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For mask mandates and other issues, screaming ‘unconstitutional’ is rarely accurate

SHARE For mask mandates and other issues, screaming ‘unconstitutional’ is rarely accurate

Women wearing face masks to help protect against the coronavirus walk by an advertising board displaying an American flag and Statue of Liberty on a street in Beijing on Thursday, Aug. 6, 2020.

Andy Wong, Associated Press

The Constitution has a unique place in American society. Public officials and military officers in the United States swear a solemn oath not to obey a king, nor their allegiance to a president, but to protect the Constitution itself. It is the ultimate authority for our government, and many Americans rightfully treat it with great reverence.

It protects our most basic liberties: freedom of religion, freedom of speech and the freedom of the press. It helps to protect us from abuse of power by ensuring a system of checks and balances and separation of powers. It has been a model for other nations throughout the world.

All too often, people on both the right and the left attack a policy as unconstitutional because they don’t like it, rather than because the Constitution has any relevance to the question at all. Whether a law or policy is constitutional is entirely separate from the question of whether that particular law or policy is a good idea. We should stop confusing these issues.

The mask mandates that are protecting Utahns from the COVID-19 pandemic have been attacked by some as unconstitutional overreach from our governor. These mask mandates are a reasonable exercise of the state’s police power, and the case law on this issue has been settled for more than a century.

In 1902, in the case Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, the Supreme Court upheld a full quarantine of New Orleans that prevented over 400 people from entering the city (a much more aggressive step than any mask mandate) as constitutional. In 1905, the Supreme Court also upheld compulsory vaccination laws used to fight a smallpox outbreak as constitutional in Jacobson v. Massachusetts. Forcing people to wear a cloth mask in public places to prevent the spread of disease is a far less aggressive step, and it is a step that has already had a significant impact in slowing the spread of the coronavirus.

Legally speaking, there is no question that the governor has the authority to use the state’s police power to enforce public health orders. People may disagree with the policy, or argue the merits of this decision, but it is a fact that the governor has the legal power to do this. If citizens feel that the governor made the wrong decision, then they can make different choices at the ballot box when they choose who will govern them.

At the end of the day, it is the governor’s responsibility to make that choice. I personally am grateful that Gov. Herbert took action to protect Utah by issuing a mask mandate for our K-12 public schools and for allowing Salt Lake County to adopt a mask mandate.

Let’s stop attacking every idea we disagree with as unconstitutional. The Constitution is an inspired framework for our government, not a club to bludgeon your political enemies with. 

Ryan Boudwin is the United Utah Party nominee for State House District 42, which includes parts of Herriman, South Jordan and West Jordan. He is a Fulbright alumni with a master’s degree in international relations. He lives with his wife, Annika, and three sons in Daybreak.