Yesterday Dallas County judge Clay Jenkins issued a new mask mandate requiring masks to be worn indoors in all government buildings as well as all businesses. Essentially the mask mandate requires people to be in masks if they are indoors anywhere in Dallas County other than their homes. The mandate came as a response to a gubernatorial proclamation by Texas governor Greg Abbott which prevents local government officials from requiring masks to be worn anywhere in Texas. Jenkins’s mask mandate has since drawn a response from Governor Abbott’s office, and it is anticipated that courts will become more involved as these two elected officials continue to be at loggerheads.
But the real issues that are being brought up in Dallas and elsewhere have to do with the role of government in the response to Covid. How far can the government go and what actions can the government take in trying to slow the spread of Covid? And what checks and balances will prevent government overreach? We will address these issues using the recent Dallas mandate as our case sample.
The United States Constitution was written shortly after the end of the American Revolution. Great Britain surrendered in 1781, and British troops were mostly out of America by the middle of 1782. At this point the United States was governed by the Articles of Confederation, which was ineffective and was ultimately replaced by the current Constitution, which was written in 1787 and formally took effect March 1, 1789. Because the Constitution was written and ratified on the heels of rebellion from an overbearing government, the authors were careful to provide limits on the authority of government in an effort to guarantee liberty for all Americans. (I know that the Constitution has its flaws and that the way women and Black people both free and enslaved were treated is abhorrent, but those issues are much too large, complex, and nuanced to be addressed here. This article is limited to the constitutional limits on government action and nothing else.)
The first ten amendments to the Constitution, known as the Bill of Rights, provided further enumerated powers and limitations on the government. The text of these amendments provides explicit rights, and the context and combination of the texts provides implicit rights, known as the penumbra, which are essentially rights that can be derived by the implications of the others. In other words, when looking at the text as a whole, certain logical conclusions can be made which result in additional rights being identified. The most sacred of this implicit rights is the right to privacy.
Because the right to privacy is part of the penumbra, it is not explicitly written down in black and white. However, reading the body of the Constitution along with certain amendments (specifically the First, Third, Fourth, Fifth, Sixth, and Fourteenth Amendments) guarantee a right to privacy. The right itself is generally held to mean four things:
- The right to avoid unwarranted publicity;
- The right to avoid unwarranted appropriation of one’s personality and image;
- The right to avoid publication of one’s private affairs without legitimate public concern; and
- The right to avoid wrongful intrusion into one’s private activities.
Now, it should be stated clearly that the constitutional right to privacy applies to actions taken by state actors, meaning government entities and officials. In other words, if a private person publishes your Social Security Number, they have likely committed a crime, but they have not violated your constitutional right to privacy because they are not a state actor. However, if the local police department publishes your Social Security Number, then they have likely committed a crime and violated your civil rights because a police department is a government entity.
So, with the brief history lesson in mind, let’s look at applying this.
Government Space v. Private Space
The government has a lot of control over what happens in government-owned space. This could be a civic building, military base, public park, public library, or even within the confines of a government vehicle. If a civilian enters government space, they can be subject to reasonable restrictions on their actions and speech. Most of the time these are limited to restrictions on decorum. For instance, having a dress code in a courtroom or a no noise policy at a hearing.
The right of the government to control those sorts of things ends pretty much right where private property begins. Business owners, homeowners, and other private properties can normally do just about whatever they want. They can have a strict dress code, like at a steakhouse or a nude beach where clothing isn’t allowed. Heck, the Trail Dust Steakhouse here in Dallas used to have a no necktie dress code, and if you walked in wearing a necktie, they would cut it off with scissors and display it on the wall. They can make you be quiet, they can make you be loud, they can make you do pretty much whatever they want to because they own the property and if you don’t like it, you can go somewhere else.
That’s the most important distinction between government space and private space. Government theoretically has a monopoly on government services. You can’t go to a private company to register to vote or report a crime or pay your property taxes or file a lawsuit or apply for a building permit. Those are government functions, and because they are monopolized, the restrictions on how people behave in government buildings has to be as unobtrusive as possible.
But private property is different. If you don’t like the dress code at The Capitol Grille, you can always go to McDonald’s where the only dress code is don’t have your privates hanging out of your clothes. If you don’t like the store policy at Lowe’s, go to Home Depot or Ace Hardware. If you don’t like the return policy at Target, go to Walmart. Or be a normal human and order it on Amazon. The point is that private property doesn’t come with a monopoly the way government property does.
That’s a good thing, by the way. Having a variety of options for things like clothes, food, entertainment, and raw materials is a great thing because it means the businesses that sell those things are motivated by the free market to sell the highest quality product for the most competitive price. And businesses can set whatever store policies they want because the customers are free to go anywhere else for the same stuff. I know for a fact that if I don’t want to deal with the disorganized chaos of Walmart I can go to Target and find the same crap. And yeah, I might pay an extra $1.25 for the same item, but at least I won’t have to deal with Walmart.
What About the Masks?
To finally bring this back to masks, here’s what I mean: Judge Jenkins’s mask mandate says that masks must be worn indoors in all government buildings and all commercial buildings in Dallas, and he’s wrong to do that.
Before you get all up in arms, I want to make it clear I’m not talking about the general idea of wearing masks. I wear masks anywhere that I am asked to, and I believe that masks help prevent the spread of Covid. I’m also vaccinated. I believe Covid is serious and should be taken seriously. But it is not within the government’s authority to mandate masks on private property.
