Constitutional Rights Under Siege “The people never give up their liberties but under some delusion.” (Edmund Burke, Speech at the Meeting of Buckinghamshire, 1784)
America was not constructed upon the principle of national security or the power of national emergency; America was built upon the principle of liberty. Our founders understood the eternal and essential nature of the principles of liberty and believed that the preservation of these rights was more important that life itself. Our founders were intimately familiar with pandemics, viruses, and plagues. Yet not one word can be found in the Constitution about plagues or pandemics being used by the government to limit the Bill of Rights.
The current application of state and local authority to mandate the closure of businesses and require the people to restrict their activities to a list of government approved venues under the threat of force and punishment, is antithetical to everything America was built upon. These orders are arbitrary, deny due process, and are rife with unbridled discretion. A shelter in place order that requires places of worship to close, where a finite number of people attend for less than a few hours once a week, but then claims that Wal-Mart and liquor stores, where a limitless number of people come and go every day may remain open, is completely arbitrary. The government’s exercise of authority in these shelter in place orders to pick and choose which businesses can stay open and which cannot is, by definition, arbitrary and capricious. And arbitrary and capricious acts of the government are unconstitutional.
In their attempts to “ensure enforcement” of their orders, governments have disregarded due process, evidentiary rules, and the rights of the people to be innocent until proven guilty. As these orders stand, it is up to individual enforcement agents to make the determination of what is proper evidence of compliance and what is evidence of a violation. This is referred to as “unbridled discretion” and has been held by American courts to be fundamentally unjust and unconstitutional. Governments across America are using the pandemic to limit and restrict First Amendment, Second Amendment, Fourth Amendment, Fifth Amendment, and Fourteenth Amendment protections. In addition, the Constitutionally protected right of mobility between states is being infringed. Let’s consider each of these…
First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Every Constitution of every State in the Union, as well as the U.S. Constitution, acknowledges the rights to freedom of religion and to peaceably assemble as fundamental rights. These rights are described as “inalienable rights” or “natural rights” meaning they do not come as permissions from governments but pre-exist all law and government. These rights are not the products of governments. To the contrary, governments exist to secure these rights for the individual. Inherent in the securing of these rights is the prohibition against government defining the parameters of these rights. When the government can arbitrarily decide that the only “legal” assembly is one of ten people or less, there is no longer a right to peaceably assemble or to freely exercise religion.
One of the most essential reasons for the right to peaceably assemble is that the power of assembly drives the right to petition the government for a redress of grievances. It is a truly despotic government that can create unjust and unconstitutional activity and then also possess the power to set the limits and parameters upon which the people can protest those laws. The very same can be said about the right to freedom of religion. When a government can tell a body of people when, where, and how many can “legally” meet in their church, that government is defining religion and that is antithetical to everything that America is founded upon. What is even worse, these shelter in place orders have also determined that the definition of freedom of religion can be relegated and confined to an internet broadcast and all those who are unable or unwilling to comply are threatened by force of government to have no assembly whatsoever.
Second Amendment A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
Under the guise of “non-essential businesses,” “emergency powers,” or simply by furloughing or reducing staff in the background checks department, governments show the willingness to limit Second Amendment rights. Mayors ban gun sales. Governments make no personnel available to process background checks, delaying gun sales indefinitely. Some simply shut down all gun sale businesses entirely.
Fourth Amendment – Privacy and Protection against unreasonable searches and seizures The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Few protections are more American than the right to privacy against coerced, compelled, secretive, or subversive invasion. The government itself has operated like a virus during this pandemic panic, infecting our minds and bodies, monitoring our speech, association, and movement with tools of surveillance unthought-of to the founders. Also, at issue is medical privacy, which has been reduced to a memory. Discussion has already begun regarding the possibility of “vaccine passports.”
Fifth and Fourteenth Amendments - Private Property and Due Process No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Stay-at-home orders deprive you of your profession, occupation, business, and property, without any due process of law at all beyond an executive order. The protection for our right to make a living arises from the Fifth Amendment right to property. Yet, governments across America violated the Fifth Amendment each time they restricted the opportunity of business owners and their employees from pursuing their livelihoods and engaging in a free market of commerce. Shutdown orders, curfews, reduced capacity, and stay-at-home orders are all methods of limiting an individual’s right to earn a living. A paycheck is property.
A government’s arbitrary determination on which businesses can stay open and which ones cannot is tantamount to a taking the property through the use of regulations. This is a form of seizure of property. There is no appeal mechanism in place for the business owner to challenge the government’s arbitrary determination to close or limit their business.
The political and professional class ensconced in its work-from-home environs fails to appreciate the hardship this imposes on working people. Labor lost can never be recovered. Even if the government provides money, it is unable to compensate for the experience lost and the sense of purpose and value damaged.
Freedom of movement The freedom of movement in the U.S. is governed primarily by the “privileges and immunities clause” of the Constitution (Article IV, section 2) which states: The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
From this, a right to travel to other states has been inferred and upheld. Since the 1823 circuit court case Corfield v. Coryell, there has been judicial recognition of the freedom of movement as a fundamental Constitutional right. In 1869 in the case Paul v. Virginia, the Court defined freedom of movement as “the right of free ingress into other States, and egress from them.” In the 1982 case of Zobel v. Williams, a majority of the U.S. Supreme Court agreed that the privileges and immunities clause included a right of interstate travel.
{Source: KrisAnne Hall (“Shelter in Place Orders: The Thing of Kings”) and Robert Barnes – Constitutional Attorney}
It goes without saying that we should not only work to restore our liberties and limitations on government but look into reforming the process in which states of emergency can be used. Without significant efforts to push back and reclaim our liberties, lockdowns can and will leave a permanent mark on our system of limited government. What should keep every freedom-loving citizen up at night is not Covid-19 but the disease of authoritarianism that is slowly killing our Republic. Pandemics come and go, but a free society is almost impossible to retrieve once it has been cast into the abyss of subjugation. (American Institute for Economic Research: “The Abuse of Emergency Powers and Lockdowns”; 2/21)
“Liberty once lost is lost forever.” (John Adams in a letter to Abigail Adams in 1775)