A policeman wearing a flu mask speaks to a maskless man during the Spanish flu pandemic in San Francisco in 1918. (California State Library)

Town councils and county boards of supervisors in the Eastern Sierra have all been visited, via Zoom, by an avid-anti-masker who insists all those entities are flying in the face of the Constitution by enacting laws, guidelines or public health orders requiring masks be worn in public places. He comes up just short of implying all the elected officials and staffers should come to no good end for their anti-Constitution actions.

He’s wrong. The Constitution delegates that authority to the states and the Supreme Court has upheld and elaborated on those public health orders.

According to the American Bar Association. The 10th Amendment (the one that gives states all the rights not contained in the Constitution) and Supreme Court decisions give state governments the authority to control the spread of dangerous diseases within their jurisdictions.

Chief Justice John Marshall

In the early 1800s Chief Justice John Marshall cited the 10^th Amendment in the Court’s decision in Gibbons v Ogden, noting police powers, including imposing isolation and quarantine conditions, are reserved to states for activities within their boundaries.

According to the ABA, that authority is double-barreled, not only allowing states to enforce public health ordinances, but the federal government as well.

Nothing new…just tiresome

“Through the Commerce Clause (Article 1, Section 8, Clause 3) the federal government has broad authority to quarantine and impose other health measures to prevent the spread of disease from foreign countries, as well as between states.”

Public health requirements aren’t anything new. In 1902, the Supreme Court upheld a Louisiana decision that the “state could enact and enforce quarantine laws unless Congress opted to preempt them.”

During the flu pandemic in 1918-19, following public health requirements was considered patriotic, a way to protect the troops engaged in World War I. The Red Cross even came out with a public service announcement branding those who did not wear a mask as “slackers.”

Policemen in Seattle, Washington, wearing masks made by the Red Cross, during the influenza pandemic, December 1918. Credit: National Archives

Public health regulation compliance during the Spanish Flu was taken very seriously. While Inyo County Sheriff Jeff Hollowell has stated he won’t enforce Inyo’s regulations due to lack of funding and staffing, a San Francisco officer took the mask mandate very seriously. He shot a man who refused to wear a mask as well as two bystanders.

Following the World War I armistice, that zeal waned. Dissenters in San Francisco formed the Anti-Mask League. That sense of mask outrage wasn’t widespread, however.