OPINION: CORNELL W. CLAYTON — Masks and rights: Who trumps whom?
Cornell W. Clayton GUEST OPINION
“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.
When the Board of Panhandle Health District met last week to consider a facemask mandate, protestors carried signs reading “I will not comply,” “Freedom is the Cure” and “We have rights!”
Similar sentiments have been expressed by right-wing legislators and Idaho Freedom Foundation’s President Wayne Hoffman, who posted on Facebook people “have the absolute right” to choose whether to wear a mask.
They echo Kentucky Congressman Thomas Massie, who 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 were quick to remind Massie that George Washington in fact required the Continental Army to be vaccinated against Smallpox. But Massie’s tweet, Hoffman’s post and the PHD protesters 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 over rights.
First, it is not true that rights — even constitutionally protected ones — serve as unqualified trumps against the government. No one has a right to yell “fire” in a crowded theater, even though we have a right to free speech. The Supreme Court has said repeatedly that rights arn’t absolute, especially during a crisis, and it 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 — that rights are trumps against any imposition on our freedom no matter how inconsequential — come from?
As much as anyone, that idea owes its existence to a former graduate school mentor of mine from Oxford, 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 modern rights revolution. 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’s at the time was conservative Harvard legal theorist Mary Ann Glendon. In her book, “Rights Talk,” Glendon took issue with liberals whom she said were taking 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 neglect the critical relationship that rights have to moral obligations. Rights are not free-standing claims, but the byproduct of moral duties that we have to treat others with respect. In other words, rights don’t create obligations; 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, it makes little sense to discuss the “rights” of students, or children, or patients, when we are actually concerned about the moral and ethical duties they are owed by their teachers, parents or doctors.
In obsessing about rights, we obscure the moral duty we have to do what’s right. There may be a legal right to bring assault rifles to peaceful political rallies, for instance, but is that 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.
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Cornell 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 C.O. Johnson Distinguished Professor of Government. He is a 20-year resident of Coeur d’Alene.