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Your constitutional rights are not violated by mask mandate, legal scholar says

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FORT WAYNE, Ind. (WPTA21) -- We've seen a lot of comments on social media from people saying they have a "constitutional right" not to wear a mask.

Is that true?

"I think we should have a right as to if we should or should not wear a mask. That should be left up to us, not the government," Tonya Whipple says.

Lots of people are expressing that opinion about Governor Holcomb mandating face coverings in an effort to fight the spread of the coronavirus.

Indiana's Attorney General Curtis Hill even weighed in, saying the state legislature needed to give the governor the authority to order masks.

But a constitutional law expert says the legislature already did.

"It has long been recognized, since a 1902 Supreme Court decision, the state executive branch, not just the legislature, can take action to protect people from contagious diseases," a legal expert on the Constitution says.

"It was the legislature that passed the Emergency Management and Disaster law, which gives the governor broad power to take action to protect public health during emergencies. And if a global pandemic that has infected millions of people globally and killed 150,000 in this country in four months' time is not an emergency, what is?" Nancy Marcus asks.

Marcus taught consitutional law at Indiana Tech's law school, and is now in private practice.

"It has long been recognized, since a 1902 Supreme Court decision, the state executive branch, not just the legislature, can take action to protect people from contagious diseases," she says.

"I personally do not agree with it. I think it should be, I think it's unconstitutional. But we have to do what he has ordered. I think the masks are more of a harm than good, but I'm no medical professional. I don't agree with it," Whipple says.

"The droplets have high, high levels of travel, and I think each and every individual needs to be protective. Especially those that have health conditions that are higher risk, it's imperative, along with hand washing," Tyko Williams says.

Marcus acknowledges that health departments may need to do more education about masks, but reiterates that governors have the right to issue emergency orders for them without consulting state lawmakers.

"There's good reason for governors to be the ones to issue orders like this one as governors have done across the country. If we leave it up to legsilatures, action could be delayed significantly, and we may not be able to act quickly enough to keep up with this rapidly spreading, deadly pandemic," Marcus says.

She says if someone becomes belligerent and threatens you about a mask, you have every right to call police.

Corinne Rose

Corinne Rose is a reporter for WPTA.

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