Mellman: Your rights and my nose

My father, of blessed memory, a stalwart civil libertarian who cut his teeth as a lawyer defending people accused of being communists by McCarthyite goons, used to say, “Your rights end where my nose begins.”

The aphorism seems particularly apt at a time when one of the greatest collective threats we face is a pathogen transmitted through the air into our nasal passages.

Anti-maskers and anti-vaxxers claim their rights, their freedom, is being violated by requiring them to don a mask or get a shot.

Former Vice President Mike Pence encouraged this ludicrous line of reasoning last year when he responded to a reporter who asked about maskless people at Trump rallies by asserting a nonexistent constitutional right: “Even in a health crisis, the American people don’t forfeit our constitutional rights.”

The Supreme Court actually decided this issue more than a century ago when Cambridge, Mass., Pastor Henning Jacobson argued that a state law requiring him to be vaccinated against smallpox was unconstitutional. In a 7-2 decision, the U.S. Supreme Court held mandatory vaccination laws were, in fact, wholly constitutional.

As Justice John Harlan wrote, “in every well-ordered society, charged with the duty of conserving the safety of its members, the rights of the individual, in respect of his liberty, may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” 

Further, wrote Harlan, “liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”

In other words, my father was correct — the rights of anti-vaxxers and anti-maskers end where everyone else’s noses begin.

There is no freedom to seriously endanger, no right to infect, others. 

If some refuse to wear masks or get vaccinated, the rest of us have the right to keep them away from our nasal passages at work, at school, in stores and elsewhere. 

A majority of Americans agree. 

Just as COVID-19’s scourge was beginning in early March 2020, we had the privilege of working with a great team to defeat Maine’s Question 1, which would have made it easier for people to evade vaccinations (obviously before there was a COVID-19 vaccine). Seventy-three percent of Mainers voted for strong vaccine requirements. That included majorities in every county in the state. 

More recent polls confirm widespread public support for both vaccination and mask mandates. 

In a Morning Consult/Politico survey, 68 percent favored “federal government officials” making “it mandatory to wear face masks in public spaces,” with 32 percent opposed.

Last week’s Yahoo News/YouGov poll found a lesser but still clear majority, 55 percent, in favor of making it “mandatory to wear masks in public,” while 45 percent opposed.

On the other end of the spectrum, a Hill/Harris X survey asked about a mask mandate if COVID-19 cases “spiked … in your area.” Seventy-four percent favored the requirement in those circumstances, while 24 percent were opposed.

Americans also favor a vaccine mandate. A Covid States Project survey in June and July pegged approval for government requiring everyone to get a COVID-19 vaccination at 64 percent, with 45 percent of Republicans supporting such action. Seventy percent of Americans approve of a vaccine requirement for air travel. 

More than 60 percent support vaccine mandates for federal workers (including members of Congress), teachers, police officers and those working in health care, according to a YouGov survey last week.

Americans recognize our obligation to protect each other and the need for rules and restrictions to accomplish that objective. They know my father was right: Our rights end at the nasal passages of our fellow Americans. 

Mellman is president of The Mellman Group and has helped elect 30 senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for more than 20 years, as president of the American Association of Political Consultants, and is president of Democratic Majority for Israel.