Presenting “What good are constitutional rights if they are violated when Americans get sick?”

judge

Image found at washingtontimes.com

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” — Benjamin Franklin (1706-1790)

With the grand kids over this weekend (long story but it’s coronavirus related), I haven’t had a lot of time to write (even though I’ve still got a lot to say, especially on Easter Sunday and during the week of Unleavened bread). So I’m just posting the Washington Times article What good are constitutional rights if they are violated when Americans get sick?.

Since it’s paywalled after three or more readings, the full text is copied and pasted below (sorry, “Times,” but this is important). A lot of you may not want to face the idea that the government is using the COVID-19 pandemic crisis to remove our civil liberties. However…

One of my Fox colleagues recently sent me an email attachment of a painting of the framers signing the Constitution of the United States. Except in this version, George Washington — who presided at the Constitutional Convention — looks at James Madison — who was the scrivener at the Convention — and says, “None of this counts if people get sick, right?”

In these days of state governors issuing daily decrees purporting to criminalize the exercise of our personal freedoms, the words put into Washington’s mouth are only mildly amusing. Had Washington actually asked such a question, Madison, of all people, would likely have responded: “No. This document protects our natural rights at all times and under all circumstances.”

It is easy, 233 years later, to offer that hypothetical response, particularly since the Supreme Court has done so already when, as readers of this column will recall, Abraham Lincoln suspended the constitutionally guaranteed writ of habeas corpus — the right to be brought before a judge upon arrest — only to be rebuked by the Supreme Court.

The famous line above by Benjamin Franklin, though uttered in a 1755 dispute between the Pennsylvania legislature and the state’s governor over taxes, nevertheless provokes a truism.

Namely, that since our rights come from our humanity, not from the government, foolish people can only sacrifice their own freedoms, not the freedoms of others.

Thus, freedom can only be taken away when the government proves fault at a jury trial. This protection is called procedural due process, and it, too, is guaranteed in the Constitution.

Of what value is a constitutional guarantee if it can be violated when people get sick? If it can, it is not a guarantee; it is a fraud. Stated differently, a constitutional guarantee is only as valuable and reliable as is the fidelity to the Constitution of those in whose hands we have reposed it for safekeeping.

Because the folks in government, with very few exceptions, suffer from what St. Augustine called libido dominandi — the lust to dominate — when they are confronted with the age-old clash of personal liberty versus government force, they will nearly always come down on the side of force.

How do they get away with this? By scaring the daylights out of us. I never thought I’d see this in my lifetime, though our ancestors saw this in every generation. In America today, we have a government of fear. Machiavelli offered that men obey better when they fear you than when they love you. Sadly, he was right, and the government in America knows this.

But Madison knew this as well when he wrote the Constitution. And he knew it four years later when he wrote the Bill of Rights. He intentionally employed language to warn those who lust to dominate that, however they employ governmental powers, the Constitution is “the Supreme Law of the Land” and all government behavior in America is subject to it.

Even if the legislature of the State of New York ordered, as my friend Gov. Andrew Cuomo — who as the governor, cannot write laws that incur criminal punishment — has ordered, it would be invalid as prohibited by the Constitution.

This is not a novel or an arcane argument. This is fundamental American law. Yet, it is being violated right before our eyes by the very human beings we have elected to uphold it. And each of them — every governor interfering with the freedom to make one’s own choices — has taken an express oath to comply with the Constitution.

You want to bring the family to visit grandma? You want to engage in a mutually beneficial, totally voluntary commercial transaction? You want to go to work? You want to celebrate Mass? These are all now prohibited in one-third of the United States.

I tried and failed to find Mass last Sunday. When did the Catholic Church become an agent of the state? How about an outdoor Mass?

What is the nature of freedom? It is an unassailable natural claim against all others, including the government. Stated differently, it is your unconditional right to think as you wish, to say what you think, to publish what you say, to associate with whomever wishes to be with you no matter their number, to worship or not, to defend yourself, to own and use property as you see fit, to travel where you wish, to purchase from a willing seller, to be left alone. And to do all this without a government permission slip.

What is the nature of government? It is the negation of freedom. It is a monopoly of force in a designated geographic area. When elected officials fear that their base is slipping, they will feel the need to do something — anything — that will let them claim to be enhancing safety. Trampling liberty works for that odious purpose. Hence a decree commanding obedience, promising safety and threatening punishment.

These decrees — issued by those who have no legal authority to issue them, enforced by cops who hate what they are being made to do, destructive of the freedoms that our forbearers shed oceans of blood to preserve and crushing economic prosperity by violating the laws of supply and demand — should all be rejected by an outraged populace, and challenged in court.

