Despite 38 years in the practice of law there are still some things that surprise me about my fellow humans. Last week, in the run-up to the holiday season, my office received two telephone calls from people interested in commencing legal actions against both the state and federal governments.

We always listen patiently and with an open-mind to everyone who approaches us, and we are not timid about potential adversaries who might be formidable. We have represented people and institutions from all over the country and throughout the world. So, we listened.

These potential clients reported that their Constitutional rights had been repeatedly violated. They said that they had been hounded from public places, that the police had been called when they did nothing wrong. They wanted to enforce their “right” not to wear a mask when in public places and asserted that, “As Americans we are free. We have the right to be free. It says that in the U.S. Constitution.”

But the Constitution does not say that people are “free.” It says nothing of the kind. One of the reasons for this is that “free” is too vague a term to have any precise meaning. Another is that my right to be “free” might conflict with what you think your right to be “free” entitles you to do.

In fact, the Constitution only uses the word “free” in three places. Article I, Section 2 mentions the number of “free persons” in connection with the composition of Congress. The First Amendment guarantees the “free exercise” of religion, and the Second Amendment says that a “well-regulated militia” is “necessary to the security of a free state.”

Nowhere does the Constitution, or any other of the foundational documents of our country guarantee your right to not wear a mask when you enter a grocery store. There is no Constitutional or common law entitlement to put your fellow human beings at risk. While you enjoy many freedoms, endangering others is not among them.

The legal principle behind this is clear: every right which you enjoy in our legal system carries with it a corresponding duty. The right to free speech demands that what you say not be defamatory, it may not incite to riot. Free press carries the responsibility of truthfulness. While you are free to own a firearm, you may not fire it at school children. You are free to drink beer, but you are not free to drive a car while drunk. You are free to practice your religion, but if it calls for you to cause the death of those who do not believe as you do, your freedom is curtailed.

Exercising your rights also carries the duty to know what they are. Thinking that you have the right to be completely “free” and do whatever you want shows a fundamental ignorance more dangerous to the country than the pandemic.

People who undertake public office swear to “protect and defend the Constitution of the United States.” I took that oath when I became a military cadet, again when I was commissioned as an officer, again when I was admitted to the bar, and again when I entered the U.S. Attorney’s Office in Washington. It is a serious promise to a precious document and to the country built upon it. Defending the Constitution is a duty owed by every person who is protected by it. Protecting the Constitution is a duty owed by every person defended by it.

So, I declined to represent these people in a lawsuit to enforce their imaginary rights. They do not know their rights or the limitations on their rights. They are dangerously ignorant and we should have taught them better. After all, if you do not care enough about your country to understand your rights, and to know what they are, then you have no rights. You have voluntarily given them up. You have ignored the Constitution and the rights it protects by failing to protect it and others. When you refuse to weak a mask in these horrible times when thousands die each day, you are not entitled to bring a lawsuit against those trying to protect you and us all.

However, you do still have the right to do the right thing, the human thing, the Americana thing. Wear the mask, respect your country, your rights and the rights of others.

And if you succeed in finding a lawyer who is willing bring such a suit, shame on both of you.


Meredith attorney Robert E. McDaniel began his career as a federal prosecutor in Washington, D.C. During his career he has represented clients from 21 states and more than a dozen countries.

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(1) comment


Take the below, "with a grain of salt" as-they-say. This attorney is FOR the wearing of masks to pre-vent whatever might happen to others. He wrote that: " You are free to drink beer, but you are not free to drive a car while drunk." to PRE-vent what MIGHT happen to others. But see The "Oregon Law Review" of December 1953, page 1 for the definition of a license is the restrain of a right WHEN you are a proven threat to another. In other words NOT that of what MIGHT happen, BUT that of what has actually happened. Like if you've been drunk in the past and had driven into a tree on the side of the road, then to restrain you for NOT to next time maybe crash into an oncoming car.

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