Mask Mandates and Broccoli Mandates

The opposition to mask-mandates harkens back to the Obamacare challenge.


One of the most enduring images of the constitutional challenge to Obamacare was broccoli. Indeed, I briefly considered (and thankfully rejected) the idea of putting broccoli on the front cover of Unprecedented. Could the government force you to buy broccoli, the argument went? Of course, NFIB v. Sebelius was not about broccoli mandates. The litigation asserted that Congress lacked the enumerated powers to require people to purchase insurance. But the image of making people purchase broccoli resonated.

And, to be frank, most people simply assumed the analogy was making people eat broccoli. The public at large didn't really understand, or care, about the subtle distinction between consuming it and buying it. Intrinsically, people understood there was a difference between forced not to do something, and being forced to do something. The former was common enough. The latter was thankfully rare. And this concept permeated all aspects of society.

I see shades of the broccoli-mandate in debates over mask-mandates. There are some similarities. Forcing people to eat broccoli will make them healthier, and in turn, improve the public's health, thereby helping the health care system. Forcing people to wear masks will make them healthier, and in turn, improve the public's health, thereby helping the health care system. The parallels are not perfect, but they are close enough.

This sort of constitutional challenge would sound in Due Process. (David Super speculates about this question at Balkinzation). Even the most ardent critic of substantive due process would agree that forcing people to put something on, or in their body, triggers heightened scrutiny.

Would a constitutional challenge to a mask-mandate challenge be viable? Under Jacobson v. Massachusetts the answer is no. Is Jacobson consistent with a century of Due Process Clause jurisprudence? No. Several judges have already begun to cast doubt on that precedent.

This issue is largely academic for now because the mask-mandates are not actually being enforced. I am not aware of the states fining or arresting people who refuse to wear masks. The rubber will meet the road when states begin to mandate vaccinations to develop herd immunity to COVID-19. Courts will be happy to rely on Jacobson.

NEXT: "These Days ... It Is Safest to Be Circumspect and Cautious"

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  1. Forcing people to eat broccoli will make them healthier, and in turn, improve the public’s health, thereby helping the health care system. Forcing people to wear masks will make them healthier, and in turn, improve the public’s health, thereby helping the health care system.

    You thick-as-a-brick hack, forcing people to wear masks makes *other* people healthier, not the mask wearer.

    I hope Joe Biden wins the presidency specifically so that you don’t get some sort of judicial appointment in a second Trump term. I don’t really care who wins otherwise. I just want you, personally, to go unrewarded in your quest to sycophantically shitpost your way to an Article III gig.

    1. Masks work both ways, you thin-as-a-stick hick.

        1. Doesn’t matter, really, since in either case Blackman overlooks the benefit to others.

          And I confess that I, too, don’t get “the subtle distinction between purchasing it and buying it.”

          Maybe you have to be a lawyer.

          1. I assumed that was a typo, and that he meant the distinction between purchasing it and using it.

            1. I agree. Although Josh believing there is a subtle distinction between buying and purchasing things that we dopes in the public-at-large just don’t grasp is completely in character.

              1. Well, I think he’s saying the govt can’t force to buy it but not eat it. The enumerated power at issue was the commerce clause. With the commerce clause the govt could force you to buy it but not use it. I always thought the argument was rather silly because having health care insurance protects others and protects the individual. It protects others by bringing the cost of healthcare down and makes treatment affordable. It protects the individual by making sure they are insured in case of a medical emergency.
                Anyways that case did give congress an idea on how to get around this entire argument. Just tax people for not wearing a mask in public.

                1. Also I go to the Law School he teaches at. There are three con law professors. One of the con law professors wrote a review of his book were he goes in-depth into the many fallacies in his argument and how he cherry-picked facts.

                  Here is a link if you guys want to read it.

        2. “Nope. They’re source control.”

          It’s funny how when my wife was going through chemo (and thus immunocompromised) a couple of years ago the medical community’s universal advice was that she wear a mask to protect her from catching common germs (influenza, rhinovirii, coronavirii, …) from others. But the progress of science marches on, and now I learn that it is settled science that it was actually all about protecting healthy people from her!

          1. …Maybe it depends on the mask type?

            1. No, they are supposed to work both ways. There is very little evidence that they actually do.

              1. That’s not what the latest science says.
                Hasn’t for some months.

                1. “latest science”

                  June science, not the science from March.

                  The scientists have been merely improvising all along. None of it is well grounded in science.

                  1. Yep; science is less sure than it usually is; and even usually it’s not always right.

                    But it is our best available guess as to what’s going on. Better than anything the chuckleheads around here have.

                    1. I don’t see why a “guess” has to be blindly followed.

                    2. An educated guess is better than a random guess. For instance, I’d trust a doctor’s guess about how to treat a disease I had better than anyone else’s for obvious reasons.

                    3. It has to be blindly followed when the action affects everyone, not just yourself, Bob.

                      Externalities bind us all.

                  2. “None of it is well grounded in science.”

                    How do you know that? Which studies, experiments, and meta-studies are you conducting that demonstrate their new conclusions are not based on the scientific method or are completely at odds with what is known about virus spread?

              2. Trying to shift this thread back to law… would the government have to prove that masks protect others? That that they protect the wearer? That they *might* work? Merely that the “economy might be better” because people will be more willing to shop (ala the security theater at airports)?

            2. “Maybe it depends on the mask type?”

              The recommendation she got was ‘wear a mask’. Judging by what we saw at the clinic on our visits it was an even split between the ‘nuisance dust masks’ the hardware store sells, the disposable surgical masks the drugstore sells, and various improvised ones (wraps, sewn cloth, etc). Rated masks (N95, N100, P100, …) weren’t mentioned.

              Masks do, of course, vary in their filtration capabilities. That’s obvious from the rating for N95, N100, P100, etc. But cloth can vary a lot as well. For example, the Army biowarfare people ran some tests that found some common fabrics that filtered 75% of the appropriately sized particles, vs. 90% for N95 (ed: I think the 90 is a typo). That’s not exactly no protection.

              If you follow the links there to the news release, it says “The team also found that even a polyester bandana can be reasonably effective if it is used in layers. It will filter out 40 percent of suspended particles.”

              1. Science marches on, I guess.

            3. It does actually depend to some extent: You can get masks with one-way valves in them, that bypass the filter while exhaling; They protect you, but not the people around you.

              They’re commonly used in dusty environments, because they’re easier to breath in but still protective. I’ve seen a lot of ads for them for the virus.

        3. You trust the CDC? Still?

          They work both ways.

        4. Did you actually read the CDC article you cited to, Sarcastr0? Nothing in that article says that masks are only source control. Nothing in that article actually talks to the exact mechanisms by which masks prevent disease transmission at all.

          Other better articles, however, do explain the mechanisms. See below.

          1. Last I heard it’s 70% effective outgoing, 15% incoming, with marginal changes for materials and form.

        5. At best if fitted and worn properly.

    2. What don’t you think Black Lives Matter? I could see of nothing more timely then Trump putting a Blackman on the Supreme Court.

