It finally happened. Four months, 145,000 dead, and one emergency political intervention from Mitch McConnell later, and Donald Trump has finally admitted that “many people”—if not himself—believe that wearing masks may benefit American society. Of course, this came far too late for a significant number of his followers, who used the four-month interlude to spin bizarro conspiracy-laden fairy tales for why, sorry, they just can’t possibly wear a mask.
There will be no effort here to prove or disprove the efficacy of masks of any type. The entire exercise may turn out to be futile. We are doomed to live in real time, and the functions of human knowledge are limited. One would think that anything that could slow the spread of a disease that has already killed 150,000 Americans and may kill hundreds of thousands more would be readily adopted.
And yet, there is inexplicable resistance. While holdouts employ easily discreditable excuses, the most common one is that masks represent the extinguishment of that spark of freedom preventing America from finally tilting into totalitarian hell. Or something. Maybe they just don’t like stripes.
Indeed, once one digs into the argument, one must conclude it’s the stripes. The intellectual premise itself is incoherent. The rebels suggest that freedom from mask-wearing is worth claiming for “freedom’s” sake, and that the potential risk to others is outweighed by resisting the unwarranted invasion of their personal autonomy.
Most conservatives—particularly the religious and social conservatives now prone to libertarian declarations of self-determination—didn’t use to think like this. In 1993, conservatives believed they had found the Supreme Court majority to reverse Roe v. Wade. And yet, in Planned Parenthood v. Casey, Justice Anthony Kennedy wrote the following as he joined the majority to preserve Roe’s core holding:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
I have no idea where a right incorporating “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is bounded. I would suggest that no one does, including those (and I include myself among them) grateful that Casey exists.1I concede to being disappointed in 1993, though in my defense this was long before I discovered through personal experience that conservatism was just a rich man’s grift. A plain reading would seemingly incorporate every decision an individual makes.
And, indeed, Justice Kennedy’s broad formulation of liberty has been oft-criticized—by conservatives. As conservative hero Justice Antonin Scalia wrote in his Casey dissent:
A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example–with which entire societies of reasonable people disagree–intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution.
Indeed, Justice Scalia was quite specific in his disdain for those like Justice Kennedy who found “liberty” in expressions of personal choice and autonomy:
The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions,” it involves a “most intimate and personal choic[e],” it is “central to personal dignity and autonomy,” it “originate[s] within the zone of conscience and belief,” it is “too intimate and personal” for state interference, it reflects “intimate views” of a “deep, personal character,” it involves “intimate relationships” and notions of “personal autonomy and bodily integrity,” and it concerns a particularly” ‘important decisio[n] . . .”2Citations omitted, law nerds.
Justice Scalia3To be clear, I believe Justice Scalia was a principled and sincere conservative, from a more principled and sincere era of conservatism. then explained from a conservative perspective why all of these formulations, in his view, fell short of describing any sort of protectable “liberty” interest:
Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable.
The premise of Justice Scalia’s dissent was that a “liberty” as ill-defined as Justice Kennedy’s was no liberty at all. Not only was it undefinable, but it ignored that Americans govern themselves by law, not by individual autonomous choices. Or as George Constanza would shout, “WE LIVE IN A SOCIETY HERE!” Justice Scalia’s point, long supported by conservatives whether true or not, was that proscribing autonomy and “bodily integrity” has long been the government’s business.
And, remarkably enough, when Republicans howl about their failure to cement a consistent court majority to reverse Roe and its many progeny, it is precisely because they purport to support the premise that autonomy and “bodily integrity” are very much the government’s business, thank you.
One could even go further, and concede that conservatives once argued the regulation of intimate personal behavior was a necessary prerequisite for a better society. And setting aside the substance of that position, at least that can be credited as a proper impulse. Because liberty must always be employed to some greater end. It is never the end in itself.
No less than James Madison knew this, writing in Federalist 51:
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.
Justice doesn’t serve liberty. Liberty serves justice. Even the Constitution’s preamble speaks not of “securing liberty” but of securing “the blessings of liberty.” If anti-mask wearers can explain how their obstinance promotes the greater good, let them try, but currently they aren’t even trying. One would think conservatives with such declared reverence for the American founding would understand the basic principles they purport to toy with.
But founding principles are not the game here, and that’s facts. At end, the whole mask diversion speaks to the deeper truth that today’s “conservatism” has no interest in society at all. The objectivists4Ayn Rand’s signature philosophy, the first tenet of which is that man’s moral purpose is his own happiness. Sit down for this: Rand was an atheist. have not only won, they joined the battle from Trojan horses marked “Christianity.”
Which leaves conservative ideology in the same state as its adherents–that of permanent civil war. If conservatives really believe that something as simple as mask-wearing constitutes an unbearable invasion of personal autonomy, surely they open the Pandora’s Box of alleged social evils they otherwise claim to abhor. If this is a fundamental right, then most things are.
Or, put a different way, the freedom conservatives claim when they refuse to wear a mask—the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life—if it exists, flows from the same wellspring as those who claim rights to perform abortions, engage in homosexual acts, and wed same-sex partners. A shrewd conservative might ask if all this merely proves Justice Scalia right in the first place. But then the anti-mask brigade must collapse. This can’t go both ways.
As a result, one would think that principled social conservatives would ask their brethren whether capitulation to all of the rights conservatives traditionally disdain are worth trading for what is, essentially, the right to infect others. But then, that would presume principled conservatives remain for whom social concerns are more than just crude manipulations trotted out every two or four years to manipulate credulous white Republican voters.
Or put yet another way, at least gay weddings involve two people who care about each other. Try finding that in the White House.