The Link in Principle Between Mask Mandates and Roe v. Wade

Jan 28, 2021 by David Fowler

The Link in Principle Between Mask Mandates and Roe v. Wade
I have often quoted Alexis de Tocqueville’s statement that “if lights that guide us ever go out, they will fade little by little, as if of their own accord” and that “[c]onfining ourselves to practice, we may lose sight of basic principles, and when these have been entirely forgotten, we may apply the methods derived from them badly.” Mask mandate legislation just filed in the General Assembly showed how dimly the lights had flickered in me until the last few years. I could verbalize basic principles, but the connection between them had not hit home as it should.

The basic principle is one I have been quoting in speeches since before entering politics 26 years ago. It comes from William Blackstone, the famous 18th Century expounder of the laws of England from who our founders drew heavily, even as our current U.S. Supreme Court Justices do (when it serves their desired outcomes!). It is this:
“[T]he rights of all mankind . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property. . . . [B]ecause, as there is no other known method of compulsion, or abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense." (emphasis added)

I understood that civil liberty depended on the “preservation” of these three fundamental rights and their relation to the three rights found in the Fifth and Fourteenth Amendment’s Due Process Clauses. However, I had missed that the three must hang together until this point was made by Justice Clarence Thomas a few years ago.

Each of the three rights has to be construed in a way in which they can stand in harmony with the other two. And the consequence of diminishing or expanding the meaning of one at the expense of the other is, in principle, the introduction of tyranny or, as Blackstone said, government “compulsion.”

A simple illustration in the context of abortion will illustrate this point.

Abortion--An Example of How These Rights Must Be Defined in Order to Hang Together

It is undisputed, even by the U.S. Supreme Court, that the common law was the context in which the Constitution, as a legal document, was framed. 

At common law, the “right of personal security consist[ed] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” (emphasis added)

“Personal liberty” was said to “consist[ ] in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” (emphasis added)

These two sentences explain why the Fifth and Fourteenth Amendments required due process concerning “life” and “liberty,” and, of course, also “property.”

Due process is a requirement that violations of law for which the diminution of life, liberty, or property is a consequence must be proved by a fundamentally fair process, which, a common law, required juries in certain types of cases, the confrontation of witnesses, and the like. These requirements are part of the “process” that is “due” a person before fundamental rights can be diminished.

The disregard of two values—life and liberty—and the requirement of due process is what makes the pro-life community so upset from a constitutional perspective. In Roe, the Court ignored the generally accepted notion of liberty, which did not of necessity conflict with the generally accepted understanding of life, to expand liberty at the expense of life. One person now has the liberty to hire someone to kill another person.

When anyone in government can play with the meaning of these words and sacrifice one to the other, then governmental tyranny is afoot.

The Tyrannical Law in Question

The proposed mask mandate legislation that caught my eye is rooted in the same principle as Roe v. Wade. But, surprise, it is not legislation intended to prohibit the government from requiring persons to wear masks, which I would understand.

Rather, the proposed legislation that concerns me would have the government, by compulsion, prohibit a private business owner, who owns private property and goods, from requiring that a mask be worn by those he or she invites onto on his or her private property to purchase the good he or she privately owns (or holds on some form of consignment).

This is a government-imposed diminution of the right of personal property by means of an inflated understanding of personal liberty not known at or even protected by the common law. There is no fundamental right to this kind of liberty, at least not according to the Framers of our Constitution. And there is certainly no “right” to this kind of liberty by one person at the expense of another person’s right to private property.

This is exactly the same wrong understanding of fundamental rights as employed in Roe v. Wade.

Why This Legislation Does not Protect Liberty and Should Not Diminish Property Rights

Our legislators can certainly enact the bill as law and point to “representing” the will of constituents who are understandably tired of wearing masks or of feeling guilty or being shamed for not wearing one.

But its passage on the grounds that a group of people can demand that the government exalt a form of personal liberty never understood to be real liberty or protected by our Constitution over a clearly understood form of property rights belonging to other people demonstrate that the lights that have guided us no longer flicker. Not on this issue at least.

Does this mean that it is always wrong to circumscribe the right to private property? No. But in this circumstance, the real form of fundamental liberty we actually have is not being diminished by another person’s use of his or her private property in a way that violates a clear command of God.

No one is limiting any person’s liberty to shop or to buy things in general.

If I don’t like the conditions on which someone invites me to enter their private property to purchase privately-owned goods, I can go shop and buy where the property owner and goods do not require me to wear a mask.

Remember, the principle being applied today may someday be applied to you, and you will lack any moral high ground on which to protest the diminution of one of your three fundamental rights.

Conclusion—What This Portends for Our Future

The proverbial “party,” in terms of the foundations of our form of civil government, is over if those who say they love the Constitution and revere our God-given rights to life, liberty, and property can be so easily convinced to use the power of government against the fundamental, God-given rights of another, all in the name of doing “the right thing” or “representing their constituents.”

Statesmen know that the first duty they owe their constituents is to not use the power of government compulsion to diminish fundamental rights at the expense of a right that is beyond that which is actually fundamental and made up.

I do not know why God did not have me understand better the meaning of light I saw years ago in order that I might, in turn, illuminate it more clearly over the years. But may God now help me do so.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

Subscribe to Email Updates


Donate to FACT

Make a Donation