The Ph.D. Program in History

at the Graduate Center of the City University of New York


Professor Helena Rosenblatt’s op-ed: “No, there isn’t a constitutional right to not wear masks”

Congratulations to Professor Helena Rosenblatt on her op-ed piece in today’s Washington Post!

It’s here – – and below:

No, there isn’t a constitutional right to not wear masks

To argue otherwise misconstrues the Constitution and the values undergirding it


As the country faces the gravest public health crisis in its history, with an estimated 1,000 people dying every day, some Americans are refusing to wear face masks despite overwhelming evidence that it saves lives. Some refuse simply because the masks are uncomfortable. Others believe wearing them is “shameful, not cool, a sign of weakness, and a stigma.”

Many say they have a “constitutional right” not to wear masks and mask mandates are forms of totalitarian rule. Anthony Sabatini, a Republican member of the Florida Legislature, has even used the term “Mask-Nazi” to protest mandates.

Do individuals have a constitutional right not to wear masks? They do not.

Are such mandates undermining American democratic government? They are not.

It should be obvious that all of this is about more than masks. Fundamentally, it is about the very meaning and viability of liberal democracy. The references to totalitarianism reflect a profound misunderstanding of the American Constitution and the values that undergird it. The values of liberal democracy have always been about individual rights and duties. Yes, the Constitution protects individual rights and limited government, but the core pillar of our government is the need to defend the lives of citizens against enemies. This includes covid-19.

Many trace the foundations of our liberal democracy back to John Locke, the 17th century physician, natural law philosopher and social contract theorist. In his “Second Treatise of Government,” Locke famously proposed a theory of limited government. The purpose of government, he wrote, was to protect individual rights, and he mentioned the rights to “life, liberty and property.” But to distill his thinking into such a one-liner, as is so often done, is to grossly oversimplify and misrepresent his thought. Why? Because Locke also said that a binding law of nature obliged every human being not to harm “the life, the liberty, health, limb, or possessions” of another.

Like other social contract theorists, Locke believed the reason individuals would establish government was for self-preservation. Without government, humans had no way of adjudicating conflicting claims. Each person would be judge, jury and executioner in his own case, and it would lead to endless and even violent conflict. So, individuals agreed to give up some of their liberty in exchange for a larger, collective good.

Locke was also a profoundly religious thinker. He believed people had obligations to each other because their lives do not belong to them. They belong to God and, therefore, “being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker … they are his property, whose workmanship they are, made to last during his, not one another’s pleasure.” Each person therefore had a duty not only “to preserve himself,” but to act “to preserve the rest of mankind as much as he can.”

The Scottish political economist Adam Smith was another Enlightenment thinker celebrated by advocates of limited government. Like Locke, Smith’s views are often abbreviated to the point of distortion. In his “Inquiry into the Nature and Causes of the Wealth of Nations” (1776), Smith favored “allowing every man to pursue his own interest his own way.” It is true that he was a great believer in allowing individuals the freedom to make their own decisions and choices and he was generally suspicious of state interference. But there were several important exceptions to the rule. In particular, it was necessary for the state to intervene during a contagion or epidemic. Any government was then obliged to invest “the most serious attention” to “prevent a leprosy or any other loathsome and offensive disease … from spreading itself among … the great body of the people,” even when these were not “mortal nor dangerous.”

As was the case with Locke, moral considerations such as these undergirded Smith’s philosophy. Often referred to as the Father of Capitalism, Smith taught Moral Philosophy at the University of Glasgow. “In the Theory of Moral Sentiments,” a book that was far more popular in the 18th century than “Wealth of Nations,” Smith argued that morality and the ability by humans to recognize and appreciate the feelings of one another bound society together. In the opening lines of this book Smith states unequivocally, “he is not a citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens.”

Smith also wrote that “the wise and virtuous man is at all times willing that his own private interest should be sacrificed to the public interest of his own particular order or society. He is at all times willing, too, that the interest of this order or society should be sacrificed to the greater interest of the state or sovereignty of which it is only a subordinate part.”

These are the true values of liberal democracy and of the U.S. Constitution. They are the ones Americans should recall today. Let us not be mistaken: Not only do American citizens not have the right to refuse masks, they have a positive duty to wear them.