      1. OK, I’ve got to give you that one. That made me chuckle.

    3. Perhaps I’m a hopeless naïf but—Prof. Blackman can’t possibly think he’s capable of being a decent judge, can he?

      1. Does he think he can be a decent judge or a decent guy who hangs out in chambers with Ivy League clerks writing self-indulgent concurrences to his own majority opinions?

      2. “capable of being a decent judge,”

        He is capable of being an excellent judge so he probably does not stop at “decent”.

        1. Trial or appeals? I can’t imagine Blackman sentencing someone.

          1. He is a constitutional law prof, district court is too limited.

            1. Good. So he can be a guy in his chambers writing self-indulgent and pedantic concurrences. I agree with that.

      3. Why not? Someone who is good at one thing might naturally think they’d also be good at another related thing. Maybe not the best ever, but there’s no reason to believe he’d be worse than average.

      4. He’s a subpar legal intellect, but he is unquestionably a tier 1 grifter. In other words, perfectly positioned to get an appointment from Trump.

    4. Before accusing the author of being “thick-as-a-brick”, maybe you should look in a mirror.

      Masks protect other people by catching most of the large water droplets from the inadvertent coughs and sneezes of those who are sick but not yet symptomatic.

      Masks protect the wearer primarily by reminding us to not touch our faces. Germs (including viruses) are everywhere. They can’t hurt us until we transfer them to a vulnerable part of the body. While it’s possible to catch a disease through respiration, that’s rare – even for coronavirus. Mostly, we pick up germs when we touch things, then get sick after we eat with our fingers, pick our noses, bite fingernails, rub eyes, etc. Masks don’t completely stop any of those behaviors but they do successfully remind you to not touch your face until you’ve washed your hands.

    5. If the mask wearer is not sick, the masks do nothing.

    6. Now, now. The evidence is masks do protect in both ways. But wearing to protect yourself can be a matter of choice. Wearing one to protect others implicates a public health interest, and can be enforced.

  2. Can the federal government mandate everyone wear a mask? Probably not just as a matter of Congress passing a law that says, “everyone must wear a mask.” But, through a series of regulations, administrative decisions, and perhaps taxes for non-compliance it could come pretty darn close to ensuring a constitutional mandate for mask wearing across the country.

    Does this even need to be a federal issue in the first place? Seems like states are doing just fine crafting policies that work with their various unique situations.

    1. Seems like states are doing just fine crafting policies that work with their various unique situations.

      Are you pretending?

      1. No, he’s an ideologue. Under his world view, that’s the way things should be working, so therefore that’s the way things must actually be working. We don’t need no stinking data.

  3. I don’t remember the broccoli argument “resonating”. Though it has in common with the mask issue its ability to threaten fragile conceptions of masculinity.

    And yes, the mask mandate is being enforced, by store owners and restaurant owners. Here in New York no one has a problem with it.

    And Josh seems unaware of the purpose of a mask.

    He really shouldn’t post so much.

    1. >I don’t remember the broccoli argument “resonating”. Though it has in common with the mask issue its ability to threaten fragile conceptions of masculinity.

      I don’t see how you can assert the 2nd sentence given your admission in the 1st sentence.

  4. The problem with the Obamacare mandate, according to Prof. Barnett, scores of conservative legal thinkers, and five Supreme Court justices, was that it exceeded Congressional power under Article 1 Section 8, specifically the Interstate Commerce Clause. States could, (and Massachusetts did) enact such a law. The same might be said for mask-wearing mandates passed at the state and local level, but completely outside of the scope of Federal power. Josh’s invocation of due process is out of place in this context, and calls into question whether VC may be providing unearned exposure to a sycophant of a more deserving member.

    1. Yes, I am surprised he botched it so badly. The issue at the federal level is very different from the issue at the state level.

  5. Mask wearing in public is the new IQ test. Dumb, unthinking, sheeple who bow to their State masters wearing face diapers vs free thinking, don’t tread on me patriots.
    Anybody who uncritically believes a word coming out if the mouths of our governing class is brainless boob.

    1. Yes, it’s definitely the guys without the masks who are the smart ones!

    2. Has it ever occurred to you that you’re the sheeple for a different set of masters?

      1. Who would my masters be?

        1. Trump? Right wing media? Right wing politicians? I mean you are self-describing yourself as a “free thinking, don’t tread on me patriot” without any trace of irony and then falling into lockstep with the behavior those politicians and media figures want to promote.

          1. President Trump, the Right Wing Media, and Right Wing Politicians are out there saying don’t wear masks or social distance because they don’t work?

            1. They do work. And they’re not doctors and they don’t know what the hell they’re talking about. When is the last time Trump, Laura Ingram, Tucker Carlson, or any of them took a biology class?

              1. Can you slow down and try reading my question again? You seemed to be answering something completely different.

                Why do you think taking a biology class would make someone an expert on masks and infectious diseases?

                1. I did read it. I understood to be rhetorical.

                  And taking a bio class wouldn’t make them an expert obviously. But it would make them a lot more informed than they are now. They have zero basis for the things they are saying other than their gut feelings and their desire to own the libs.

                  The scientific community on the other hand, is trying to determine the best strategies to fight a novel virus based on their years of studying and understanding viruses and the new data that comes in. The fact that they change their mind on strategy doesn’t bother me too much, because this is new to them too. But I do know they know a hell of a lot more about what to do than Trump, Fox, OANN, Richard Epstein, right wing bloggers and trolls.

                  1. Your premise is that President Trump, Right Wing Media, etc are out there telling people not to social distance or wear masks.

                    That’s a bald-faced lie. Your entire belief is based upon an easily disproved lie, yet you still insist it’s true.

                    It’s like you are more emotional than you are rational. Just like your silly emotional appeal to authority. That same “scientific community” shut down the world’s economy for nothing, then sent COVID patients to nursing to kill vulnerable patients, AND THEN while telling us to stay home inside went out there to protest in large mass groups for “black trans lives”.

                    The world you live in can’t be the real one but some made up one of a delusional child.

                    1. Trump is refusing to wear a mask.

                      He’s using Biden wearing a mask to try and mock him:

                      Rush calls liberals ‘mask-wearing freaks.’

                      So, what in Sam Hill are you talking about, Sam Gompers?

                    2. They don’t wear masks, and they don’t support social distancing. And being skeptical of experts. So what message is that sending? The appeal to authority makes sense because it’s far more likely that someone who studies viruses is going to come up with an effective solution than a right wing politician or media figure.

                      Would you rather have Tucker give you medical advice or an actual medical doctor?

                      Your attempt to insult me by calling me a delusional child is misplaced. I am a rational functioning adult who understands how science works and how the world works. Although I hate infantilization as a rhetorical tactic, if anything your selfish attitude is the childish one.

                    3. @Sacastr0

                      That’s a CNN article talking about a tweet. Two sources of information that aren’t part of my universe.


                      My apologies for the insult. What facts are you relying upon to draw your conclusions other than someone in a position of authority commanded you to behave a certain way? Are there any valid reasons to be skeptical of those commands?

                    4. Your premise is that President Trump, Right Wing Media, etc are out there telling people not to social distance or wear masks.

                      No new goalposts, Sam.

                      But know, too, that these are the waters in which you swim. What Trump excretes inevitably affects your environment.

