Mask Wearing—Theater or Obligation?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Robert Brescia
July 18, 2020

To wear or not to wear a mask—that’s today’s question. Before you answer, consider the legal, political and ethical bases for subscribing to either the Pro-Maskers or the Anti-Maskers clubs. After all, mask-wearing may have even surpassed baseball as our national pastime!

I’ve been able to ascertain the following findings and conclusion from my own research on what medical leaders are saying:

Masks are not 100% preventive—they are a primary means of risk reduction. No other preventive measures that you can name, such as wiping doorknobs, grocery bags or cleaning you phone and/or keys by ultraviolet lights rays comes close to wearing a mask.
Some masks are more efficient than others—but all are way better than nothing. If you don’t wear a mask correctly though, it will not have the desired preventive effect. For example, it does no good if it is slung around your neck while you’re shopping so that you can breathe more easily.
If you and the person you are interacting with are both wearing masks, the risk of transmission goes way down.
The best mask is the one that you can wear comfortably but with a snug fit.
There’s a good possibility that we will be wearing masks for the next couple of years.

The Legal (and Public Administration) Lens

I’m confident there is no constitutional or federal basis for any proposed legislation that forces citizens to wear masks in places that it does not control. It can, however, compel mask-wearing at ports of entry, federal buildings and operations, airspace, etc. The states are where the action is on this important issue. States have the primary authority to do all kinds of things to ensure public safety in times of pandemics and emergencies, including mandating mask-wearing and quarantines.

Let’s apply this fact to Texas. Governor Greg Abbott already has the power to take every single action he has taken so far to combat this epidemic. Why then should he request that the Texas legislature convene in special session—to do what, exactly? To his credit, Abbott wrote the mask mandate in such a way that really gives Texas localities a great deal of flexibility in enforcement. Agree or disagree, I believe this governor has led the state exceptionally well during this crisis, providing a model for other states to follow.

The Political Lens

It seems to me that wearing a mask has become a badge of honor for a lot of political liberals and a lightning rod of discontent among many political conservatives. There has been some party line crossing on the mask issue, however, with Republican mask-wearing individuals and Democrat mask resistors each having their own reasons. Staunch libertarians remain just that; the mask for them represents just another means by which all levels of government can encroach on their personal liberties.

The Ethical Lens

Ah, here is where things can get dicey! Ethics is basically the study of human behavior with respect to our intrinsic nature as people. It deals with morality and values in our society—what is right and what is wrong. There are always religious overtones that run through the field of ethics and they are front and center with respect to the mask-wearing issue. Many Christians believe that it is our duty to wear a mask in public because of our moral obligation to preserve life. That includes our own lives and the lives of others because life is God-given and precious.

Medical ethics comes into play here as well. The fundamental principle of medical ethics is: “Primum non nocere,” (“First, do no harm.”) There exists in medical ethics an abundance of writing citing the need for being cautious and careful with respect to placing others in harm’s way.

Conclusion

The legal perspective of mask-wearing is straightforward. If, however, a state was to engage in an action, policy or law that conflicts with the federal level, then the federal level will displace the state level when the two come into conflict. That is the power of the supremacy clause of the U.S. Constitution.

The political arguments are generally boring and useless, as is most discourse borne from ideology. If you take actions based on ideology, then please re-read this article, paying special attention to the legal and ethical analyses. Politics or party affiliation must not be your guidepost in this way—you must make the decision for you and your family.

The ethical underpinnings of the mask-wearing issue are clear: if you personally believe that masks lessen the possibility of you giving the virus to others, or you getting the virus from others, then your moral obligation is to wear them. You may recall the time-honored saying of, “Your rights end where my rights begin.” The origin of that phrase is former Supreme Court Justice Oliver Wendell Holmes, who stated, “The right to swing my fist ends where the other man’s nose begins.” In like fashion, my right to not wear a mask ends where your right to be protected begins.

Author: Dr. Robert Brescia is a senior executive with service to the nation in military, business, and education. He respects the wisdom of generations, promotes learning, and teaches ethics to university students. Bob’s latest book is Destination Greatness – Creating a New Americanism. Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. Contact him at [email protected].

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7 Responses to Mask Wearing—Theater or Obligation?

Robert Brescia Reply

July 24, 2020 at 7:46 am

Me too, Jane!
Greg Stuessel Reply

July 21, 2020 at 12:37 am

The supremacy clause is one of the most misquoted, misunderstood and calculatedly falsified clauses of our Constitution.

