Opinion: Where common good meets individual rights

Public health can legally be a priority above personal freedom to not wear masks.

From the moment the United States was created, the country has suffered from a constant tension between ensuring individual liberty and protecting the common good. We are, after all, a nation that celebrates individual rights and freedoms. But we’ve always had to find a balance between protecting one person’s rights while not harming others. During the pandemic, this tension has been thrown into stark relief.

To combat the pandemic, people have to be willing to sacrifice things like bar nights, concerts, and ball games. Why? Because we share the same restaurants, shops, and theaters. As such, our fates and viral counts are intertwined. When one person decides to wander around without a mask because they believe it’s their right, it affects every person who encounters them.

Leah Ward Sears
Leah Ward Sears

Pandemic Brings About New Concerns

Earlier this year, the coronavirus began to spread across the country. Many states, cities, and counties issued shelter-at-home orders. These orders were necessary to stop the spread of the virus. These restrictions engendered some of the first civil unrest this year. The President told his Twitter followers to liberate states with shutdown orders. Populist protests emerged. In one notable example, motorists congregated in Denver to protest shutdown restrictions. They were countered by medical workers who stood in silence and blocked traffic.

The contradiction between protecting American lives and supporting individual freedom has only continued over the last few months. Because of the shutdowns and the spread of the coronavirus, many have been left without jobs and childcare options. Protesters have made demands to reopen the economy and forego masks. Across the country, people have resisted because they want to go back to their pre-pandemic lives.

Scientists know that the coronavirus spreads in crowded places, however. That's why many locales have restricted the size of gatherings at sporting events and parties. If restaurants and bars are open, they're often required to serve fewer people than before.

Research also shows that the countries that adopted social distancing measures and mask mandates earlier had fewer infections than countries that delayed these decrees. Another study found that countries that required masks had lower death rates. In the United States, there is no national mandate to wear masks. Mandatory masks, social distancing, and shutdown policies are dictated at the state, city, or county level.

The science is clear. Taking collective steps to prevent the spread of COVID-19 can reduce the transmission of the disease and decrease the number of deaths. Unfortunately, many people view these measures as an infringement on their personal liberty. Specifically, some people believe that wearing a mask violates their individual rights. While health requirements, like wearing shoes and pants, have long been accepted measures, many people struggle to accept new health requirements. By acting in their own self-interest, some are risking the lives of other people. The flagrant disregard for human life via viral transmission and desire to behave selfishly is apparent at anti-mask protests in places like Wisconsin, Michigan, and Texas.

Rugged Individualism and the American Way

Rugged individualism was a term coined by former President Herbert Hoover during the Great Depression. It revolves around the American ideal that people have the right to be totally self-reliant and independent, especially from the government. This belief, which is the thing so many love about Americans, is also what's killing us now.

Rugged individualism tends to favor people who already have wealth and social capital, however. When you have the money, power, and ability to do whatever you want, it’s easy to be individualistic. Meanwhile, those totally free Americans may spread the virus to people who are unable to work from home and cannot afford a layoff. Forced to work in public settings, disadvantaged Americans, many of whom are Black or Brown, may also lack health insurance. If these workers become ill, they’ll bear a heavier burden than the rugged individualists who gave them the virus.

The Future for the United States

Winston Churchill famously said, "You can always count on the Americans to do the right thing after they have tried everything else." Hopefully, sooner rather than later, Americans will pull together and do the right thing. During World War II, we came together to create needed Victory Gardens, work in factories, and volunteer for military service. While we returned to the status quo afterward, the war showed our ability to cooperate and work toward the common good.

According to two of Harvard's top legal experts, personal freedoms can be restricted when there are compelling grounds. Abrogating individual freedom in favor of public health has been possible for years.

Consider the case of the woman known as "Typhoid Mary," an asymptomatic carrier of typhoid fever. Public health officials forced her to quarantine for 26 years when she kept violating official orders to stop spreading typhus by working as a cook. Typhoid Mary had options. Removing her gallbladder would likely have prevented her from spreading typhus. But she refused to do so. Mary Mallon could have also stopped working with food. Instead, she chose to keep cooking food under an assumed name. Three people died because of her. Scores were sickened in multiple cities. The Supreme Court ultimately decided that quarantining her was legal because the community had to be protected.

American revolutionary Patrick Henry declared, “Give me liberty or give me death.” If his request were honored today, he could likely end up with both, and not just for himself, but others as well. For the time being, people need to wear masks and social distance to protect the common good. Most of these measures don’t infringe on Constitutional rights. And there are a great many technological workarounds that can help us enjoy our civil liberties today while protecting human lives. When exercised responsibly, enjoying your rights don’t have to come at the expense of the common good.

Leah Ward Sears is a partner with Smith, Gambrell and Russell LLP, and former Chief Justice of the Georgia Supreme Court.