                    5. The facts I’m relying on is the knowledge of how complex scientific study is and the fact that they will likely reach a better conclusion than anyone else. I know that me playing amateur epidemiologist or statistician or medical doctor likely won’t result in the best conclusions. I don’t have the knowledge or the time to study the problem in such a way to come to a solid conclusion.
                      If my conclusions are right, it’s sheer luck.

              2. “When is the last time Trump, Laura Ingram, Tucker Carlson, or any of them took a biology class?”

                High school. Maybe college. Like everybody else, including you.

                Pretty lame gotcha. Who takes biology classes after they leave school?

                1. Medical students? Biology grad students?

                  1. Still school.

                    1. You said college like everybody else, but that’s obviously not the case.

                  2. I had to read nearly all my wife’s med school texts. That’s because while extremely bright, she did not have a good background in math, coming from an unprivileged working-class background. As I recall her physiology and epidemiology texts were particularly dependent on calculus and statistics respectively. She learned fast, but one evening brought one of her take-home epidemiology exams to me – yes, there were such things. She was required to do the math behind a well-known paper but couldn’t get the ‘right’ answer. On analysing the chain of calculations it became clear an entire segment had been left out, forgotten by the researchers. I told her she was right, she was absolutely right, and they were wrong. That turned out to be her one and only A++, the examiners commenting in class that the paper had an error and “just one student picked this up”.
                    I’ve wondered ever since first, if those who set the exam deliberately picked a defective paper; and second, how many other students noticed but did not have the courage to point the error out.

            2. President Trump, the Right Wing Media, and Right Wing Politicians are out there saying don’t wear masks or social distance because they don’t work?

              This is what WMAL said this morning. Same thing Blackman is saying. And what you’re going along with.

              Free thinking indeed.

              1. You think if someone is doing analysis on whether or not the people in government can impose a mask requirement they are telling people not to wear masks?

                1. Trump is clearly discouraging mask-wearing, suggesting it’s useless, and his sycophants are going right along.

                  If he showed some leadership on the issue, instead of using it as one way to rile up his base, lives would have been saved.

                  1. How many lives do you think are lost because some people aren’t wearing masks?

                    Given that nearly 40% of all US Covid deaths have occurred nursing homes, and I would imagine most of those from Democrat states.

                    I mean, seriously, where is all this fear coming from? Are you in a Democrat nursing home? Is that why you’re so fearful?

                2. Yeah, I do think making a janky analogy to the ACA is certainly going to have that effect.

                  Just look at this comment thread; if Blackman isn’t putting that down, a bunch of people sure are picking it up!

                  1. And you don’t think people could have come to that conclusion independent of some obtuse inference from this article?

                    1. I think validating a narrative has an effect on behavior related to that narrative, yeah.

                    2. Frankly, that’s pretty bizarre, but squarely in the realm of the form of speech control we see now from the mainstream left.

                      Where even tangential speech is somehow violence, or otherwise unallowable.

                      I reject your authoritarian attempts at speech control.

                    3. Equating criticism with control is ridiculous, Sam.
                      I also never equated Trump’s mask-hating with violence.

                      Respond to what I wrote, not what you wish I wrote.

                    4. Ok, how’s this:

                      Frankly, that’s pretty bizarre, but squarely in the realm of the form of speech control we see now from the mainstream left.

                    5. Criticism. Is. Not. Control. You. Crybaby.

              2. Further, you think prior to Blackman’s article and whatever happened on that radio station that I don’t listen I did believe one should wear a mask, but now I don’t?

                That seems to be the basis of your comment. To me that seems like a pretty stupid premise.

                1. Well you’re getting these ridiculous ideas from somewhere. I assume you haven’t done graduate work in epidemiology or done any meta-studies.

                  1. And you don’t think it’s possible to conclude that the fears from COVID might be overblown independently from observation?

                    What data did you use to conclude the threat from COVID was so severe?

                    1. I’m not competent to make that determination. But I know there are people who are more competent than me to figure it out. And I know they’re more competent than me because I know that they have the tools and knowledge that will ultimately lead them to a better answer than any one I could ever think up.

                      Just like I know that medical doctors and scientists know more about cancer, heart conditions, and the like than I do, so too do they know more about effective strategies for infectious diseases.

                2. I think you are using arguments directly in keeping with a segment of the right.

                  Your pretending to be a free thinker is kinda laughable. No man is an island, chief.

                  1. It’s not possible for me to independently draw my own conclusions about the risks from COVID?

                    Maybe you’re projecting your personal cognitive limitations onto others.

                    1. What do you think no man is an island means?

                      If you think you’re not influenced by the opinions and narratives offered by the people you agree with on other stuff, you’re delusional.

                      ‘Be a free thinker! Agree with free thinkers like me!’

                    2. * 40% of COVID deaths are in nursing homes. A majority of those are probably centered in 5 Democrat states.

                      * The median age of a COVID death is 78-80. Life expectancy, in general is 78.6.

                      * Brix and other officials have stated that people dying with COVID will be classified as dying from COVID. Suggesting the denominator in many of the COVID stats are artificially inflated.

                      * There is no scientific basis for “six feet”.

                      These are the primary facts I have used to draw my conclusions. Note how none of those include statements from President Trump, or Rush Limbaugh or anyone else.

                      What facts are you using to form your beliefs?

                    3. Yeah but your independent determination is not based on anything that would lead you to a better conclusion than scientists. Again, what studies are you conducting on how viruses spread? Which experiments are you conducting? How do those studies and experiment results match up to the wealth of virus knowledge you already have?

                    4. You’re just an amateur playing statistician. You’re like every lawyer or grandstanding Congress-person who tries to be smarter than an expert on the stand and gets thoroughly destroyed.

                    5. Your arguments echo those being made by the conservative radio I listen to. Again, you seem to think the water in which you swim is a vacuum that touches nothing. That’s

                      Using Democrat. Quite the tribal shibboleth for a free thinker.

                      Your facts do not support your conclusion. Which is…that everyone else has the risk-mix wrong? That COVID isn’t a thing? It’s hard to tell, other than that it’s making you angry.

                      Epidemics are a time when collective action is important. You are being a free rider. And feel entitled to it because…you’ve got more personal hubris than social sense, I guess?

                    6. “Your arguments echo those being made by the conservative radio I listen to. ”

                      Maybe they are echoing his arguments?

                    7. “Your arguments echo those being made by the conservative radio I listen to.”

                      I get told that all the time myself, even though I actually seldom listen to conservative radio, and maybe hear a few minutes of Rush a month.

                      The thing you seem to discount is that conservative talking points aren’t randomly generated in some central office, and then distributed. They’re things you naturally converge on if you think like a conservative.

                    8. You and talk radio can be echoing the same thing, and your correlation can still be indicative.

                    9. @LawTalkingGuy

                      I notice you didn’t bring any data to the table.

                      Those facts alone are enough for me to assess risk.

                      I can see you need some authority figure to tell you how to live your life.

                      I don’t.

                    10. @Sarcastro

                      What are you basing your fear on? What observations, or data, or whatevers are you basing your panic and fear on?