These challenges are best filed in federal courts, where those who have trampled our liberties will get no special quarter. I can tell you from my prior life as a judge that most state governors fear nothing more than an intellectually honest, personally courageous, constitutionally faithful federal judge.

Fight fear with fear.

• 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.

26 thoughts on “Presenting “What good are constitutional rights if they are violated when Americans get sick?”

  1. And where is it written that anyone has the freedom to endanger others or to threaten their lives by their irresponsible actions? That is where disease destroys both life and liberty, especially when the nature of that disease is covert and surruptious. How can those charged with safeguarding life do so when the very people they are charged to protect become unwitting harbors of domestic terrorists? The reason why the rabbis determined that almost any aspect of the divine Torah may be abrogated if life is at risk, is the Torah’s own injunction that “you shall live by them” and not die by them. If insistence on demanding absolute adherence to Constitutional freedoms becomes a threat of death, do we insist upon dying and killing those around us? One may hope that responsible citizens will eschew such all-or-nothing logic. There must be a social contract whereby all are willing to compromise liberty temporarily in order to preserve lives. At issue, then, is how long that temporary period must continue, and by what ingenuity can the cause of it be overcome swiftly. These, then, are the pressing questions. This is how liberty is to be restored when it is compromised by an enemy such as the current plague.

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    • You see, that’s the problem. Because limiting civil liberties is a completely reasonable response to the pandemic while at the same time also putting us in a situation where, after the pandemic has remitted, allowing our governments to *continue* to limit our liberties. This rather famous scene from “The Dark Knight” illustrates my point: https://www.youtube.com/watch?v=8WfRcnF4iZI

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      • I guess Batman knows it’s true, and he’d rather let Harvey be the villain?* It’s an entertaining scene. But then Batman rides off as the perceived villain in the end. I like that ending, too. I was, before arriving in your comments section today, going to post the question: What good are constitutional freedoms when they don’t count in a crowded movie theater on fire where someone wants to tell people to head in a direction where there is no exit? It’s just more challenging to balance these ideas than it can seem at first, if we see rights as absolute.

        Meanwhile, there are other things that have been going on for years and decades that we’re not doing enough to question — if we even effectively can any more. It seems to me we have so effectively transferred wealth upward that the receivers have overwhelming power at this point. Then there is also the matter of “the patriot” act type legislation. And war and war and war. I was a little surprised that you brought this idea up again after your take at an earlier time that you did, sort of brushing it off. Anyway, have any ideas on turning back?

        * The way the movie seems, though, is Batman knows you at least have to try/take a chance. It’s one thing when we’re talking about civics or government in a secular sense as contrasted to when we’re thinking of laws from God; there seems to be yet more weight to morals based on the Bible, however seriously we take the Bill of Rights. (But we probably need to be more flexible there too, which is difficult… not so much difficult for people to bend and break rules but to take them seriously while also looking at the real world around us).

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      • From April 8th

        System Update With Glenn Greenwood: Edward Snowden, Andray Domise, and Cassie King

        This is an example of a news source I often find interesting but don’t always agree with on perspective or, alternatively, optimal communication. A lot of this is largely along lines that have been discussed frequently.* The last segment, though, from 1:29:15 on, is considered and addressed to a lesser degree; it’s informative.

        Somewhere before that ending segment, the “essential workers” at amazon, along with one particular worker, are brought up. I don’t think the host and guest explicitly strung the two thoughts together, though they were certainly pointing this way: How is it okay for work to take place in large groups, but not striking for safety?

        Another, yet more alarming example of disturbing treatment of essential workers is produce harvesters. In one of the press briefings from the Trump administration, Trump (not getting into anything subtle or clear of course) did say “We’re not closing the border” for these people. But they are favoring decreasing their wages, etc.

        One piece on that topic that I’ve seen is from Democracy Now (likely accessible at
        democracynow[dot]com); called something like “essential but expendable.”

        * (not at anything like Fox”news”)

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      • I’ve rather disliked the modern reboot of the Batman character and story. What seems to me missing is the balance provided by an earlier social environment in which a common morality of justice could excuse the vigilantism of an individual based on an evaluation of its moral outcomes. The original Batman coordinated with proper law-enforcement and governmental authorities, much like a licensed private detective, and even became a volunteer private LEO contractor whom the authorities would summon via a searchlight projecting the Batman symbol onto clouds in the sky. Apparently, that version of Gotham City never suffered from perfectly clear cloudless skies when there were criminal threats in operation. Batman’s moral judgment was never in question, because the bad guys were clearly bad and deserving of interdiction and apprehension. Of course, they were subsequently processed by the legal justice system, because Batman never killed anybody. Even the ultimate penalty due to the murderers of his parents (whom as I recall he did encounter at some point) did not occur at his instigation but as a convenient accident that relieved him of moral responsibility while still satisfying moral justice. Hence, he, like other superheroes, was not deemed to be operating outside the law despite what would have to be considered technically a non-deputized vigilante status. Was this a recognition of civil liberty stretched to the boundary limit that interfaced with public authority? Did this liberty even exceed and override such boundaries?

