The Constitutional Posturing on Masks

A lot of bad ideas about coronavirus control are floating around out there unchecked and are hurting the efforts to get the disease under control. Let’s lay them out.

1. President Trump thinks it’s unmanly to wear a mask. But real men (and women) protect their families and communities, including wearing masks where necessary. Trump could snuff out the national hissy fit on masks if he would just start wearing one where social distancing is not possible. He has created a positive but confusing precedent by wearing one briefly on a trip Saturday to Walter Reed Hospital.

2. Eight major retailers are requiring shoppers to wear masks, but most box stores are not. And they are packed. Six feet of distancing is a fiction in their stores. That gives other consumer-facing organizations an excuse to also go to the lowest level of protection.

3. The Washington County Board did some political grandstanding last week when it cited the U.S. Constitution to create a “sanctuary” in opposition to masks. There is no sanctuary. Masks are being required by businesses and organizations all over the country. Under what Article did the supervisors find masks in the Constitution?

Every business and organization in the land is struggling with the right mix of protective measures to allow their operations to survive. In most cases, they don’t need the heavy hand of government to tell them what to do. They know if they are not very safe for their employees and customers, their business will not make it.

Therein lies the major truth about the epidemic and the economy. The economy will not recover until the virus is under control. It’s that simple. Work-arounds won’t work. We all need to do our part to get to fundamental solutions that include testing, tracing, sanitizing, distancing and masks.

As a local example, the Historic West Bend Theatre, which closed the day after its long awaited grand re-opening March 14, has been easing carefully back into operation. Its board has been in deep and long dialogue about what safety measures to adopt, how many people to allow in the building, how to create distance and how strict the mask policy should be.

The managers have learned a lot as they inched forward with small crowds at first. They want people to be able to enjoy music and movies, but the board of directors also want to have a brand as the safest place possible for entertainment.

Three months ago, there was no consensus on whether masks would help. Today, the best medical minds in the country are almost unanimous that masks can help to slow the spread when social distance is not possible.

John Raymond, president of the Medical College of Wisconsin, summed it up this way: “Masking works. We should all be doing it, whether it’s voluntary or mandated. It’s just the right thing to do, if we care about our families and our loved ones and our communities. Everybody should be wearing masks when they are away from home.”

Therein lies the dilemma for government. Washington County has issued useful “guidelines” for re-opening the economy. But the supervisors are posturing on the mask mandate issue. Citing individual rights over community rights, the county itself will not mandate masks. But nor will its “patriotic” resolution prohibit other organizations from doing so. It basically went neutral and punted to other leaders in the county.

On another point, a county leader said he could not recall governments telling people what to wear. Did he ever go deer hunting in required blaze orange, a public safety measure. Or put a required life jacket in a boat? Or wear a required uniform? These are all government “mandates,” based on common sense. They do not rise to the level of being constitutional issues.

If the county leaders want to help the common cause, find more funds to accelerate access to testing and tracing. People I know have given up trying to get an appointment for a county test. Their phones go unanswered.

Masks are only one public health issue where the government might need to intervene. Would the board be similarly neutral on an outbreak of measles, mumps, scarlet fever, polio, Ebola? Would it oppose government quarantines in such cases?

The point here is that no constitutional right is absolute. The best understood limits are those on the individual right to free speech. It is not legal to yell “Fire!” in a theater where there is no fire. It is not legal under the Constitution to slander or libel another person without the facts. (Social media seems to be excepted.)

In cases of public health, community rights often need to trump individual rights. Your child can’t to go school with measles.

This trade-off on rights will come up again when a vaccine for coronavirus is finally brought forward. Some people will refuse to be vaccinated and will declare their right to move around the community in an infected state.

If the local government can’t act in health emergencies, the state will have to step into the vacuum.

If individual Americans can’t collectively agree to step up to the challenge of the epidemic in controlling their own behaviors, there will be governmental mandates.

In the end, too, the marketplace will have as much to say about what kind of prevention measures prevail as the government. Some people will go to unsafe places, but many won’t.

Will you go to a crowded Packer game in the fall? I am a 70-year rabid Packer fan; I won’t.

John Torinus is the chairman of Serigraph Inc. and a former Milwaukee Sentinel business editor who blogs regularly at johntorinus.com.