Quarantine Typhoid Mary?

Dear Mark:

I am sorry to disappoint you, but, I agree with Judge Andrew Napolitano, and enthusiastically so.

You attribute this to him: “the states can force someone to wear a mask  IF they are known to be contagious” (my emphasis).

Now, obviously, the common cold is contagious, but it is not serious; no quarantine justified there. Either the Judge stated this in the … material, or, he thought it so obvious that it need not even be mentioned.

What’s your view on Typhoid Mary? Typhoid is both very serious, and contagious. Surely, the government was justified in compelling her to isolate. Well, IF covid is that serious, it was certainly widely thought to be in March of this year (you don’t say when the Judge made this statement), in my view the govt would be justified in quarantining people.

I am BCCing the Judge on this. He’ll respond if he wishes to do so.

Best regards,


From: Mark Durgin

Sent: Wednesday, July 01, 2020 8:06 AM

To: Walter Block <walterblock@business.loyno.edu>; walter block <wblock@loyno.edu>

Subject: Fwd: Is the judge slipping?

Hi Walter, I hope you are staying sane these days.  See below, maybe you can help.  I sent the below to Lew, but mailbox is full:

Would love to reach Judge Nap directly and get him to further elaborate.

Would love to see your responses to this posted as well:

– mwd

From: Mark Durgin

Date: Wed, Jul 1, 2020 at 9:04 AM

Subject: Is the judge slipping?

Hi Lew; I’m hoping someone among your crowd of luminaries can talk to the judge for me.  I have no way to reach him.  Below is a link to an interview with Judge Andrew Napolitano on “America’s Newsroom” hosted by Fox News’ Melissa Francis.  Ms. Francis starts by showing the clip of Nancy Pelosi saying a federal face mask mandate is long overdue.  She then questions our favorite judge regarding whether the government has the authority to do this.

Napolitano starts with stating the Federal Government has no authority to issue laws regarding public health / safety, because of the 10th amendment language reserving all matters not enumerated in the Constitution to the States, or to the People.

Then, Napolitano says that the states can force someone to wear a mask “if they are known to be contagious”, …. But this would (paraphrased) require the state legislature to first pass a law… because a governor does not have the authority to make laws.

Where does he come up with the legal underpinnings that if someone is “known to be contagious” the state can (assuming that legislature passes a law) mandate the mask or maybe even quarantine that person?

The 5th Amendment restricts the Fed Gov, stating that no one can be deprived of their liberty without due process of law, which to me means liberty to freely move about and conduct their life, whether that be going to the library, going to the grocery store, going for a walk, working your job, or conducting the operations of one’s business, and on down the line.  The 14th Amendment further states that same language, restricting State governments.

Supposing he is right and I don’t understand my laws, I am guessing that the burden of proof is on the government to prove this person that they want to mandate mask-wearing is contagious. But again, contagious with what?  If this is the case, the government could then mandate someone for having the flu “because they are contagious” as Napolitano claims:

“if a person is known to be contagious, the state could require that person to be quarantined or wear a mask”.

The coronavirus and the flu, and even the common cold, (among many other things for which one can be contagious) has been known to lead to death in certain individuals.

Napolitano mentions that Fed/State Gov’s can mandate mask-wearing on their property (like at the Post Office, or in a Federal COurt Building etc).  The host Ms. Francis then brings up the obvious point, that if this is in fact true, then a City Council could just pass a law saying “no one can walk on our sidewalks or streets without a mask”.  When questioned, the city council could state they reviewed medical guidance by the CDC and determined it was required because “the coronavirus is dangerous, has shown to be contagious leading to death” etc…

My point here is I think that Napolitano is going down a very, very slippery slope. I was a bit shocked, and very disappointed to hear him say that.

If what he is saying is true, then it seems libertarians have nothing left to argue about.  We are cooked.

All responses welcome, and you have my permission to post this on your site if you find it useful (please do not share my email address on your site).


Thank you,



2:16 am on August 28, 2020

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