I have been in many businesses that still have the same mask requirements they’ve had for over a year now. And I obey them. If I am going to patronize a business and that business wants me to wear a mask, I will do it. If I didn’t want to wear a mask I would go somewhere else. The business has every right to demand it, and I have every right to shop somewhere else if I don’t want to wear the mask. Same thing with private homes. If someone wants me to wear a mask in their home, I’ll do it with a smile, but if I didn’t want to wear a mask, I just wouldn’t go visit that person. That’s the beauty of the system. We have choices.
If the government wants to force people to wear masks in government buildings, I have no problem with that. It seems reasonable, it’s not physically harmful, it’s not prohibitively expensive, and the “risk” of wearing a mask (if such a risk exists) is far outweighed by the risk of not wearing a mask, which is an increased possibility of catching Covid. If courthouses, schools, or other civic buildings want to say masks are required, then they are free to do so, and I think it’s constitutionally appropriate because of the reasonableness of the mandate.
But the government cannot and should not force private citizens to wear masks in private businesses. As a practical matter, what happens if someone doesn’t wear a mask indoors at a private business? Do you think the storeowner will call the police? Maybe, but probably only if the store has its own mask mandate and has asked the offending customer to put a mask on or leave. More likely the non-mask-wearing individual will either be left alone or ratted out by some unpleasant middle aged person who still has an Gore/Lieberman 2000 bumper sticker on their Prius.
And what if the storeowner themselves are the ones not wearing masks? Is some disgruntled, sweater-wearing cat lady going to call the police on them and then stick around to watch the police do something about it? Would the police even do anything about it? I mean, there are rapes and murders and domestic violence and larcenies to be preventing/solving, but then someone gets a call that the clerk at a local pet store isn’t wearing a mask?
If the government has this authority, why not just mandate masks during flu season? Or at elementary schools where diseases seem to be born? Or in stores that sell nuts, because a lot of people out there have peanut and tree nut allergies? Or in areas that have been recently painted, because sometimes paint gives people headaches? Or maybe at nurseries because some people have pollen allergies?
I’m not being glib. I know Covid is more of a concern than peanut allergies, but you get the idea. Covid isn’t abnormally fatal, but it is highly contagious, it can create a dire situation in folks with comorbidities like cancer, and it takes up hospital beds that could be better used helping people with more serious conditions. It overworks healthcare workers, and worst of all we still don’t seem to know all that much about it. But even still, because it’s rarely lethal and because so many people are vaccinated and because adults can make their own decisions on where to spend their time and money and because the vaccine really helps lessen the impact of getting Covid and because private businesses should be able to control what goes on in their stores and because disgruntled shoppers can choose to shop elsewhere if they don’t like the mandate and most importantly because the Constitution doesn’t allow it, the government should not and cannot force private people to wear masks in private places.
If the government can mandate what’s worn at a private business, is it that much of a logical leap to thing that one day the government might try to control what goes on in your own home? People were all up in arms comparing Donald Trump to Big Brother from 1984, but no one has a problem when it’s someone like Clay Jenkins? Why can’t they both be awful? Can’t you see it now, though? Wear a mask in any home where there are unvaccinated adults, older adults, adults with comorbidities, or children under 12. Wear a mask any time you are cooking for others in your home. Don’t walk around shirtless in your own home unless all of the blinds are down and curtains drawn. Don’t swear in front of children in your own home. Don’t talk about certain subjects if the people in your home are outside a certain age range. I’m not saying that’s precisely where we’re headed if the Dallas mask mandate is upheld, but I am saying that it’s not a far logical leap.
Thomas Jefferson once said that “the natural process of things is for liberty to yield and for government to gain ground.” Jefferson knew the slippery slope to fascism that exists when the government has too much authority. I’m not a big Ronald Reagan guy, but Reagan once said that “the nine most terrifying words in the English language are ‘I’m from the government and I’m here to help.'” Reagan had Jefferson’s thought in mind when he said that, and I can get on board with that.
We must have boundaries. We must have some sort of civil rights forcefield that protects private entities from government overreach. If we yield now, that fourth right to privacy about being free from wrongful intrusion into private activities will begin to crumble. That’s the most important right there is. That right protects so many things. It protects whatever two (or more) consenting adults do in the privacy of their own homes. It protects your right to keep dissenting or protesting materials in your home. It protects a business’s right to refuse service to anyone for any reason, including, I might add, refusing to wear masks. It protects you from having the government put microphones and cameras in private establishments and homes. In other words, it allows you to be who you are without the government getting involved.
The Constitution provides safeguards against government intrusion into private matters. Dallas judge Clay Jenkins has issued a mask mandate that would require private citizens to wear masks in all private businesses in Dallas. Judge Jenkins is not allowed to do that, he has violated the First, Fifth, and Fourteenth Amendments in so doing, and he should rescind the mandate as it related to private businesses as soon as possible. People should wear masks in indoor spaces, especially when the private business makes it part of their business policy. But no business should ever be forced to have a dress code.
I take Covid seriously and I want to do my part to stop the spread and get back to normal as soon as possible. But I will not sacrifice my rights as a citizen of the United States to conduct private business in private. More important than a virus is personal liberty. As long as I am not infringing on someone else’s rights, and as long as I am not committing a crime against anyone, I should not be forced by the government to wear a mask anywhere other than on government property. If stores want to create their own mandates, I will gladly follow them. But I will not submit to government overreach and I will not be told how to behave on private property by the government.
Y’all stay safe out there.