                    11. @Sam. I don’t bring data to the table because I know I’m not competent enough to generate it myself and that my interpretations of data offered by public health officials are far more likely to be erroneous compared to medical doctors and scientists.

                      It has nothing to do with authority it has to do with competence. I’m not going to be made a fool by overestimating my scientific competence like Richard Epstein.

                      I listen to the prevailing views of doctors and scientists on this issue for the same reasons I don’t go around trying to say mathematicians are wrong about the impossibility of squaring the circle, using amateur generated astronomical data to disprove general relativity, cure my ailments with essential oils, or try to turn lead into gold.

                      I’m not going to pretend I’m the Ramanujan of public health and epidemiology who is going to somehow independently discover the right answers to how to mitigate the virus.

                    12. “You and talk radio can be echoing the same thing, and your correlation can still be indicative.”

                      Yes, it’s indicative of the fact that I’m informed, capable of reason, and am ideologically not a left-winger.

                      Seriously, these aren’t random phrases somebody in a central office is generating by rolling dice and consulting a chart. They’re actual arguments and positions that are obvious to anybody of a particular mindset, often anybody who isn’t left-wing.

    3. Right, you shouldn’t believe the government.

      The government was telling you not to wear masks a few months ago. Any one with an iota of common sense could tell you that is wrong. You should have not listened, as I did, and wore on.

      1. “But I’m a lowly undergraduate in a completely unrelated field and a more appropriate theory is that anything I develop is dumb and should be avoided at all costs.”

        Well noted.

    4. This seeming to be one of the longest threads, I’ll throw in a comment at the upper level for what it is worth.

      The constitutionality should be judged based upon the breadth of the restriction, w/ the greater the breadth the stricter the scrutiny. The objection by some, including me, is not that they are necessarily a bad idea but that any requirement should be crafted around vulnerable populations, viz, some elderly, chronically-ill, and the like, and vulnerable regions, viz, determined by statistics and perhaps density.

      The County in Michigan in which I live, though rural, is one of the largest area counties in Michigan. It has since mid-March had a total of 42 cases, a number that has apparently been holding steady for all of June. Even a 75 year Old Fart like me is exposed to little risk. In my opinion, justification for promulgation of an untailored regulation should require both a rational basis for applying it to a wide scope of situations and clear and convincing evidence requiring it even to a narrow scope.

  6. The govt can make you go to war if it wants (draft – with exceptions).

    The govt can make you wear a seat belt under certain conditions if it wants (driving a car, riding in a plane).

    And really we are the govt so if we say you will wear a mask in public, then you will wear a mask in public.

    Not sure why that’s so hard to understand.

    1. The government can put me in jail if I don’t go to war, but they cannot make me go to war.
      The government can fine me if I don’t wear a seat belt, but it cannot make me wear a seat belt.
      The government can fine me or jail me if I don’t wear a mask, but it cannot make me wear a mask. Especially since there are several exceptions to the executive orders, most of which I qualify for.

      1. The only reason I wear a seat belt on residential streets is because my stupid car beeps every 30 seconds if I don’t.

        Sometimes I still don’t, if the trip is short. Rebel that I am.

        1. You’re a regular Rosa Parks.

      2. I figured on a law blog that readers would know that if you break the law, then there could be legal consequences, so thank you for making these clarifications for the ignorant readers.

  7. I find the comparison and contrasts in the rationales for going armed, and not masked fascinating. But then I’m just one old man that will not mask and am armed.

    My Octogenarian wife and I, Septuagenarian, just last week completed a 400 mile 10 day bicycle ride, unmasked and armed. No evident CoViD (or testing) and no shots fired. It is better to have an effective tool and not need it than to need a tool and not have it.

    The conspiracy of ignorance masquerades as common sense.

    1. My Octogenarian wife and I, Septuagenarian, just last week completed a 400 mile 10 day bicycle ride, unmasked and armed. No evident CoViD (or testing) and no shots fired.

      Wow. Sounds like a great country to live in. Did you each bring a fire arm or did you have one between you? And how many bullets? And was it a rifle or something smaller? And did you remember to bring some hand grenades?

    2. Good on you both, Doug! You must have had a lovely, and safe, time.

      All of us agreeing with your masked ignorance insight are not chiming in, so I will. The eager compliance to reduce one’s air intake and look like a fool in order to buy a can of beans or read a book in a library may be well-intended out of consideration for others or out of fear for themselves, but, either way, it’s definitely conditioning to do whatever we’re told. The few IQ points lost from regular oxygen deprivation is just a bonus effect.

    3. If a man was running towards you unmasked, coughing and sneezing, intent on coughing and sneezing on you, that could be the end of your wife. You would have nothing to protect her. That’s a failure of defense, just weak and embarassing.

      1. What about “his piece”? Sure sounds like a case of “intent to do great bodily harm” – if you believe all the health authorities.

        He could at least place a bullet in his stomach – still part of Center Mass I think – to solve the problem.

  8. “The public at large didn’t really understand, or care, about the subtle distinction between purchasing it and buying it.”

    Between purchasing and buying something? I’m afraid that’s too subtle for me, as well.

    1. Indeed. I guess I’m a full-fledged member in good standing of “the public at large”, because I have no idea what the distinction is, either. Didn’t one of these Volokh people write a book about Lincoln mixing Anglo-Saxon words with Latinate words in his speeches? Maybe that’s it.

    2. Was he trying to say “eating it” and got confused? That would make more sense in context. Although I don’t think that’s a subtle distinction at all. To the extent that people didn’t understand the analogy, well that’s a feature not a bug.

    3. Huh. I didn’t even notice that typo. My brain automatically corrected it to “eating” consistent with the previous sentence.

  9. Maybe I’m just in an unkind mood this morning, but I’ve reached the point where my attitude toward the anti-mask activists is that maybe they’ll die of Covid-19 and there will be fewer Trump voters this November.

    Eating or not eating broccoli will not limit the spread of a deadly disease. Masks do. Please tell me you get that.

    1. I think the thing that’s producing anti-mask activists is the way the authorities start out saying that masks don’t do any good, (Because they want to reserve them for the right people, natch.) then mandate them, then blow off their own mandate when protests and riots they approve of violate the mandate, then they’re back on when it’s people they don’t approve of…

      It does look like they’re just jerking us around. Mind, I’ve got a mask, (N95, I had a stash for woodworking.) that I wear appropriately. Not while driving, like some people who apparently are clueless.

      But they’re still obviously jerking us around.

      1. I think the thing that’s producing anti-mask activists is Trump parading around without one and making it a political issue, rather than one of public health.

        He never misses a chance to ridicule people or be divisive.

        1. Perhaps some, but not all.

          I didn’t vote for Trump in 2016, don’t plan to vote for President from now on – no Presidential Electors listed on the ballot – and ignore almost all MSM so I have no idea what either the Elephants or Donkeys are saying. I refuse also to wear a mask, but it certainly has nothing to do w/ POTUS.

          It has to be wholly w/ government overreach, both generally and particularly in the Free Exercise context.

