Judge Andrew P. Napolitano: COVID's lasting lesson – we can never take liberty for granted

"Eternal vigilance is the price of liberty." 
-- Thomas Jefferson (1743-1826).

No one knows if President Thomas Jefferson personally uttered those words. They have been widely attributed to him, but they don’t appear in any of his writings. If he did not literally utter them, he uttered the sentiments they offer. They remind us not to take liberty for granted.

As America returns to pre-pandemic normalcy, we should think about the dangers of taking liberty for granted. This column has argued frequently that personal liberty is our birthright. It is a natural right. It doesn’t come from the government. It comes from our humanity, which is a gift from God. As God is perfectly free, so are we.

The Declaration of Independence and the Constitution presume that our liberties are natural and cannot be suppressed or taken away by the government absent due process. 

Due process requires a notice of charges, a fair hearing with all constitutional protections at which the government must prove fault, and the right to appeal. The Constitution doesn’t grant liberty; it restrains the government from infringing upon it.

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Some liberties are so essential to the pursuit of happiness that the Constitution prohibits their infringement, period -- with or without due process. These are the liberties that we exercise every day -- worship, speech, peaceable assembly, self-defense, privacy, ownership and use of property, commercial transactions, travel. We voluntarily establish governments to protect our liberties.

Are the governments we have established morally legitimate? They are when they have, as Jefferson wrote in the Declaration, the consent of the governed, and when they defend our liberties. Absent consent and defense of liberty, government is not legitimate.

How, in a land made prosperous by rugged individualism and personal sacrifice, not by government, did the people become sheep when their governors signed orders that purported to deny the right to worship, work, travel, assemble peaceably and use private property as one sees fit?

Jefferson argued that government exists only to secure our rights. When it fails to protect our rights, or when it destroys our property, we have the right to alter and abolish it.

These principles of personal liberty in a free society were mocked and attacked by the government during the recent pandemic, and most folks went along with it. 

How, in a land made prosperous by rugged individualism and personal sacrifice, not by government, did the people become sheep when their governors -- without legal authority and in utter defiance of constitutional guarantees that they swore to uphold -- signed orders that purported to deny the right to worship, work, travel, assemble peaceably and use private property as one sees fit?

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Why did so many folks who believe in personal liberty accept these illegal orders and cave to them? Why did we wear medically useless masks on our faces when we, not the government, own our faces? Why did we allow the government to close lawful businesses? Why did police and prosecutors break their oaths to defend the Constitution in deference to these gubernatorial power grabs?

The same Constitution that restrains the federal and state governments from curtailing fundamental liberties also guarantees those liberties. Stated differently, the 14th Amendment -- which imposes the guarantees of the Bill of Rights on the states and prohibits the states from impairing those guarantees -- also enables Congress to intervene when states fail to uphold basic, fundamental, constitutionally protected rights.

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Did the feds come to the rescue of any of us in beleaguered states where our liberties were curtailed by executive decree? They did not.

Did the courts, whose principal role is to apply and enforce the Constitution, invalidate the unlawful commands of governors or curtail the unconstitutional prosecutions of those who had the courage to defy them? They did not.

Did any legislative body -- state or federal -- use its powers to write laws to invalidate the unlawful, unconstitutional, immoral orders of governors? They did not.

There is a common thread running through all this, and it leads to the dark and baleful state of voluntary servitude -- a lamentable, Orwellian state of affairs where people are so afraid of a new demon that they voluntarily bow to rules and commands that bankrupt them and crush their liberties in a vain hope for safety. 

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The core thread running through all this is fear. Fear of sickness and death. Fear of bucking the tide. Fear of exercising personal liberty. Fear that the government might be right.

All these lockdowns happened overnight. There was no great public debate about them. There was far more acquiescence than challenge to them. The public took for granted that the governors actually had the authority they claimed they had and actually could become dictators in a crisis of fear -- a crisis they created. Now that this is for the most part behind us, the question arises: Why did we let this happen?

It happened because we take liberty for granted. We repose the Constitution for safekeeping in the hands of men and women who, in the eternal conflict of personal liberty versus governmental power, side with power. These are folks popularly elected who don’t care about liberty; they care about control.

At this writing, there is no clear answer as to the cause of COVID-19. But the cause of the pandemic was taking liberty for granted. What kind of a society is ours? You can go to jail for fishing or barbering without a license, but if you are a governor, you can crush the liberty of millions and destroy the property of thousands with impunity.

The next time this happens, will we cave, or will we resist?

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One of the rights championed by Jefferson and his fellow founders was the right to secede from the government -- the right to avoid a government to which one never consented. This is the core natural right for which the American Revolution was fought. 

For a government without the consent of those it governs is invalid and illicit -- and of no lawful authority. It only endures when masses of folks and shapers of opinion take liberty for granted.

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