The Supremacy Clause can be found in Article VI, clause 2 of the US Constitution and states:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

This clause has long been pointed to as the “trump card” of the federal government over the states. In fact, if you ask many people about which laws take precedent, the states or the federal governments, you will usually be met with the naive statement “Federal law trumps state law”.

But, it doesn’t take that much digging in our nation’s history to find this understanding patently false. First, one has to understand how the separate spheres of power function in our dual federalism system. Each government (both state and federal) Hamilton assured the New York Ratification Convention, was supreme in its sphere, stressing that:

“this balance between the National and State governments . . . is of the utmost importance. .. . It forms a double security to the people.” ~ [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2, Pg. 257]

The Tenth Amendment and the supremacy clause are nicely geared to reflect this equilibrium – the former to preserve to the States powers not delegated to the United States, the latter to make delegated powers supreme.

The anti-federalist’s saw this clause during the debates and pointed to it with alarm. Why, this clause will enslave the states was the rallying cry and one reason that so many opposed ratification of our present constitution. Only through great pains did the federalists finally explain the clause in detail that finally swayed enough states to ratify.

In Federalist No. 33, Alexander Hamilton wrote that laws

”which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities” of the States “will be merely acts of usurpation,” not “the supreme law of the land.”

In the Virginia Ratifying Convention, John Marshall assured the Ratifiers that the supremacy clause did not extend to all cases, that a federal

“law not warranted by any of the enumerated powers” would constitute “an infringement of the Constitution.” [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3, Pg. 553]

William Davie, discussing the supremacy clause in North Carolina, said a federal law

“can be supreme only in cases consistent with the powers specially granted, and not in usurpations.” [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4, Pg. 182]

James Iredell explained that the supremacy clause meant only that

”when Congress passes a law consistent with the Constitution, it is to be binding on the people.” and he emphasized that “the question, then, under this clause, will always be whether Congress has exceeded its authority.” [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4, Pg. 179]

And Chief Justice McKean told the Pennsylvania Ratification Convention that the meaning of the supremacy clause

“is simply this, that the Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws thus made in pursuance of the Constitution, shall be binding upon the States.” [McMaster, J. B., and Stone, F., Pennsylvania and the Federal Constitution 1787-1788 (Lancaster, Pa., Inquirer Printing, 1888). Page 103.]

The Federal Government can issue whatever mandate they want but, the states legally have no obligation to follow it unless one uses a twisted version of the Constitution through the Supreme Court. But, at that point, the Constitution as Jefferson put it, has become a thing of wax.
JoJo Reply

July 20, 2020 at 6:51 pm

So many things wrong with this political commentary. But most problematic is that you put the burden of being “ethical” and preventing the spread of disease only on those that wear masks. You claim that the governor of Texas “has led the state exceptionally well during this crisis, providing a model for other states to follow.” When all data demonstrates that the governor’s strategy is a costly, shameful, and preventable failure. And no, there are not “always religious overtones that run through the field of ethics”. You claim that politics should not be a guidepost, but yet you end your meandering rant with a highly political quote…speaking of which, how do you reconcile the fact that a person doesn’t actually have the right to swing their fists (in public)? Nor does that right stop at someone else’s nose? I do not understand how it is possible that you are an educator (as you assert) with such flawed reasoning. Most troubling is that you do not know what politics is.
Felicia Reply

July 20, 2020 at 3:17 pm

I have not ever read such a well written explanation of this current issue. This issues crosses over many lens and I am thankful we still have well thought insights. Thank you
Ted Tuminowski Reply

July 20, 2020 at 12:12 pm

Bob
Great stuff, your articles are always right on! I like that they are short, to the point, informative and leave the reader with more information on a subject that allows them to make their personal decision.
Love your stuff Bob, keep it up.
Chris Stanley Reply

July 20, 2020 at 6:06 am

Thanks for putting this all down!
Your perspectives are always insightful!
Jane Shannon Rose Reply

July 19, 2020 at 5:33 pm

Interesting article aimed at convincing people to wear a mask as a duty to oneself and society.

I wore one at WalMart but it pushed on my glasses so I had to take them off. Also it made it harder for me to breathe. I finished shopping as quickly as possible and got outside, slid down the mask and got some good deep breaths.

I hope conclusion number 5 proves to be wrong!

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