During his Friday, May 7, Coronavirus response media briefing, Gov. Jim Justice announced that the statewide mask mandate, imposed via his November 13, 2020 executive order, will end on West Virginia Day.
According to the WVU West Virginia and Regional History Center, “West Virginia Day is a state holiday celebrated every June 20 in the American state of West Virginia. The day celebrates the anniversary of the creation of the state as a result of the secession of several northwestern counties of Virginia during the American Civil War.
In 1861, as the United States itself became massively divided over regional issues, leading to the American Civil War (1861-1865), the western regions of Virginia split with the eastern portion politically. On June 20, 1863, the western region was admitted to the Union as a new separate state, initially planned to be called the State of Kanawha, but ultimately named West Virginia.”
Now, nearly 160 years later, the United States is every bit as divided as it was at the height of the Civil War. And the statewide mask mandates imposed by governors across the nation have served to intensify that division. Conspiracy theories, propaganda, online bullying and public shaming are but a few of the fear tactics which have been used by those on both sides of the argument.
It has been a 14-month battle of medical science and constitutional freedoms, public health and personal liberties. Those who believe government has no authority to tell them what to do with the outside of their body, also believe it is the government’s moral imperative to tell a woman what to do with the inside of her’s. Those who believe government has no moral imperative to tell a woman what to do with the inside of her body, also believe government has the right to tell citizens what to do with the outside of theirs. But more than that, the debate over masks has become another brick in the wall of us against them.
Me against you…
Shortly after Justice issued the November 13 mandate, dissatisfied West Virginians took to social media to express their views.
One such comment read, “Your mask mandate is illegal. You’re [sic] threatening to have people arrested is not only illegal, but an act of tyranny. Remember, you work for the people and not yourself. Maybe we should start a petition to have you impeached.”
Whereas a comment in support of the governor’s order read, “Good job, Big Jim, We don’t often agree politically, but you did the right thing here. More of us appreciate this than you think.”
On Friday, November 20, the Greenbrier Valley Medical Center posted the following statement to their Facebook page: “Attitudes may change, but the science remains the same. Mask wearing saves lives. Keep doing what’s right! #MaskUp for your safety and the safety of those around you.”
On Saturday, November 21, the Greenbrier Valley Medical Center lost a registered nurse to COVID-19, one of nearly 600,000 American deaths thus far during the pandemic.
State leadership was not exempt from the debate, as West Virginia Attorney General Patrick Morrisey was also publicly critical of Justice’s mandate.
In a comment made on November 18, Morrisey said, “We need to both protect the public health and our constitutional rights. I believe in West Virginians and have faith that our citizens don’t need threats of jail time to convince them to do the right thing and pull together to tackle this virus. Heavy-handed threats of criminal penalties are not the way forward, especially through an executive order that the Legislature has not approved.”
Questions quickly arose as to whether the law was on the governor’s side. The short answer was yes.
Item 11 of Section C, Article 5 of the West Virginia Code states, “So long as a state of emergency or state of preparedness exists, the Governor has and may exercise the following additional emergency powers: To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.”
In other words, actions such as mandating the use of face coverings while in public buildings during a declared state of emergency, and while in the midst of a global pandemic, are within the power and authority of the governor.
However, arguments have certainly been made to the contrary. One such argument states that “such powers are not granted by the federal constitution, and that the constitution shall never be modified or suspended.”
This is a flawed argument. The constitution has been called a living, self-healing document. It was created in such a way that it can continually be made better as the needs of society evolve. Simply put, it is the tool by which we are able to build a “more perfect Union.”
In fact, the United States Constitution has been modified on 27 separate occasions.
When the possibility is raised of the government “taking our guns,” it is alluding to our “right to bear arms,” which was a right granted to citizens the second time the constitution was modified. (The first modification granted citizens the right to speak freely.)
With regard to the constitution “never being suspended,” history begs to differ. Over the course of two centuries, no less than three different presidents suspended the writ of habeas corpus. This has been a fundamental right of Americans since before the nation gained independence. It is not a right afforded through an amendment; it is written into the constitution-proper. (Article One, Section Nine.)
Another argument raised is that “once government takes away rights, they will never give them back.”
Again, this argument is flawed.
Those who are imprisoned for the commission of a crime have their right to freedom taken from them. Upon completion of their sentence, their right to freedom is restored. A century ago, women did not have the right to vote in presidential elections. They were granted that right in 1920. Also that year, the right to consume alcohol was revoked. That right was later given back to Americans in 1933.
One year shy of a decade later, Executive Order 9066 stripped Japanese Americans of essentially all of their rights. The order was rescinded in 1945, and their rights were restored.
In 1865, the 13th modification to the constitution granted people of color their freedom. Within three years, the “Jim Crow” laws had all but taken that freedom back. It took the better part of the next 100 years to ensure the civil liberties of all Americans.
Any right granted is one which can be taken. Any right taken is one which can be returned. While the United States may very well still be in its adolescence, the nation has developed a long history of at least trying to correct its mistakes, even if it rarely learns from them.
There are also those who believe that Justice’s, or any governor’s, mandate to wear a face covering is a violation of their rights under the 4th Amendment.
This is, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The question that must be posed here is “where in the constitution does it state that an American citizen must cover their genitalia while in a public setting?”
To put that into perspective, there were laws making it a criminal offense for a mother to publicly bare her breast to feed her child in several states as recently as July of 2018.
The preamble of our constitution grants all citizens the right of “life, liberty and the pursuit of happiness.”
Fewer things make a crying infant happier than the freedom to be permitted to eat.
Beyond the constitutionality, it appears Gov. Justice may have had the weight of federal Supreme Court precedent on his side, as well.
In 1905, in the matter of Jacobson v. Massachusetts, the Supreme Court ruled in favor of states, upholding their right to enforce vaccination requirements. In this case, the vaccine in question was intended to prevent the spread of smallpox.
In 1927, yet another precedent was set in the matter of Buck v. Bell. In this situation, the court ruled to uphold the legality of the forced-sterilization of “feebleminded” and “promiscuous” women and girls “for the protection and health of the state.”
Although June 20, West Virginia Day, will mark the end of the statewide mask mandate, the debate will rage on. The damage has been done and the division will remain. History will judge this generation’s elected leaders on a tilting-scale of extremes: abuse of power or failure to act.
“So that’s the date we’re going with,” Justice said, after his announcement. “Naturally, it will still be your choice, when you’re in public, whether you want to have a mask on or not. But the mandate will be lifted.”