Judge Andrew P. Napolitano: Coronavirus shutdowns by governors are unconstitutional, illegal and immoral

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because the law is often but the tyrant’s will, and always so when it violates the right of an individual.”— Thomas Jefferson (1743-1826)

As if nanny state governors had been sleepwalking through the tyrannical shutdowns and their disastrous consequences last spring and summer, as if they were ignorant of the economic destruction of those they barred from going to work or operating their businesses, as if they thought it is lawful to assault natural rights and constitutional guarantees, these same governors are now beginning another wave of interferences with personal liberty.

Slowly, over the past 10 days, while the eyes of the public and the media have been on the counting of votes in the presidential election and the ensuing allegations and litigations, governors in New Jersey, Pennsylvania, Michigan, Connecticut and New York have threatened to impose or have begun to impose their unconstitutional, illegal, immoral and illogical efforts to shut down society in order — they claim — to rid the land of the COVID-19 virus.

By doing so, they have reignited the age-old debate of individual liberty versus public safety. In this case, the safety they claim to be enhancing is safety from disease. Yet, by their executive orders, they have purported to use state law to interfere with freedoms without due process that are guaranteed by the U.S. Constitution. By doing that, they have set themselves up for criminal prosecutions when normalcy returns.

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Here is the backstory.

For the past four years, I have been working on a 650-page treatise that explores the origins of human freedom from a natural law perspective. The book traces the recognition by scholars, jurists, theologians and — in the case of America at its founding — radical revolutionaries like Thomas Jefferson and James Madison, who truly believed and passionately argued that human freedom — our individual power to make unobstructed choices — comes from within us, and not from the government. Most of the historical defenders of this truism also believed in God and argued that He made us free by giving us free will.

This understanding of natural rights was wedded to the United States at its birth in 1776 when Jefferson wrote in the Declaration of Independence that we are endowed by our Creator with certain unalienable rights, and again in 1791 when Madison wrote in the Ninth Amendment to the Constitution that because human liberty is so expansive the government must protect even unstated, unenumerated rights.

To protect our rights from whom?

The framers could easily answer that question, yet the folks who run the government today do not want it asked because the answer implicates them. In the revolutionary era, colonists could protect themselves from evildoers attempting to steal their property or take their lives. But the foe they most feared was the government. They fought a bloody war against the government of King George III because it assaulted their economic rights and their right to self-government.

History is repeating itself, without the courageous revolutionaries. It is not my neighbor, or even a thief in the night, who impairs my personal liberty — it is the government. It does so, just as King George did, under the guise of safety. Yet, the Constitution and the Bill of Rights were written precisely to prevent governments in America — state or federal — from interfering with our liberty, absent a jury trial at which they must prove fault.

This jury trial requirement is called due process. It is guaranteed by the Fifth and 14th Amendments, which mandate that the government comply with due process whenever it seeks to impair the life, liberty or property of any person. Of course, a constitutional guarantee is only as reliable as is the fidelity to the Constitution of those in whose hands we repose it for safekeeping.

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Now, back to these nanny state governors. They have assumed to themselves the powers to write laws and enforce them. That assumption violates the U.S. Constitution and the constitutions of the states in which they were elected, because the power to write laws and the power to enforce laws is required to be separated in America. We call that the separation of powers. It is, according to my late friend Supreme Court Justice Antonin Scalia, the most unique and freedom-protecting aspect of the Constitution, and it applies to states as well as the federal government.           

Add to this the so-called lockdowns — a demeaning word originating in the shutdown of prisons during riots —  that directly impair personal liberties that are not only natural to us but are expressly guaranteed by the Constitution as the Supreme Court has interpreted it. These lockdowns interfere with the freedom to speak, travel, worship, assemble, engage in commercial intercourse and use property to its highest and best use.

Under federal law, when a government employee employs government tools to impair these enumerated rights — and does so without due process — that person commits a felony.

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Thus, when governors use police powers to interfere with personal liberty — liberty that is expressly guaranteed by the Constitution — and do so without a trial at which the government proves fault, they have violated both state and federal law, no matter their reasoning. Thus, all these executive orders regulating private personal behavior are profoundly unconstitutional and even criminal.

There is no pandemic exception to the Constitution. It is liberty that flows in our veins, not false promises of government safety.

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