      2. Brett, you have a point that leadership has been sorely lacking. However, whatever may have been the instructions initially, at this point the science is basically settled that wearing a mask is one of the most effective ways to prevent the spread of the disease. We have good data from other countries that have mandated masks. And not wearing a mask not only endangers the non-wearer, it makes it that much more difficult to eradicate the disease for everybody else.

        Plus, I think the major factor for a lot of non-mask wearers is “This is America; nobody tells me what to do.”

        1. I’ve always found it fascinating how that belief can co-exist with the fact that the US is the bureaucracy capital of the world for just about anything. I guess Americans don’t really know how little paperwork it takes to do most things in other Western countries.

          1. I used to work for the Boy Scouts of America. Talk about a paper-work obsessed bureaucracy.

          2. How much paperwork does it take to fire an employee in other Western countries?

        2. Historically, the larger problem isn’t peoe thinking, “Nobody tells me what to do!”

          Rather, it’s politicians screaming, “Give me this emergency power so I can tell everyone what to do!”, to the cheers of the masses.

          “So this is how liberty dies — with thunderous applause.” — Padme the Senator

          The danger isn’t the issue. It’s the apparent ease with which the masses fall in line behind an emergency power grab, with no concern whatsoever for the historically and repeatedly proven dangers from this path.

        3. It’s not that leadership has been “lacking”, so much as it’s been obviously inconsistent and partial. They’re leading as hard as they can, but doing it so badly they’ve discredited themselves.

          I know quite well masks are effective, the habit of wearing a mask when you might be sick is why the Asian countries did so well. So, of course, early on they told us it was pointless, at which point anybody who knew anything about biology must have realized they were BSing us.

          And then, suddenly, being in large crowds was a bad idea unless it was the right kind of political protest/riot, in which case it was just fine.

          1. I cannot disagree with your facts, Brett.

            But what I see is an object lesson in how SOME leadership, even when it changes it’s guidance, is better than NO leadership, or leadership that doesn’t care about the facts.

            1. Usually, but not always. In this case, the public was sold on masks weeks before the experts and authorities were. This was a case where the leaders should have followed the leadership of the general public.

              1. I tend to agree, for certain localized definitions of people. Other localities had people lagging. Some have them still lagging.

                1. If they should _not_ be lagging, isn’t there a decent argument for civil, if not criminal, liability for any damage inflicted?

                  Many are still lagging since they rationally perceive that, in their “localized definitions of people”, they are neither exposing themselves or others to any more than a _de minimis_ *health* risk – but that by not lagging they may be exposing the extant generation and future generations to substantial *loss of freedom* risks.

                  1. I’m not sure they’re *rationally* perceiving that, though. Masks have gotten tribal now.

                    1. With many it may well “have gotten tribal”, but not all.

                      I’m pretty isolated in The Thumb of Michigan, both from significant population concentrations and from MSM, the latter being a function of self-isolation. So I can’t really comment on the motivations of most or even many – and wouldn’t conform to them even if I was knowledgeable of them.

                      As I mentioned in an early post today, the Total cases in my County – low in population but large in area – is 42, and it has apparently held steady at this number for the past 4 weeks-or-so. So exposure risk is low indeed.

                      Thus, for me and for many in the immediate vicinity, not wearing a mask poses little danger, and what little danger exists is more than offset by the danger posed by conforming to highly-questionable EOs, and thus ratifying what can be deemed unconstitutional regulations, as well as concurring in infringement upon the Free Exercise Clause.

    2. As a conservative, I was opening telling people to wear masks when the health authorities kept lying and saying no don’t do it, and I recall getting attacked most prominently by my friends on the left.

      It has nothing to do with trump or no trump. It has everything to do with what is right or not. A month ago liberals were ostracizing people for wearing masks, and now when people don’t …

      There is no need to add politics where stupidity suffices.

      1. Who can forget the moment when the left started screaming what a lossr Trump was for not doing that nationally. Then he says he has the power to cancel it nationwide. The response?

        “Look at him wanting to be a dictator.”

        The correct answer is there should be no national commandment either way, for anti-dictatorial reasons, and just recommendations to the states and let them handle it.

        Neither side feels they are the pigs wallowing in filth. Which is the problem historically when dealing with emergency powers.

        1. The correct answer is there should be no national commandment either way, for anti-dictatorial reasons, and just recommendations to the states and let them handle it.

          This does not make good sense under your ‘no dictators’ rationalization. If an order is dictatorial coming from the President, it is the same coming from a governor.

          Moreover, you are taking initial confusion and blowing it up to prove that no guidance is better than not immediately correct guidance. I don’t think that’s right.

          1. “This does not make good sense under your ‘no dictators’ rationalization. If an order is dictatorial coming from the President, it is the same coming from a governor.”

            We actually have a division of power between federal and state governments, you know. And many things that it would be an unconstitutional usurpation of power for a President to order are just pushy, but not unconstitutional, if the order is issued by a governor.

            It’s possible for governors, too, to exceed their power and become dictatorial, of course. Governor Whitmer back in Michigan is sure determined to demonstrate that.

            1. That’s not the argument Krayt is making – he’s not saying federalism for Constitutional reasons, he’s saying dictatorship unless federalism.

              That’s a contradictory argument. If you can even call merely invoking dictatorship an argument.

              1. “That’s not the argument Krayt is making – he’s not saying federalism for Constitutional reasons, he’s saying dictatorship unless federalism. ”

                How do you get that from:

                “The correct answer is there should be no national commandment either way, for anti-dictatorial reasons, and just recommendations to the states and let them handle it.”?

                1. Sorry, I blame the threading. Got it from Krayt’s 8:52 am post, which looks like it’s saying the main problem is dictatorial power. But he only backs it up by invoking federalism, which seems an inapt tool for the job.

          2. “no guidance is better than not immediately correct guidance.”

            In fairness, the initial ‘masks only protect nurses, not normal people’ advice wasn’t ‘incorrect’ in the sense that the powers that be actually thought there was some biological/medical reason that might be true. It was instead deceptive, as in ‘the poor dumb citizens will want to protect themselves with masks, but the masks are needed more for nurses, so we’ll offer the preposterous lie that they only work for nurses’.

            And that was worse than no guidance. One reason for that is that credibility is a **lot** easier to lose than acquire. The other is that there weren’t zillions of N95 masks sitting in people’s closets. The big chain stores that had significant inventory willing pulled them off the shelves and sent them into the medical inventory.

            It’s easier to forgive a mistake made out of ignorance in a developing situation, than being deliberately lied to.

    3. What data are you basing that belief on? Do you think most Trump voters live in Democrat controlled nursing homes?

      Do you also hope the your BLM comrades will die from COVID-19 too?

      1. Sam, if you don’t want to wear a mask, great. It could mean one less Trump voter come November. Just try not to infect too many other people on your way out.

        1. What data are you basing your belief on? Are you an empiricist? Or are you simply a man of faith?

          1. Sam, my belief is that this is Darwinian survival of the fittest at work. Stupid people aren’t wearing masks, and they therefore put themselves at higher risk of contracting the disease, thus taking themselves out of the gene pool. That’s the way evolution works.

    4. “maybe they’ll die of Covid-19 ”

      Exactly my attitude toward BLM supporters, dying of gunshots because the police have stopped policing. Fewer Biden votes.

