“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.”
— Ex parte Milligan, U.S. Supreme Court (1866)
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 in the name of public safety, he was rebuked by a unanimous U.S. Supreme Court. The essence of the rebuke is that no matter the state of difficulties — whether war or pestilence – the U.S. Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort.
This basic principle of American law — our rights can only be interfered with by means of due process — is being put to a severe test today in most American states.
Here is the backstory.
The coronavirus pandemic, which ravaged portions of China and Italy, has arrived in the United States and our central planners have panicked. We do not have a free market here in the health care delivery system; rather, we have thousands of pages of regulations and control at the federal, state and local levels.
That control was revealed as manifestly deficient and ignorant when the virus struck. The feds have been 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, would be nonexistent — that they insisted that only the Centers for Disease Control and Prevention in Atlanta can be trusted to test for the virus.
It took weeks of begging by governors and mayors for the feds to relent. Of course, once they acknowledged that labs throughout the country are as competent as theirs to conduct the tests, 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 and adds to the cost of products. Now we know that central micromanagement of health care can kill people.
But these mayors and governors were not to be outdone by the feds in their totalitarian impulses. Many of them, particularly in the Northeast and the West Coast, have issued decrees that are as profoundly unconstitutional as Lincoln’s efforts to silence dissent.
The governors of New York, New Jersey, Pennsylvania and Connecticut have all issued decrees closing most retail establishments, particularly all restaurants, bars and theaters. The governor of New Jersey is threatening to ban all travel after dark. And, the mayor of New York City is threatening to ban all travel all the time.
The fulfillment of these totalitarian impulses has put more than 1 million folks out of work, closed thousands of businesses and impaired the fundamental rights of tens of millions of persons — all in violation of numerous sections of the Constitution.
The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. And the Due Process Clause of the Fourteenth 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 the significant protections of private property in the Constitution itself. Add to this the threat of punishment that has accompanied these decrees and the fact that they are 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 right to associate and the judicially recognized right to travel — both of which are natural rights — and it is clear that these nanny-state rules are unconstitutional, unlawful and unworthy of respect or compliance.
Why is this happening? Throughout history, free people have been willing to accept the devil’s bargain of trading liberty for safety when they are fearful. We supinely accept the shallow and hollow offers of government that somehow less liberty equals more safety.
This happened here with the Alien and Sedition Acts in the 1790s when the Federalists feared a second revolution, during the Civil War when Lincoln feared dissent and Congress feared defeat, during World War I when President Wilson suppressed the speech he hated and feared, and during the Great Depression when FDR feared economic calamity and seized property without compensation. And after 9/11, fearing another attack, Congress secretly crafted the Patriot Act’s circumvention of the Fourth Amendment and creation of the total surveillance state.
This sordid history came about when the public was fearful of the unknown and trustful of the government’s bargain. But the safety offered for the liberty sacrificed never came to pass.
Moreover, liberty is natural and personal. You can sacrifice yours, but you cannot sacrifice mine. The natural nature of personal liberty — Jefferson’s Declaration of Independence calls our rights inalienable and Madison’s Ninth Amendment reflects their nature as limitless — insulates their existence and exercise in a free society from totalitarian and even majoritarian interference.
Today, the fear of contagion gives government cover for its assaults on freedom and poses a question the government does not want to answer: If liberty can be taken away in times of crisis, then is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of politicians in power?
• Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. He is the author of nine books on the U.S. Constitution.