Millions of our fellow citizens believe there is a fundamental constitutional right not to wear a mask. If there is such a right, it should come as a surprise to anyone who has gone to law school. If the foes of masks are right, they will need to explain why the military draft was not stopped in its constitutional tracks. The conservatives have long insisted that constitutional rights appear in the text of the Constitution or are “deeply rooted in the nation’s tradition” and they typically insist that liberty rights be carefully defined and identified by the specific facts, not by anything as vague as liberty or freedom. That is why the conservatives maintain there is no right to an abortion. Neither “the right not to wear a mask,” nor the right to an abortion is deeply rooted in the nation’s tradition.
Other justices over the years have not looked exclusively or even primarily to tradition to identify unenumerated rights. They have not shied away from using broad concepts such as privacy to assist in identifying constitutional rights. They have drawn analogies to other rights in the Constitution. Indeed, they have looked to see whether the conduct in question is important for a flourishing life. From that perspective, women have the right make choices regarding childbirth; the right to use contraceptives is settled constitutional law; same sex marriage is constitutionally protected. Tradition be damned.
From either perspective, no tradition in our country and no liberty right countenances a right to expose other citizens to disease. Indeed, government has a compelling state interest in requiring its citizens to wear masks in appropriate circumstances. Liberty has always been a qualified right, and it always will be.
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