        The Founding Fathers of the USA certainly did apprehend and support the notion that circumstances could exist wherein the locus of authority inherent in ordinary citizens must enable them even to overthrow presumed governmental authority, as notably expressed in the words following the introduction: “When in the course of human events …”. They clearly were invoking a higher moral authority in order to justify such action. Hence it becomes critical to identify the values inherent in such a higher authority and how they guide and constrain moral behavior. In my previous post I cited the preservation of life as the highest value of this authority. The preservation or the restoration of individual and corporate liberty would seem to rank similarly high, albeit secondary. The US Declaration lists thirdly the value of pursuing personal wellbeing (“happiness”) among the truths that it held to be self-evident. It may be necessary from time to time to bring these to remembrance before both the citizens and their governing representatives.

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      • I think my point was that while limiting civil freedoms might be necessary under emergency conditions to insure the health and safety of all citizens, once the crisis has passed, are we so sure that certain governments will relinquish their emergency powers and return all civil liberties? Such a crisis is the perfect opportunity for some cities, states, nations, to use an excuse to further their desires to seize greater controls over their citizenry.

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      • I believe it was Ben Franklin who was asked by one woman at one point whether the Continental Congress had succeeded to reach agreement in establishing a government. Upon being told they had, she asked what kind of government. He answered, “A republic, madam, if you can keep it”. He recognized that it was the citizens who would have to shoulder the responsibility to maintain the government in such a manner that they retained their liberties, in keeping with the principles that rights are inherent in the people rather than granted by the government.

        Therefore no one can rely on their government to “return” or relinquish rights. The citizens must demand to exercise them. It was really the citizens’ responsibility to cooperate in the recent and still-current lockdowns and isolation, and it will undoubtedly be the citizens who must use their best judgement to obtain and respond to good information about the public safety.

        Let us hope that they do not need to resort to the exercise of their 2A rights to reassert their liberties at the proper time. It may be needed, however, to petition for special elections in some cases to remove previously-elected officials who fail to recognize these principles. I imagine it may take shape similarly to some of the recent social movements to establish 2A sanctuaries in states whose governors have overly restricted the ownership, transportation, and use of firearms.

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      • As I now come to think of it, I’ve seen a number of references to a notion labeled “the new normal”. It seems to presume there was something wrong with the old normal. What was wrong, perhaps, was our vulnerability to assault by an external biological agent. If the “new normal” merely implies greater vigilance against such threats, while cautiously continuing to exercise normative liberties, then it is well and good. But if anyone should envision a new normality that constrains those liberties any longer than needed to ensure against deaths from such an assault, then it may become necessary to recall Thomas Jefferson’s observation that “a little revolution, now and then, can be a good thing”. Usually such little revolutions are constrained to the ballot box, at least in the USA. I wonder if the citizenry can be encouraged to be very finicky about accepting any sort of new normality that may be offered in substitute for the old one.

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  2. Napolitano often has good to say, and he had much good to say here too. I could choose favorite parts with which to agree and concerning parts where I’d disagree or, at least, add qualification or caveat. (Really, even alarm.)

    But I will stick with quoting this one part now: When did the Catholic Church become an agent of the state?

    Seriously?

    On a day called Easter, I remember when.

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  3. You read the Washington Times, huh? Hmm. I will sum up my reaction to this article by quoting the former mayor of San Francisco, who said, “I’d rather be six feet apart than six feet under.”

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    • “Six feet apart” and “six feet under” are not the only available choices even with the plague rampant. Swathed in plastic, or properly masked and gloved, are additional sufficient options. And even these options are solely a temporary phenomenon, and they must be retired as soon as possible. The virus is being starved into submission by the current extreme protective response, and IT WILL PASS. Responsible officials may be cautious about admitting when the danger has passed in any given locale, but we are quickly approaching the time when we can assume the normal risks of living. Some risks are always with us, and live with them we do. We cannot have liberties and at the same time cower in fear seeking the chimera of a completely risk-free environment. Thus we must demand true information to support responsible behavior that does not selfishly countenance unnecessary amounts of risk but nonetheless pursues the maximum exercise of liberty which is a right inherent in the people and not dispensed at the whim of government.

