It’s probably safe to assume that a larger percentage of Americans are fed up with mask mandates.  Where, you may ask, do state and local officials get the authority to force me to wear a mask?

Over the past year and a half, state governments have greatly relied on a 116-year-old Supreme Court decision to justify mask mandates.  That decision is Jacobson v. Massachusetts.

Jacobson was a reverend in Cambridge, Massachusetts.  Around 1900, the Cambridge board of health required all residents to get vaccinated against smallpox or pay a $5 fine.  The board of health was acting pursuant to authority expressly given to it by the state legislature.  At that time, the legislature enacted a plainly-worded statute which allowed:

the board of health of a city or town if, in its opinion, it is necessary for the public health and safety shall require and enforce the vaccination and revaccination of all inhabitants thereof and shall provide them with the means of free vaccination.  Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.

Jacobson, representing himself at trial, challenged the constitutionality of both the statute and the board’s requirement.  He lost at trial and again on appeal to the Massachusetts Supreme Judicial Court.  His case eventually made it to the U.S. Supreme Court where Jacobson’s arguments were again rejected. 

The Court’s decision, written by Justice Harlan, is one of the most favorable rulings ever made for expanding state governments’ police powers.

However, there are significant distinctions that can be made between the decision in Jacobson and the current imposition of masks.

Legislative Power vs. Executive Power

Almost every page of the Jacobson decision gives deference to the state legislatures’ power to make laws regulating health and public safety.  Here are just a few highlights:

Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? 

(Perhaps Justice Harlan is unaware of the court’s power of judicial review established in Marbury v. Madison.)

The legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

No court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps or possibly—not the best either for children or adults.

Mask mandates, however, are mentioned nowhere in the statutory laws.  No legislature that I’m aware of has enacted laws concerning the wearing of masks.  (Though this may change in coming  years.)  Instead these mandates are being imposed solely by the executive branch using existing statutory laws that, at best, are being stretched—perhaps to the breaking point.

A good example of this is the statewide school mask mandate imposed by the Massachusetts education department and education board.  Unlike the vaccine mandate challenged in Jacobson, there is no clear statutory authority authorizing education officials to impose masks.  They are basing their authority on a single sentence in M.G.L. c. 69, section 1B which authorizes the education board to ensure that students attend school in a structurally safe environment, i.e., that all school buildings are up to code.

The board shall establish minimum standards for all public early childhood, elementary, secondary and vocational-technical school buildings, subject to the provisions of the state building code.  The board shall establish standards to ensure that every student shall attend classes in a safe environment.  (Emphasis added.)

No honest person could read this paragraph and say that it permits the board of education to mandate masks or make any other form of health policies for students.

The excessive deference given to state legislatures in the Jacobson decision should not now be extended to the executive agencies of each state.

$5 Fine vs. Second-Class Citizenship

As stated above, the fine at issue in Jacobson was a mere $5.  This would be about $150 in today’s currency.  According to the attorneys who argued Jacobson’s case before the Supreme Court, the $5 fine was the most extreme penalty ever imposed by a state for failure to comply with a vaccine mandate.  After showing that three quarters of the states had no penalty whatsoever for failing to submit to vaccination and that the remaining states had, at best, a nominal penalty for refusal, Jacobson’s attorneys noted: “None of these cases are as extreme as the decision in the case at bar.”

If a $5 fine is extreme, how should we define total exclusion from school, work, religious worship, or in-person commerce?  Those are the consequences of violating almost every state-imposed mask mandates.

The Court in Jacobson reserves the right for itself to strike down a state’s public health policy when the policy “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 

The Court notes,

The mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

It is arguable that the policies and penalties for failure to wear a mask (e.g., exclusion from school, work, religion, and commerce) rise to the level of a constitutional violation that may rightfully be addressed by the courts.

Smallpox vs. COVID

The Court in Jacobson went to great lengths to detail the long, successful history of smallpox vaccination in the western world.  In one of the lengthiest footnotes in Supreme Court history, Justice Harlan outlines the use of the smallpox vaccine beginning in 1808, nearly 100 years prior to the Court’s decision.

No such historical argument can be made regarding mask mandates.  And, unlike the smallpox vaccine, the efficacy of mask use in slowing the spread of COVID is highly questionable.

Here are a few key points from a recent study conducted by researchers from the University of Louisville:

– Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.

– Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.

– Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.

No such uncertainty existed concerning smallpox vaccines at the time of Jacobson.  The vaccine mandate at issue in that case bears no resemblance to the mask policies at issue now.