Mask Mandates and Individual Liberties- We’ve Seen This Before

From New York bakers to mask mandates…

Photo by Brett Sayles:

Nearly a year into the COVID-19 pandemic and months of individuals claiming that mask mandates infringe on their freedom (or make it too difficult to breathe), court cases have been popping up around the country to debate those liberties. This debate will only continue to grow with President Biden’s executive order but it is not a new debate.

In the Supreme Court case, Lochner v. New York (1905), the Supreme Court overturned a state law that limited the number of hours a baker could work to 60 a week or no more than 10 per day. The Supreme Court’s majority opinion stated that the law infringed on a baker’s right to contract, and violated the due process clause of the 14th amendment, which states that no state may deny a person life, liberty, or property without due process of law. Although the law was intended to provide safer and cleaner work conditions for bakers, it also infringed on their freedom to earn as much as they could in a week.

This case is now controversial, as many of the Supreme Court decisions made during that time are, but Lochner v. New York was the first notable case in which the rational basis test was used by the Court to ascertain if the government has a legitimate interest in the law.

Using rational basis, courts will usually defer to the individual’s rights, unless a case can be made that the law in question is directly related to legitimate state interest, like protecting or promoting the general welfare.

In Lochner’s precedent-setting decision, the Supreme Court ruled that the state could not constitutionally restrict an employer’s rights, despite the state’s intent (sanitary conditions for bakery workers) because there was not a compelling state interest. Similarly, the first three laws passed by Congress to ban or deter child labor in the United States were also struck down by the Lochner Era Supreme Court to uphold state’s rights. It wasn’t until 1938, twenty years after the first law was originally passed, that child labor was outlawed by Congress with the Fair Labor Standards Act and upheld by the courts.

The Lochner Era spanned the first four decades of the twentieth century and overturned several socially progressive laws, including economic relief efforts signed by President Franklin D. Roosevelt during the Great Depression. Although this time of judicial decision-making is nearly a century in the past, modern constitutional arguments seem to reflect the sentiments made popular by Lochner v. New York.

In recent decades, two controversial issues have maintained prominence in the public’s attention concerning individual liberties and rights- gun control and reproductive rights. Both rights have either a constitutional or common law (judicial) grounding. The right to bear arms is given to us in the second amendment of the Bill of Rights. The right to have a safe and legal abortion without complications was established in the Supreme Court decision in Roe v. Wade.

Interestingly, both these cases are based on an individual right, but also have a legitimate state interest- the lives of gun victims and slowing the rate of mass and serial shootings; and the lives of unborn children/ fetuses.

One of the Founding Fathers, Alexander Hamilton, said that the Supreme Court is the protector of minority rights. So the question becomes — which minority’s rights should be protected?

Going back to the Lochner decision, Justice Oliver Holmes wrote that liberty cannot be used to prevent an outcome unless it can be “said that a rational and fair man… would admit that the law or statute in question would infringe on fundamental principles as they have been understood by the traditions of our people and our law.”

Could a rational and fair man admit that infringing on the right to bear arms is more important than reducing gun violence? Is there a compelling state interest for a state to outlaw abortions to decrease the number of terminated pregnancies?

Applying rational basis to a question of compelling state interest is not cut and dry. Each case it is applied to is subjective and requires detailed analysis before determining if the answer is yes or no. The answer is also extremely politicized. In a Gallup Poll, it was revealed that 22% of Republicans wanted increased gun control laws… compared to 80% of Democrats. 49% of Republicans are in favor of overturning the Supreme Court’s decision in Roe v. Wade, compared to 18% of Democrats. Favoring gun rights and reproductive rights are heavily partisan issues, with each side favoring the individual’s rights for one issue, and not the other.

Although primarily focused on economic issues at the time, not social, the Lochner Era Court was skeptical of government involvement, a largely conservative ideology. Today’s Supreme Court is also highly conservative with three new Justices in the past four years appointed by former President Trump. When today’s court hears a case on tightening gun control regulations, it will most likely be seen as an infringement of rights, despite the state interest. When the same court hears a case on abortion restrictions, the ideology historically will flip. Regulating a women’s ability to have a medical procedure done is considered by many Americans to have a strong state interest, the right of the unborn baby over the autonomic rights of the women.

Abortion and gun rights have been major talking points on campaign trails for years. In 2020, we added mask mandates. We have already seen a Supreme Court decision regarding state-wide lockdowns in South Bay United Pentecostal Church v. Newsom in which South Bay Church sued Governor Newsom over restrictions for religious gatherings to occur. The Supreme Court ruled in favor of the state saying that the government has the right and obligation to protect its citizens. In his majority opinion, Chief Justice Roberts invoked the century’s old decision made in Jacobson v. Massachusetts, citing the Constitution’s charge for the “safety and well-being of the people” to be entrusted to the government. In 1905, the Supreme Court decided in Jacobson v. Massachusetts that “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” thereby upholding a mandate for vaccination for the good of the people. While maintaining that there are limits on restrictions the government can impose, even when faced with a public health crisis, Jacobson set the precedent for today’s Courts to ask what is reasonable and justifiable when asked if mask mandates are constitutional.

In the coming months, we can expect to see several cases surrounding state-wide stay-at-home mandates, required mask-wearing, and vaccines. With a strongly conservative-leaning Supreme Court, we could be seeing a new era of Supreme Court rulings amid the global pandemic.



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