Unmasking the COVID Mask Legislation—Look Before You Leap.
Feb 26, 2021 by David Fowler
Because of my political history and legal background, I have been asked a number of questions about COVID-related legislation and, in particular, mask requirements. I am concerned that citizens may urge their legislators to take actions on masks that will establish a bad precedent when it may not even be necessary if legislators have the legal and constitutional information they need to evaluate properly the legislative remedies being urged on them. In my book, never establish a potentially bad precedent if there are other ways to address a problem.
The issue of masks is not as easy as some believe.
First, personal issues are involved that bear on all of us emotionally. Some of the stories I’ve heard are gut-wrenching. But, civil law is, by nature, not mercy or grace, which means emotive-based and emotive-driven laws will often prove unsound.
Second, mask mandates involve matters of private property, quasi-private property under common law doctrines governing “public accommodations,” and differences between the spheres of strictly private relations vis-à-vis relations in which the government must be involved (like going to the courthouse).
Third, and here is where the bad precedent comes in, not wearing masks is not a true invidious discrimination type of civil rights issue, which is a tool some would use to prohibit businesses from requiring customers to wear a mask.
Masks Are Not a Civil Rights Issue.
Not everything a private person or entity does in relation to other persons is a “civil rights” issue in the true sense of that term. We have all become “rights” enthusiasts.
What we have now is a particular, existential problem related to masks that will go away in time, which is not like other true civil rights criterion like sex, nationality, or race. True civil rights criterion are usually immutable characteristics that simply do not bear on one’s “qualification” to enter a business open to the public.
To make freedom from wearing a mask during a time of wide-spread disease a civil rights issue is like taking a sledgehammer to a nail. If the reason for demanding such freedom is that masks are ineffective with respect to a current particular contagion, then the government should say so, and then we can evaluate what to do if businesses independently choose to continue requiring them.
In such complex, variable, and interdependent situations, one better know what the problem is, or the solution will be wrong. And, in this instance, I think government itself is creating or exacerbating the problem with local government mask mandates. I believe local governments have no lawful authority to impose mask mandates, and this problem should be attacked first.
What Citizens Can Do to Determine the Real Legal Problem
Before any legislation is passed, we need to know what the law is and who may be wanting to hide behind the local mask mandate orders.
To that end, at this link is a letter I prepared at a local politician’s request back in November to get at what I believe are unresolved legal and constitutional questions regarding local mask mandates. He chose to do nothing, for reasons I found appalling.
I would urge you to consider sending this letter to your state Senator and Representative, county mayor, and county sheriff. Tell them you would like to have these questions answered.
They can easily do so by simply submitting the questions on their letterhead to the Office of the Attorney General and asking for a quick but thorough response.
Here is the point: If some of these government-imposed mask mandates are unenforceable then the mask mandate issue may resolve itself without having to pass legislation that will set a bad civil rights precedent.
Ask, But Don’t Be Naïve About Underlying Issues
As you read responses from officials, do not be naive. Some businesses want a government mandate—either requiring masks or prohibiting masks, they really do not care—because then they do not want to have to decide which set of customers they least want to irritate.
Business owners may not care one bit about other legal principles like private property or bad legal precedents if they can point the irritated customer to the government and say the government requires them to do what is irritating.
I was in that position as a Senator when it came to banning smoking in all restaurants and other privately-owned facilities open to the public; these businesses did not want to upset either smokers or non-smokers and wanted to blame the legislature. (And, no, we did not make being free of second-hand smoke a civil right; we simply disallowed it in certain places.)
So, if an official tells you that this issue is strictly one of private property, and it does not matter whether the mask mandates are enforceable or otherwise tells you the questions in the linked-to letter need not be asked or answered, then you will have learned how much your official cares about having all the legal facts before enacting a new law.
That official, in my opinion, is dangerous, because there is never any harm in having as much information as possible before enacting a law, and I suspect none of them (except the handful who may be lawyers) can answer the questions in the letter of their own accord.
The advice that one should look before leaping certainly applies in this instance.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.