      1. One of you is wishing for nature to play the odds based on what people do.
        The other is wishing for the police to murder people for what people think.

        You’re both wishing for American deaths. That’s a pretty dumb game to play.

        1. “other is wishing for the police to murder people”

          No police shootings this last weekend in NYC or Chicago. Yet, many were shot.

        2. SarcastrO, the flaw in Bob’s argument is that the police can only do -police work if they’re murdering innocent blacks. I’m in favor of telling the police that they can both do police work and also refrain from shooting innocent blacks, and if they don’t, we’ll fire them and find other law enforcement that can.

          My position with respect to non-mask-wearers is somewhat different. They are not just potentially killing themselves; they are killing other people by making it that much harder to control the disease. If people are going to get killed by Covid-19, I’d prefer it be the ones most responsible for spreading the disease. In my ideal world the disease would be eradicated and no one would die of it, but since that’s not happening, my second choice is that it be restricted to the people most responsible for the problem.

          I made a similar argument with respect to gun violence once. I’m not in favor of them happening at all, but if we must have mass shootings, why can’t they happen at NRA headquarters rather than in schools?

          1. Police kill 10 [maybe] innocent blacks in a year. Riots!

            Blacks kill thousands of other blacks each year, just about crickets.

            “we’ll fire them and find other law enforcement that can”

            Good luck with that.

            The new cops, if you can find them, will prudently not police in the big cities either.

            Best to show up an hour later, take some pictures and write a report.

            1. Color of law means something.

            2. Bob, the police can do their job without having carte blanche to murder innocent blacks; they just don’t want to. When people don’t want to do their jobs, you fire them and find someone else.

    5. Because you’re a terrible person.

  10. I sometimes wonder if the left fell in love with mask mandates when they realized that they made invoking the Klan acts against Antifa infeasible.

    You can’t charge somebody with committing a crime while masked, if you ordered them to wear the mask!

    OK, the major difference between mask and broccoli mandates, is that the broccoli mandate purports to be for the benefit of the person being forced to eat the broccoli, while the mask mandate purports to be for the benefit of those around the person being forced to wear the mask. That’s a big difference.

    Also, there’s a long line of precedent for enhanced governmental power to deal with epidemics, which the mask mandate fits in very well, but a broccoli mandate doesn’t. (Until some science comes up showing that eating broccoli reduces your chances of catching the virus, of course.)

    1. Blackman’s post has left behind even Brett.

      What a world.

    2. “You can’t charge somebody with committing a crime while masked, if you ordered them to wear the mask!”

      My first reaction was the irony of being forced to wear a mask in an Open Carry State. Though I never took the opportunity of strapping on my holster w/ my Beretta 92FS along w/ a mask, I though the juxtaposition and the possible reactions to be most humorous indeed …

    3. >OK, the major difference between mask and broccoli mandates, is that the broccoli mandate purports to be for the benefit of the person being forced to eat the broccoli

      That wasn’t the argument… The hypothetical broccoli mandate justification was that bad lifestyles increase every one else’s health insurance costs.

  11. I sometimes wonder if the left fell in love with mask mandates when they realized that they made invoking the Klan acts against Antifa infeasible.

    Oh for Pete’s sake, Brett. Really? You think that? It’s a psychotic notion. Literally out of touch with reality.

    You think there are people going around saying, “Hey, here’s a great idea. We’ll make everyone wear a mask, and then Antifa can run riot because it will be hard to enforce the Klan Acts.”

    Do you listen to yourself?

    1. But read the rest of the post, plus his post above!

      Brett has a mask, uses it, thinks mandates are probably legal and justified, and thinks Blackaman’s analogy is dumb.

      1. Sure.

        Whatever else, Brett is not stupid.

        1. …What does that say about Blackman…

          1. Josh candidly admitted he’s empathy challenged.

        2. You know, I was mostly joking about that, I don’t think the left even thinks about the fact that the Antifa are legally indistinguishable from the KKK, and could be gone after under the anti-Klan acts. They’re on the left, so they’re somehow the good guys.

          1. I thoroughly disapprove of antifa’s methods. I think that when members of antifa commit crimes, they should be prosecuted.

            That said, on the merits, the KKK fought for racism and white supremacy, whereas the antifa fights to end fascism. The two are not morally equivalent.

            1. “antifa fights to end fascism”


              “Sir Humphrey Appleby : East Yemen, isn’t that a democracy?

              Sir Richard Wharton : Its full name is the Peoples’ Democratic Republic of East Yemen.

              Sir Humphrey Appleby : Ah I see, so it’s a communist dictatorship.”

            2. “whereas the antifa fights to end fascism. The two are not morally equivalent.”

              Oh, give me a break. Historically, the only reason the antifa fought fascism is that they wanted a communist dictatorship instead. This was NOT a case of “the enemy of my enemy is my friend”.

              Today their working definition of “fascism” is “anybody I want to punch”.

            3. “The two are not morally equivalent.”

              Totalitarianism is bad. It doesn’t matter whether it is the Schicklgruber version, the Jugashvili version, the Pinochet version, the Pol Pot version, or any other version.

              I don’t have any objections to revolutions … unless you live in a democracy and can vote instead of revolt. Which we do/can. There is just no excuse in 2020 America for political violence – not by the Bundys at Malheur, not by Antifa in the CHAZ/CHOP.

              1. It’s not a defense of one bad thing to say a different bad thing is even worse.

  12. Just as an intellectual exercise, consider for a moment the CDC response to EVERY OTHER virus in the world:

    Oddly enough, for the real flu;
    “Unvaccinated Asymptomatic Persons, Including Those at High Risk for Influenza Complications
    No recommendation can be made at this time for mask use in the community by asymptomatic persons, including those at high risk for complications, to prevent exposure to influenza viruses.”

    But for the magical COVID;
    “In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.
    Cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure.
    The cloth face coverings recommended are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.”

    So “science” has concluded that “cloth face coverings” are effective against one and only one virus in the world.
    I call bullshit.

