Face Masks and the Constitution

By Dick Sciaroni

In a recent “open letter” to the Nevada City Council published in The Union, Susan Frisbie quotes the late Justice Scalia to argue against a face mask mandate.  I must believe that Ms. Frisbee has had no advanced legal training. If she does, then she slept through her classes. She mistakenly ignores long-recognized jurisprudence followed by American courts since their inception: that the law declared by SCOTUS or other appellate courts applies to the issues raised in that particular case.  Printz v. U.S. dealt with an interim provision of the Brady Bill requiring law enforcement officers in Montana and Arizona to conduct background checks when processing gun permit applications. That case, and Justice Scalia’s opinion in that case, had and continues to have nothing to do with the public health issues surrounding the Covid19 pandemic that are the subject of Ms. Frisbie’s letter.

Likewise, Ms. Frisbie’s claim that it would be unconstitutional for the California Legislature to mandate face masks is simply her (apparently) uneducated opinion.  She may think that such a law would be “repugnant to the Constitution”, but as a California appellate court once noted, “simply calling a goose a duck cannot make it quack.”  That is, Ms. Frisbee’s claim that a face mask mandate would be unconstitutional does not make it so.  I daresay that the Legislature can, should it choose, enact a face mask mandate that would survive Constitutional scrutiny.

Ms. Frisbie’s argument invoking Civil Code §51(b) is also misplaced.  That statute speaks to discrimination based on enumerated characteristics.  It cannot be read in any way to bar legislative action mandating face masks in public.

Anyone paying even a minimum of attention to reports of rising (indeed skyrocketing) Covid19 cases across our country, in contrast to countries whose strict mandates (including face masks) has led to a “flattening of the curve”, can draw only one conclusion.  Those countries, states, counties and cities that fail to follow the advice of medical professionals, and instead rely on the whims and wishes of politicians whose only apparent goal is to maintain their grip on the reins of power,  are in for a long and grim battle against a virus that does not care whether its victim is Republican or Democrat, liberal or conservative or whatever.

Ms. Frisbie’s reliance on former Sheriff Mack is wrong-headed.  Mack is entitled to hold whatever views on the Constitution he wishes, but that does not make him or them right, much less the arbiter of the law. Moreover, Mack is hardy mainstream.  He is the founder of the Constitutional Sheriffs and Peace Officers Association, an organization that encourages its members to refuse to enforce laws they personally believe are unconstitutional. In other words, Mack believes that sheriffs, not the courts, should decide what laws are and are not to be enforced, a view that does not accord with American jurisprudence. It is the courts, not sheriffs, who decide what is and is not Constitutional and what laws should be enforced.

Meanwhile, Ms. Frisbie’s notion, that the rights of Americans are “God-given . . . not . . . government-given” rights, ignores the historical record. The Declaration of Independence does not speak of a God; Jefferson chose the word “Creator” and successfully resisted attempts to equate that Creator with a Christian God.   Frisbie’s claim also ignores Constitutional history. The Constitution does not speak of a God at all.  Simply put, the rights we Americans have come not from a God but from the Constitution, the fundamental document that established the government by which we govern ourselves.  If any proof is required on that point, simply note where one goes when one seeks to enforce rights under the Constitution: is it to a church or to a court house?  I daresay that pursuit of one’s Constitutional rights through a church would be an exercise in frivolity.

Ms. Frisbie’s wish to be free of a facemask “agenda” ignores the unequivocal opinions of medical professionals that use of face masks in conjunction with social distancing would “flatten the curve” in short order.  One need only look to a country like South Korea, where the populace and the government heeded the recommendations of medical professionals, for evidence that face masks work.  Looking at America only teaches us that selfish cries like” You can’t make me do what I don’t want to do” will only lead to more Covid19 cases, more deaths, and more suffering.  A face mask is uncomfortable and a bother.  But better uncomfortable and bothered than gasping for air in a hospital bed.



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