Mask Mandates are Constitutional

My column in today’s West Bend Daily News.

Government mask mandates don’t violate constitutional rights

Many on the conservative side of the political spectrum claim that government mandates to wear a mask violate their individual constitutional rights.

A not-so-shining example of these claims was evident at the recent meeting of the Washington County Board of Supervisors, where all the members of the board met in a small room, sitting in their usual close-to-each-other seats with not one wearing a mask. In that clearly unsafe setting, the board debated Resolution 17 that reminded the members of the oath they took to defend the Constitution and laws of the United States and Wisconsin. Much of the debate centered around their claimed duty to protect our citizens from overreaching state mandates requiring masks because they violate an individual’s constitutional right to “liberty.” The so-called “sanctuary” resolution passed unanimously.

Claims that the Constitution prohibits requiring individuals to wear a mask are ridiculous and wrong.

Many of these so-called constitutional arguments are based on a misunderstanding of the First Amendment to the U. S. Constitution and the similar provisions of Wisconsin’s Constitution. These provisions generally prohibit government from passing laws impinging on freedom of speech, press, petition, assembly and religion. A mask does not keep you from expressing yourself. It may limit where and how you can speak, but these “time and place” restrictions are not prohibited unless they discriminate based upon the content of the speech. You cannot campaign within certain distance of a polling location is a perfect example.

First Amendment liberties are not absolute. All constitutional rights are subject to the government’s authority to protect the health, safety and welfare of the public according to the Supreme Court in cases like Prince v. Massachusetts.

Similarly, claims that mask mandates violate the “right to liberty” are just as ill-conceived. The right to liberty is really an embodiment of the principle of individual autonomy summarized succinctly in the phrase, “my body, my choice.”

The decision of the U.S. Supreme Court in Jacobson v. Massachusetts puts the argument that only you can control your body in the scrap heap. The court ruled that the state could require smallpox vaccinations without violating Jacobsen’s right to personal liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.”

The court continued, “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” State courts have also ruled that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.

This “police power” doctrine commands that all constitutional rights, including liberty, speech, assembly, freedom of movement or autonomy are held on condition that they do not endanger others or the public welfare.

A general pandemic, like the one in which we currently live where a deadly communicable disease can be transmitted by those who show no symptoms, justifies a wide range of reasonable restrictions on our liberties. Believing otherwise turns the Constitution into a suicide pact.

The government can force you to wear a mask to protect others, just like it can ban smoking in public or make you use the seat belt in your car. Doing so does not violate your constitutional rights. 

States, under the 10th Amendment to the United States Constitution, retain broad powers to protect the health and safety of their citizens, even if the federal government cannot or does not act.

Businesses that require masks for their employees and customers do not violate individual rights either as long as the requirements are applied in a manner that does not discriminate against a protected class. Think about it as “no shirt, no shoes, no mask, no service.”

Those who continue to believe that wearing a mask is just a personal choice have no respect and do not care about their fellow citizens. They should stop claiming a mantle of constitutional right to justify their selfishness.My column in today’s West Bend Daily News.

Government mask mandates don’t violate constitutional rights

Many on the conservative side of the political spectrum claim that government mandates to wear a mask violate their individual constitutional rights.

A not-so-shining example of these claims was evident at the recent meeting of the Washington County Board of Supervisors, where all the members of the board met in a small room, sitting in their usual close-to-each-other seats with not one wearing a mask. In that clearly unsafe setting, the board debated Resolution 17 that reminded the members of the oath they took to defend the Constitution and laws of the United States and Wisconsin. Much of the debate centered around their claimed duty to protect our citizens from overreaching state mandates requiring masks because they violate an individual’s constitutional right to “liberty.” The so-called “sanctuary” resolution passed unanimously.

Claims that the Constitution prohibits requiring individuals to wear a mask are ridiculous and wrong.

Many of these so-called constitutional arguments are based on a misunderstanding of the First Amendment to the U. S. Constitution and the similar provisions of Wisconsin’s Constitution. These provisions generally prohibit government from passing laws impinging on freedom of speech, press, petition, assembly and religion. A mask does not keep you from expressing yourself. It may limit where and how you can speak, but these “time and place” restrictions are not prohibited unless they discriminate based upon the content of the speech. You cannot campaign within certain distance of a polling location is a perfect example.

First Amendment liberties are not absolute. All constitutional rights are subject to the government’s authority to protect the health, safety and welfare of the public according to the Supreme Court in cases like Prince v. Massachusetts.

Similarly, claims that mask mandates violate the “right to liberty” are just as ill-conceived. The right to liberty is really an embodiment of the principle of individual autonomy summarized succinctly in the phrase, “my body, my choice.”

The decision of the U.S. Supreme Court in Jacobson v. Massachusetts puts the argument that only you can control your body in the scrap heap. The court ruled that the state could require smallpox vaccinations without violating Jacobsen’s right to personal liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.”

The court continued, “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” State courts have also ruled that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.

This “police power” doctrine commands that all constitutional rights, including liberty, speech, assembly, freedom of movement or autonomy are held on condition that they do not endanger others or the public welfare.