    1. So…you think all these people are lying to you?

      Recent Studies:
      Rothe C, Schunk M, Sothmann P, et al. Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany. The New England journal of medicine. 2020;382(10):970-971. PMID: 32003551external icon
      Zou L, Ruan F, Huang M, et al. SARS-CoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients. The New England journal of medicine. 2020;382(12):1177-1179. PMID: 32074444external icon
      Pan X, Chen D, Xia Y, et al. Asymptomatic cases in a family cluster with SARS-CoV-2 infection. The Lancet Infectious diseases. 2020. PMID: 32087116external icon
      Bai Y, Yao L, Wei T, et al. Presumed Asymptomatic Carrier Transmission of COVID-19. Jama. 2020. PMID: 32083643external icon
      Kimball A HK, Arons M, et al. Asymptomatic and Presymptomatic SARS-CoV-2 Infections in Residents of a Long-Term Care Skilled Nursing Facility — King County, Washington, March 2020. MMWR Morbidity and mortality weekly report. 2020; ePub: 27 March 2020. PMID: 32240128external icon
      Wei WE LZ, Chiew CJ, Yong SE, Toh MP, Lee VJ. Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020. MMWR Morbidity and Mortality Weekly Report. 2020;ePub: 1 April 2020. PMID: 32271722external icon
      Li R, Pei S, Chen B, et al. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2). Science (New York, NY). 2020. PMID: 32179701external icon
      Furukawa NW, Brooks JT, Sobel J. Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic [published online ahead of print, 2020 May 4]. Emerg Infect Dis. 2020;26(7):10.3201/eid2607.201595. Link
      Oran DP, Topol Prevalence of Asymptomatic SARS-CoV-2 Infection: A Narrative Review [published online ahead of print, 2020 Jun 3]. Ann Intern Med. 2020;M20-3012. PMID: 32491919external icon
      National Academies of Sciences, Engineering, and Medicine. 2020. Rapid Expert Consultation on the Possibility of Bioaerosol Spread of SARS-CoV-2 for the COVID-19 Pandemic (April 1, 2020). Washington, DC: The National Academies Press. icon.
      Schwartz KL, Murti M, Finkelstein M, et al. Lack of COVID-19 transmission on an international flight. CMAJ. 2020;192(15):E410. PMID: 32392504external icon
      Anfinrud P, Stadnytskyi V, Bax CE, Bax A. Visualizing Speech-Generated Oral Fluid Droplets with Laser Light Scattering. N Engl J Med. 2020 Apr 15. doi:10.1056/NEJMc2007800. PMID: 32294341external icon
      Davies A, Thompson KA, Giri K, Kafatos G, Walker J, Bennett A. Testing the efficacy of homemade masks: would they protect in an influenza pandemic? Disaster Med Public Health Prep. 2013;7(4):413-8. PMID: 24229526external icon
      Konda A, Prakash A, Moss GA, Schmoldt M, Grant GD, Guha S. Aerosol Filtration Efficiency of Common Fabrics Used in Respiratory Cloth Masks. ACS Nano. 2020 Apr 24. PMID: 32329337external icon
      Aydin O, Emon B, Saif MTA. Performance of fabrics for home-made masks against spread of respiratory infection through droplets: a quantitative mechanistic study. medRxiv preprint doi:, posted April 24, 2020.
      Ma QX, Shan H, Zhang HL, Li GM, Yang RM, Chen JM. Potential utilities of mask-wearing and instant hand hygiene for fighting SARS-CoV-2. J Med Virol. 2020. PMID: 32232986external icon
      Top of Page

    2. Longtobefree, there’s plenty of studies from 2020 they’re basing this on. Do you think all those scientists are lying?

      This is how science works – like it or not, current events concentrate research considerably. It happened here, and new sh*t has come to light.

    3. Maybe I’m in an unkind mood this morning, but if you don’t want to wear a mask, I’m fine with it since it could mean one less Trump voter in November. Just try not to infect too many other people on your way out.

    4. Longtobefree, right you are! And they are not only not necessary for most people, but actually harmful to one’s health, and thus why the CDC would not recommend masks for the “real flu.”

      I pity the schoolchildren this fall, if their attendance is conditioned upon getting tested for this virus, having to take the new and unproven vaccine and its boosters as soon as they’re available, and wearing a mask during the school day, at least until the new and unproven vaccine is injected into them.

      (Around here, we call it “organic fertilizer”, if it’s seasoned and herbicide-free.)

  13. That’s not EVERY OTHER virus, that’s just one other virus. Here is what the CDC says about Ebola prevention:

  14. Covid has become too deeply embedded into the general population to the point that attempts to contain the virus are futile. While masks and social distancing can slow the spread of the virus, they can not stop the spread, except in the limited short term time frame.

    A better mid and long term approach is to let the virus spread so that a sufficient percentage of the population develops immunity. It is best spread in the summer months when the virus is weaker (lower viral loads being transmitted). IFR are dropping, due to a combination of knowledge of better treatments, higher percentage of healthy people catching the virus and younger individuals catching the virus.

    Delaying the development of immunity in the general population greatly increases the risk of nasty second wave in the fall/winter when respriatory viruses are typically stronger.

    1. Remember “flattening the curve”? That’s been the plan all along: Just slow the spread enough that the bad cases didn’t overwhelm the hospitals. Well, we flattened the heck out of the curve, but now they’re moving the goal posts on us.

      1. A good analogy to my point – the reason the annual flu doesnt infect the entire population is that there are sufficient percentage of the population that has either natural immunity from the flu or had a flu shot. When the chain reaction starts, the process if infecting the population, there are enough dead zones “immunity” that the chain reaction keeps petering out as the legs of the chain reaction keep hitting the dead zones.

        The same thing will work to slow covid – However the current approach – trying to isolate and contain the virus is the short term solution, It going to make the mid term and long term solution much more difficult.

        1. Flu shots have like a 30% efficacy.

          They are another scam perpetuated by Big Flu.

          1. Even with 30% efficiency with the annual flu shot, plus individuals with natural immunity, means the immunity in the general population is only 20%-30% for the typical flu. The flu typically only infects less than 10% of the population. It only takes a small level of immunity in the population to act as “chain reaction control rods” to limit the infection rate to a low percentage.

            This virus is approximately 3-4 more deadly than the typical flu. On a per capita basis, we are still way below the death rates for the 1957 flu and the 1968 flu.

            The experts are treating covid as if it 20-30x more deadly than the normal flu.

            1. I suspect the initial over-reaction was based on a concern that it might really be a biowarfare agent.

              Then it just became politically infeasible to back down, because in politics it’s just not possible to say, “Look, saving lives is an important goal, but it can’t be our ONLY goal!”

              1. I mean, some states did say some lives are worth the economy.

                But they screwed up the risk mix, and for some states at least they’re having to re-close, getting neither economic nor health benefits.

                I agree that this risk analysis is more art than science (science is an input, but not the only one). I don’t envy any of our governors their role.

                I’m looking at NYC myself, who is reopening somewhat now, and seeing if they’re in the same boat.

                1. I’m not sure that it’s a case of “having to” reclose. Like I said, it’s politically difficult to say that saving lives can’t be our only goal, we really do have to balance competing interests, such as having an intact economy. If only because poverty kills, too.

                  I think what’s going on here is that people are being stampeded to confuse rising positive test results with the pandemic getting worse, when it’s really just a result of increasing numbers of tests being conducted. The death rates are still dropping, and though that’s laggy by a few weeks, it really is the valid measure of severity.

                  Random tests in various cities show that anywhere from 5-20% of the population have circulating antibodies against Covid 19, and you know quite well these aren’t people who were just released from a hospital. They’re people who had no symptoms or or such mild ones they thought they had a common cold.

                  This virus has penetrated the population to such an extent, most places, that any time you test somebody you’ve got a several percent chance of getting somebody who’s had it. You double the number of tests you conduct, you double the number of positive tests.

                  That’s the big point here: Active cases aren’t going up, the number of people being tested are.

                  1. Brett, are you arguing that a bunch of people dying of the virus wouldn’t have pretty big economic impacts?

                    I’m not saying the left is super correct here – maybe they are getting stampeded. But your argument is as much ipse dixit as any you put on them. And they at least cite some numbers.

