Do you have an absolute right NOT to wear a mask when ordered?

Of masks and rights

Author: Cornell W. Clayton, Special to The Times

Posted on August 03, 2020


image of woman getting hair services while wearing a mask“My body, my choice!”

A refrain from the abortion-rights movement is now the battle cry of those insisting there’s a right against wearing masks or being vaccinated during a pandemic.

Protesters met Gov. Jay Inslee’s face-mask mandate with signs reading, “No mask, my choice!,” “Freedom is the Cure!,” “We have rights!”

A Kentucky Congressman, Thomas Massie, recently tweeted: “There is no authority in the Constitution that authorizes the government to stick a needle in you against your will, force you to wear a face mask, or track your daily movements.”

Tweeters reminded Massie that George Washington in fact required the Continental Army to be vaccinated against smallpox. But Massie’s tweet and the Inslee protests reflect a world view held by many Americans. We have our rights! 

And those rights trump all other concerns, even something as trivially burdensome as wearing a face covering in public when wearing it literally saves the lives of others. Like everything else in America, mask wearing has become a debate about rights.

First, it is not true that rights — even constitutionally protected ones — serve as unqualified trumps against the government. The Supreme Court has said repeatedly that rights are not absolute, especially during a crisis, and has developed various legal tests for when the government may infringe upon particular individual liberties.

In Jacobson v. Massachusetts (1905), the court upheld a compulsory smallpox vaccination law against the claim it violated “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Such a right, the court said, must give way to “the power of a local community to protect itself against an epidemic threatening the safety of all.”

Putting aside the legal questions, where does this popular talk about rights — this view of rights as trumps against any imposition on our freedom no matter how inconsequential — come from?  

link to subscribe to the Seattle Times

As much as anyone, that idea owes its existence to a former graduate school professor of mine, Ronald Dworkin, who 40 years ago wrote the influential book “Taking Rights Seriously.”

As a legal philosopher, Dworkin was the godfather of late-20th century legal liberalism and the ascendancy of the politics of rights. He insisted that rights were not legal fictions or mysterious gifts from an unseen creator, they were individual moral claims grounded in reason itself. As moral claims, rights could not be balanced off against competing community goals such as expediency, efficiency or the majority’s preferences. The only thing that could trump individual rights were other individual rights. 

Writing when he did, Dworkin’s ideas offered a powerful tool to the modern civil rights movement, women’s rights and LGBTQ movements, and other liberal efforts to advance individual freedom and dignity. Rights could be asserted to legally trump arbitrary laws, often based on outdated traditions and prejudices. 

A prominent critic of Dworkin at the time was conservative legal theorist Mary Ann Glendon. In her book, “Rights Talk,” Glendon took issue with Dworkin and liberals whom she said took rights too seriously. By fetishizing rights, we cripple the community’s ability to pursue the common good.

Glendon’s arguments were complex, but a central concern was that by weaponizing individual rights claims we neglected the critical relationship rights have to moral obligations. Rights are not free-standing claims but the byproduct of moral duties we have to treat others with respect. In other words, rights don’t create obligations, our moral obligations give rise to individual rights.  

Dworkin was a brilliant legal philosopher, and his thinking profoundly influenced me. But over the years, I have come to appreciate Glendon’s insight. In particular, I now understand how “rights talk” warps American discussions about even our most basic relationships.

As Glendon warned, many relationships are not properly understood by talking about rights. It makes little sense, for instance, to focus on the “rights” of students, or children, or patients, when we should really be concerned with understanding what moral and ethical duties they are owed by their teachers, parents or doctors.

Similarly, why do we focus so much on the “rights” of protesters or criminals in the recent demonstrations for racial equality, when we should really be more concerned about the obligation police have to behave ethically and professionally, or the duty we all have to act nonviolently and respect the property of others?

In obsessing about our rights, we obscure moral duties we have to do what’s right. There may be a legal right to bring assault rifles to peaceful political rallies, but is it the right thing to do in a democracy? 

Even if there were a legal right to refuse masks during a pandemic, why would we not bear that trivial inconvenience in order to protect others? 

Ironically, conservatives have come to embrace the very rights talk for which they once criticized liberals.  Now we are all obsessed with guarding against the slightest impingement on our liberty, regardless of the cost to the common good.

Cornell W. Clayton is the director of the Thomas S. Foley Institute for Public Policy and Public Service at Washington State University, where he also serves as the Thomas S. Foley Distinguished Professor of Government.



Northwest Voices
Letters and emails – Seattle Times 12/11/20
A doctor’s plea     

To my beloved Seattle community,

I am your doctor, and I am scared.  I go to work each day, at clinic and at the Seattle hospital, and I care for you and your loved ones.  I watch as our COVID-19 case numbers climb higher, as my colleagues fall ill and as our hospital staff break our hearts caring for you.  You come in with COVID pneumonia, and you get sicker, and we don our gowns and N-95 respirators to reach you.  Every time I enter your hospital room, I know that I, too, face an increased risk of falling ill.

I feel powerless to help you, because despite the best treatments I can offer you, what we really need is prevention of spread of the virus.  I wish I could go back in time and stop that germ from reaching you.  If you had only worn your mask, and washed your hands and stayed home, maybe we wouldn’t be here now.

There is only so much that I can do for you, and I want us all to stay healthy.  To those who are still well—please, please wear your masks.  Please stay home and ride this out.

- Hilary Iskin, M.D., Seattle


More Mental Health Articles
Sexual Bias Articles
Race Relations Articles
How Drugs and Alcohol Affect the Brain and Body
WA. Counselor Directory: find a therapist near you


How helpful is this web page to you?
(and how can we can improve this page for you?)

not helpful
very helpful

Other Articles