My friend and colleague Josh Blackman writes, “Would a constitutional challenge to a mask-mandate be viable? Under Jacobson v. Massachusetts the answer is no. Is Jacobson consistent with a century of Due Process Clause jurisprudence? No. Several judges have already begun to cast doubt on that precedent.” (FYI: here is the Wikipedia entry for the Jacobsen case.) For his part, Professor David Super explains why the First and Ninth Amendments in the original Bill of Rights might protect one’s right to refuse to wear a mask, even in a pandemic. Alas, my dear law professor colleagues are, as usual, “overthinking” this question. The central issue here is, Can the government require you to wear a mask in public? Outside of federal enclaves like Washington, D.C., the federal government simply does not have the power to compel to people to wear masks under any reasonable reading of the Commerce Clause (the source of most of the Congress’s modern-day powers). State governments, however, have a general police power to protect the health, safety, and morals of its residents. End of discussion, right?
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