                    Active cases aren’t going up, the number of people being tested are.
                    That’s…bullshit. Presidential bullshit, but bullshit nonetheless. Our testing rate isn’t even going up as fast as the infection rate in the current hot spots (AZ, OK, CA, FL)

                  2. Active cases aren’t going up, the number of people being tested are.

                    I would have thought you were too good at arithmetic to say this.

                    1. Why?

        2. the current approach – trying to isolate and contain the virus is the short term solution, It going to make the mid term and long term solution much more difficult.

          How does raising the infection rate and thus hurrying to endemic status help with the medium or long term?

          Texas hospitals don’t look great for not being overwhelmed atm, BTW.

      2. The curve can unflatten. We can just try to keep it flat

    2. Joe_d,

      Interesting idea.

      So are you willing to lead the way and spread the virus to your family, friends, neighbors, co-workers, churchmates etc.?

      1. I am wearing a mask 100% of the time when I am in an environment with moderate to high risk of transmission. I do not wear a mask where the risk of transmission is low, which is the fast majority of environments, including grocery stores, most of retail businesses, all the outdoor environments.

        Masks provide virtually zero additional benefit/reduction in risk of transmission in environments where the risk of transmission is low.

        1. Sure, but symbolism also matters.

        2. What?!?

          Then how can you contribute to, “a better mid and long term approach. . . to let the virus spread so that a sufficient percentage of the population develops immunity?”

          Seems like you’re doing the exact opposite.

          1. This virus is approx 3-4x more deadly than the average flu. Its not 20x-30x more deadly. It is still below the per capita death rate of the 1957 flu and the 1968 flu.

            It will get much worse if immunity is not developed. The current approach is going to make it worse since efforts to develop immunity are considered too dangerous. Yet this approach is essentially advocating for the evolution of the human race to a point we can only survive in a sterile environment

            1. This virus is approx 3-4x more deadly than the average flu.

              No. That’s a distortion. It’s comparing the IFR for coronavirus to the CFR for flu.

  15. With all due respect I dont understand this argument.

    The Obamacare case was about federal law, not state and local law. Indeed, it revolved around the federal commerce clause. The 10th amendment notes that powers the federal government has are reserved for the state.

    You can make an argument to overrule Jacobson. It would be difficult to do so while also effectively forcing vaccinations to maintain herd immunity, but you can do it. And maybe you should. But that’s a wholly separate question! The Obamacare case strengthened the argument that the states have the power.

    A theory that I thought up was that maybe what the P&I clause says is that all limitations of federal power expressly in the constitution apply to the states. Not just the amendments. In that case, one could read the limitation of the commerce clause in the P&I clause to apply to the states.

    But I’m a lowly undergraduate in a completely unrelated field and a more appropriate theory is that anything I develop is dumb and should be avoided at all costs.

  16. I sense that Prof. Barnett was the only friend Josh Blackman had for a period of years.

    But then Josh finds the Volokh Conspiracy’s ardent fan base.

    A clinger love story. Put the producers of the “Left Behind” films on it.

  17. Intrinsically, people understood there was a difference between forced not to do something, and being forced to do something. The former was common enough. The latter was thankfully rare. And this concept permeated all aspects of society.

    You know, this “difference” actually doesn’t make much sense, no matter how much conservatives rage about it. It might, for some versions of “forced” but here using that word obscures the situation.

    The “force” involved was a financial penalty. That’s all. Not imprisonment, not being labelled a felon, nothing like that. So here’s the point. The tax code is stuffed full of credits for doing various things. A credit for doing something is indistinguishable from a penalty for not doing it. All the nitpicking and pettifoggery and resume-building about a choice of words is nonsense.

    1. How do broccoli objectors and maskless patriots handle stop signs, pants (in public), red lights, center lines, crosswalks, and the other tools of the Deep State?

  18. Here are hundreds of fans of Prof. Blackman’s musings on mask mandates — and conservatism in general — conducting a sing-a-long with the bluegrass band at a right-wing rally in Washington (state).

    Some of the lyrics:

    Mask wearers, what we gonna do?
    Inject them with the Wuhan flu

    Dr. Fauci, what we gonna do?
    Chop him up like the Saudis do

    CNN, they spread fake news
    They controlled by the ‘you know who’s

    Journalists, what we gonna do?
    Chop them up like the Saudis do

    Chinese people, what we gonna do?
    Nuke ’em up like in World War II

    Obama, what we gonna do?
    Inject him with the Wuhan flu

    Hillary Clinton, what we gonna do?
    Lock her up like we used to do

    Scientists don’t say what’s true
    They don’t like the red, white and blue

    Scientists, what we gonna do?
    Feed ’em to the bears like the Chechens do

    Who says conservatives have no sense of humor?

  19. No states may be enforcing mask mandates by pursuing individuals, but North Carolina is citing and fining businesses who are not enforcing the mask mandate. Although in a handful of counties, the county sheriffs have announced that they will not enforce the mandate.

    In North Carolina, the mandate is in the form of an executive order from the Democratic governor, that masks must be worn in public where social distancing is not possible. The Republican lieutenant governor has gone to court to invalidate the executive order. Fun times.

  20. Does being forced to wear a face mask unconstitutionally limit freedom of expression?

    1. No.

      This has been yet another episode of Simple Answers to Stupid Questions.

  21. I think the best argument against masks is that they protect other people. About half the population is hateful and hostile to the other half. Why protect someone who would put you in a gulag if they could — will put you in a gulag when they can?

    You want people to protect you from harm, be friendly and kind and tolerant and humble and forbearing of anger, force, violence and wrath.

    You spent so long modeling bad behavior. Everyone learned it very well. Now you want a favor….

  22. Your broccoli analogy is inapposite. Wearing a mask primarily protects others, rather than oneself, and is the controlling fact here. You will get many screaming at you in comments over this, quoting the relevant research from as far back as January, but I prefer this summary in the “The Economist” on 28th May:
    “People think of masks as protecting them from nasty stuff in the air. They can do that. But in the case of covid-19, their more important job is to protect others from an infected wearer. That is because of one of the peculiar characteristics of this disease: it seems likely that infection by people who have not, or not yet, developed symptoms accounts for about a third to a half of cases. So even if everybody with symptoms stays at home, the virus will still spread. Social distancing can help, but is hard to maintain in crowded places. Masks block the respiratory droplets that carry the virus, so make risky situations safer.”

    The Economist has a good explanation here:\
    “Masks probably slow the spread of covid-19…
    But wearing one is mainly an act of altruism.”

    Such partisan denial of something by now well-known illustrates how poisonous the political atmosphere has become in places like Britain and the US:
    “Reluctant Britons and Americans may only embrace masks in the face of fines, like those being levied in Singapore or Qatar. But the evidence suggests that wearing them helps to limit the spread of the virus, mainly by protecting others. According to one study masks catch 75% of droplets from the wearer’s mouth; even the humble tea towel manages 60%. Though many Westerners associate masks with infectious people or hypochondriacs, well-mannered Asians routinely wear them to protect others. More data are required, but mask-phobic countries have fared worse in the pandemic than mask-loving ones. When future generations question why, they might find a clue in the photographs.”

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