In a scorching piece at LewRockwell.com, Judge Andrew Napolitano slams lockdown rules that infringed on Americans’ constitutional rights. He writes:
Sadly, we are approaching a time in America during which our elected public officials will assault the liberties we have hired them to protect. Whatever the cause, the government will soon blame its failures to contain a virus on a small portion of the population and then impose restrictions on the inalienable rights of all of us.
We cannot permit this to happen again.
During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons, he was rebuked afterward by a unanimous Supreme Court. The essence of the rebuke was that no matter the state of difficulties — whether war or pestilence — the Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort, in good times and in bad.
Whether COVID-19 is coming back or not, our central planners have panicked. We do not have a free market in the U.S. in the delivery of health care; rather, we have thousands of pages of statutes, regulations and controls at the federal, state and local levels.
Those controls were revealed as manifestly deficient the last time around. The feds were so protective of their control of health care — an area of governance that the Supreme Court has ruled is nowhere delegated to them in the Constitution and, but for their power to tax those who defy them, is nonexistent — that they insisted that only the Centers for Disease Control and Prevention in Atlanta could be trusted to test for the virus.
It took weeks of begging by governors and mayors and health care professionals for the feds to relent. Of course, once they acknowledged that labs throughout the country were as competent as theirs, they realized that their incompetence had deprived all physicians as well as most private sector and state government-owned labs of the test kits themselves.
We all know how central economic planning diminishes freedom, produces scarcity and adds to the cost of products. Now we know that central micromanagement of health care kills people.
But these mayors and governors were not to be outdone by the feds in their totalitarian impulses. Many of them issued decrees that are as profoundly unconstitutional as Lincoln’s efforts to silence dissent.
They ordered the closing of most businesses and nearly all retail establishments. They acted as if they, and not we, owned our faces. They shuttered religious institutions. It took a year for the courts to interfere partially with this madness.
The fulfillment of these totalitarian impulses put millions out of work, closed and destroyed thousands of businesses and impaired the fundamental rights of tens of millions — all in violation of numerous sections of the Constitution that the totalitarians swore to uphold.
And now they are threatening to do this again.
The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. The Due Process Clause of the 14th Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault. The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owner’s chosen lawful use of his property.
Taken together, these clauses reveal significant protections of private property in the Constitution. Add to this the threat of punishment that accompanied these decrees and the fact that they were executive decrees, not legislation, and one can see the paramount rejection of basic democratic and constitutional principles in the minds and words and deeds of those who have perpetrated them.
Add to all this the protection in the First Amendment of the rights to worship and associate, and elsewhere the judicially recognized right to travel, and it is clear that these nanny state rules were profoundly unconstitutional, indisputably unlawful and utterly unworthy of respect or compliance.
Action Line: If your governor went wild with lockdowns, ruining your business, or infringing on your freedoms, it’s time to look for a better America.