A general pandemic, like the one in which we currently live where a deadly communicable disease can be transmitted by those who show no symptoms, justifies a wide range of reasonable restrictions on our liberties. Believing otherwise turns the Constitution into a suicide pact.

The government can force you to wear a mask to protect others, just like it can ban smoking in public or make you use the seat belt in your car. Doing so does not violate your constitutional rights. 

States, under the 10th Amendment to the United States Constitution, retain broad powers to protect the health and safety of their citizens, even if the federal government cannot or does not act.

Businesses that require masks for their employees and customers do not violate individual rights either as long as the requirements are applied in a manner that does not discriminate against a protected class. Think about it as “no shirt, no shoes, no mask, no service.”

Those who continue to believe that wearing a mask is just a personal choice have no respect and do not care about their fellow citizens. They should stop claiming a mantle of constitutional right to justify their selfishness.

Supporting Biden

This Bernie Sanders Supporter is voting for Biden

The overriding goal is to oust Trump

My political views have shifted significantly over seven decades. I was raised in southern California by parents who wholeheartedly supported the Republican Party. My mother told me the only Democrat she ever voted for was FDR. My dad believed his business depended on Republicans being in control. As a child and into high school, this was what I knew.

Unable to handle what they had raised, I was sent off to the very progressive high school my dad’s brother ran in western Massachusetts. At Buxton, I met students and faculty with very different political and social views. Instead of the Big Bands, we listened to classical music, the Weavers and Woody Guthrie. I learned union songs, about my family’s history in progressive education and their support for unions and civil rights. My mother cried when I came home for the summer in my sophomore year with hair longer than my usual buzz cut. My dad was furious when I questioned the wisdom of building nuclear arms to win the cold war. 

After high school and a short stint at an ivy league college, I dropped out and joined VISTA. I spent five years in the south organizing voter registration drives, marches on local school boards demanding an end to segregated schools and challenging the entrenched power systems oppressing poor people of color. I supported the War on Poverty launched by Lyndon Johnson and watched it be co-opted by Republicans and Southern Democrats.

I finished college in Madison and went to the UW Law School to learn how to change the system using the rules written by those in power. I marched to end the war, in support of civil rights and for women’s’ equality. I found my passion for justice in criminal law courses and knew I wanted to defend the defenseless from the might of the government. I spent 37 years making law enforcement follow their own rules.

Along the way, I also picked up a passion for the environment and learned of the social injustices imposed on native tribes in northern Wisconsin. That led me from working on the fringes of the Democratic party into a decade of working as a Green. I helped form the Wisconsin Greens and was active with the Milwaukee Greens in the 1990s. I found a home in the Green Ten Key Values. I worked with the national Green Committees of Correspondence and helped draft position papers adding flesh to a political platform rooted in grassroots activism. I fought against the early calls for the formation of a national Green Party because I thought it too early to run national candidates when local offices were more important to advancing the Green agenda. I still hold to that belief. 

I came back to the Democratic Party when I was elected Chair of the Wisconsin Bar’s Criminal Law Section and it took a stand against re-introduction of the death penalty being floated in the Wisconsin Legislature. I recognized that in our two-party system, the only way to defeat state sponsored killing was to support the Democrats that opposed it. 

I did not become actively involved as a local Democrat until the first Obama campaign. In Barack Obama, I saw a leader with a vision of grass roots power and a willingness to embrace and champion many of the issues I hold dear. I worked hard to get him and Joe Biden elected to the White House. I took to heart the campaign’s message that grass roots activism needed to continue after the election to support the issues raised during the campaign. 

We formed a series of local progressive groups to take on local issues with our public schools and others. We were independent of the local Dems, but many of their members were active with us. 

When Scott Walker got elected and Act 10 passed in the middle of the night, the war was on. Our independent progressive groups saw the need to unify progressive independents with the local Dems. We organized, put forward a slate and won the election for the leadership of the Washington County Democratic Party. We opened an office on West Bend’s Main Street and began to organize. We are still at it. Our office and its model of progressive community grass roots activism has been emulated in many other Wisconsin counties.

We, like other Democrats, split between Hillary Clinton and Bernie Sanders in 2016. When Clinton won the nomination, I tried to rally other Bernie supporters to her campaign knowing that a Trump presidency was not going to be good for our democracy. We did not bring enough progressives on board to carry the state.

I supported Bernie Sanders in the current campaign too because his platform is more sweeping and progressive than Joe Biden’s. Bernie chose to end his campaign and threw his support behind Biden when it became clear that he could not prevail at the Democratic Convention. Bernie understands clearly that the overriding issue in this election is to defeat Donald Trump and rid our government of his enablers. After that happens, we can work to enact a more progressive agenda that Biden is beginning to embrace.

Now is not the time to ride the horse of political purity. We cannot survive another four years of the misogynistic Trump oligarchy and its pervasive corruption. We cannot allow Russia and other foreign interests to continue to hold power over our leaders. We must restore American leadership in a world facing a pandemic. We need to unite around the rule of law and equal justice for all.

We need to unify and work to elect Joe Biden as the next President of the United States.