racial discrimination by government entities had been declared unconstitutional in 1954, four young black men were engaged in civil disobedience on February 1, 1960 in Greensborough, NC, when they simply sat down at a Woolworth's lunch counter. It was not until the Civil Rights Act of 1964 that racial discrimination by private businesses was outlawed.

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Answered on 3/28/21, 12:34 am

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