      Liked by 1 person

      • I am a progressive liberal, but when it comes to resuming my normal life, I’d rather be conservative and feel confident that this deadly virus has passed than rush out to exercise my individual liberties.

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  4. To both PL and Fandango. I’m not suggesting abandoning common sense or endangering public safety. I am suggesting that once the crisis has passed, can we trust our leaders to give up the additional “authority” they’ve assumed over our lives and return our civil liberties, such as free movement and so on? I just found a clip on twitter of New York City mayor Bill de Blasio encouraging NYC citizens to report anyone not observing the lockdown by taking a photo of the perpetrator and texting it to the authorities. Didn’t Nazi Germany and the old Soviet Union also encourage neighbor to report neighbor to the state? Politicians are not altruistic saints, and some of them are probably loving the opportunity of the pandemic: https://twitter.com/NYCMayor/status/1251496378372632577

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    • Of course, James. I don’t think anyone would accuse you of anything of the sort. For my own part, I merely tried to express a perspective that the framers of the constitution expected of responsible citizens. Essentially it is that one cannot trust the holders of political power to return the rights that they have usurped, even with the best of intentions and justifications. It is the citizens themselves who must demand accurate information and best recommendations, in order to inform and determine the patterns of their cooperation or resistance — and the best timing and progressive staging for return to normal exercises of their native liberties.

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      • I agree with you, however many and perhaps most of the citizens, at least in the U.S., then to follow the herd, so to speak, rather than critically evaluating all aspects of this circumstance.

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    • Krystal and Saagar discuss: Tucker Carlson calls out

      Trump’s big business sell out on immigration

      {It’s somewhat ‘kind’ to call it a sell out
      when Trump has been increasing
      AND PERSONALLY USING
      these kinds of aliens
      within his term.}

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      • Saagar Enjeti/Rising: Corporate Dems, Republicans
        SCREW Working Americans AGAIN

        Why am I sharing these clips? We can complain about “government” all day, every day, whenever we’re not pleased about anything at all. I’m not sure that’s constructive; I’m sure, actually, that it’s not constructive. The people (one right-leaning, one left-leaning) in this clip are complaining about government, but because they want government to do something for the people. Oh… where the definition of “people” isn’t incorporated entities… oh, further narrowed to the richest of corporate demanders (or, in the case of the president, the highest-positioned special interests). I ask you, Are big business people altruistic saints? Are they not, some of them, probably loving the opportunity of the pandemic? Is there somehow a need to throw money at organizations that filed papers to exist at all and put their metaphorical hands out… and, at the same time, a need not to follow through on figuring out how citizens (existing from birth in biological form) and, perhaps, other humans too, can be fed and housed and even tested for disease spread?

        And now I will dip back to the article put forward in the opening post:

        What is the nature of government? It is the negation of freedom. It is a monopoly of force in a designated geographic area. ….

        These …

        … challenges are best filed in federal courts, where those who have trampled our liberties will get no special quarter. I can tell you from my prior life as a judge that most state governors fear nothing more than an intellectually honest, personally courageous, constitutionally faithful federal judge.

        • Andrew P. Napolitano, a former judge of the Superior Court of New Jersey…

        As a judge, Napolitano wasn’t part of the government? Hmmm. 🤔

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      • What is this comment about Trump and immigration? Trump has never been opposed to immigration per se. He has only opposed *illegal* immigration or invasion, and the support of American businesses small and large that employ legal immigrants and natural citizens.

        Liked by 1 person

      • Tucker Carlson is someone Donald Trump likes; we can start there. Tucker was apparently aware that Trump has been in favor of (and actively increasing the numbers as to) bringing in cheap labor — even while he, as a candidate both prior to the 2016 election and at rallies since then as he has hardly stopped campaigning, has hyped the ordinary citizen (of the sort who are his base) up to thinking he’s against foreign workers taking jobs that would theoretically be available to “Americans.” So Tucker had been saying, on his FoxNews show, that Trump should stop letting in the cheap labor during the health crisis… the logic being that so many Americans are out of work and could have these “essential” jobs themselves. Then, Trump tweeted that he was going to suspend* immigration; Trump often does (or says he’s going to do) things that Fox people say he should. But then, he didn’t follow through on the point of what Tucker had been saying. Again, Donald Trump likes Tucker Carlson (watches and reacts to him).

        * Many people who don’t watch Fox or aren’t aware of that universe assumed the tweet pertained to keeping out the virus (which is already rampant here). Tucker, however, had thought or hoped the tweet was about keeping out competition to citizens for in-demand jobs in a tight market.

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  5. I mistyped the sentence in my last post, which I wish I could edit. It should have said that Trump supports (rather than opposes) American businesses … (etc.)

    Liked by 1 person

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