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Contemporary U.S. jurisprudence thus treats public health orders requiring masks or limiting attendance at religious services as conflicts between individual freedoms and the public safety. Courts have left unquestioned the scope of individual liberties. Choices about whether to cover one’s face or attend religious services are not, however, fully analogous to protections from physical injury by others. Instead, they are choices that may result in risks to others. It is thus at least open to question whether they are within the scope of protected individual liberties in the first place. The scope of personal liberty—whether liberty is distinct from license—is the question at the foundation of the Jacobson decision over 100 years ago. Courts today, however, rely solely on whether the public health interest is sufficiently strong to override presumed individual liberties.
This construction of individual rights to personal liberty as license, pitted in conflict with public health, is particularly damaging in times of crisis such as the current pandemic. It encourages people to see governmental efforts to protect the public health as overweening intrusions, to be protested and defied. The pandemic emergency thus forces careful re-examination of the outer limits of personal liberty itself. Without such re-examination, the U.S. faces not only the consequences of the absence of positive liberties, but also a crisis within what has traditionally been viewed as negative liberty itself.
107 ARCHIV FÜR RECHTS- UND SOZIALPHILOSOPHIE 79–89 (2021). https://doi.org/10.25162/arsp-2021-0005