What makes North Dakota, South Dakota, Nebraska, Iowa, and Arkansas different than the rest of the states in the union? The answer is whether or not to issue “Stay at home” orders.
The citizens of each state have created a government for themselves via their own constitution. Each state’s constitution is different, and may grant their governments different powers in cases of emergency. It is a fundamental principle among free peoples that to deprive someone of their liberty without due process is not only a violation of their rights, but of the primary purpose of government.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Declaration of Independence
While I have seen stories about governors of these states endangering their citizens and calls for national action, I wanted to look at the two most basic facts that seem be either ignored or downplayed.
National Lockdown
There have been calls for President Trump to issue a national stay at home or similar order to prevent the spread of the virus. Some people note that legal experts say President Trump does not have the authority to issue such an order, often comparing him to leaders of countries like Spain, France, or Great Britain. Of course, there is a tremendous difference between the governments of those countries and that of the United States. Those countries are just that: Individual countries. They have political subdivisions, but they are creations of their national charter. On the other hand, the United States is a creation of the states, and it is granted specific enumerated powers by those states. Put another way, the national governments of Spain, France, and Great Britain created and therefore have power over their territories, provinces, or regions. However, since the states created the United States, they have the power over the central government, even if that is not taught today.
The Constitution of the United States does not grant the President, Congress, or the judiciary the authority to order people to stay at home. Since the federal government is not granted that authority by the Constitution, they are prohibited from doing so by the Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution Amendment X
Furthermore, stay at home orders are a violation of the Fifth Amendment’s due process clause:
nor be deprived of life, liberty, or property, without due process of law;
U.S. Constitution Amendment V
The only power I can think of for the federal government to restrict travel is for Congress to suspend interstate commerce, but that is for Congress to do, not the President. Also, it could only limit commerce, since the Constitution does not give Congress the power to limit travel. And since so much of our day to day lives are dependent on products delivered from out of state, such an order not only cripples the economy, but probably leads to panic and riots of whatever is left.
State Lockdowns
As of the writing of this article, approximately 30 states have issued some sort of stay at home or shelter in place order. While I have not researched the orders or the constitutions of these states, I do see one very important problem with them: They violate both the Fifth Amendment (quoted above) and the 14th Amendment of the U.S. Constitution:
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution Amendment XIV
Since these orders deprive you of your liberty without cause, trial, or any pretense of protecting your rights, there is no due process. I’m sure lawyers and judges will claim that the government has a “compelling interest” in keeping people safe from the virus. First of all, the purpose of government is to protect your rights, not keep you safe. (Remember the Declaration of Independence?) Second, if the government can decide whether or not it will protect your rights, then they are not unalienable rights. In effect, you have no right to life, liberty, and the pursuit of happiness, only the opportunity to beg the government to let you have them. And if the government can decide not to protect your rights because of a pandemic, what other “emergencies” will they discover they can use for the same purpose?
So when I read an article about governors refusing to bow to pressure to infringe on the rights of their citizens, it makes me very happy. I hope the citizens of these states will contact their governor with words of support and encouragement. Most of all, I hope they will stand up if some in the federal government get the idea in their head that they can force states to comply with their wishes.
What Are We To Do?
I’m sure by now there are some of you yelling at your computers something like, “But Paul, what are we to do? We have to do something to stop the spread of this virus.” And I agree, but the answer is not more tyranny from government officials, but for all Americans to grow up and start acting like adults. It’s one thing for government officials to provide evidence, statistics, and guidance, but it’s quite another for them to issue illegal orders or exercise powers not delegated to them.
There are thousands of stories, and probably millions more untold, of people doing the right thing for themselves. People, because of their situation, sheltering in place. Others, who are concerned they may have been exposed to the virus, voluntarily avoiding gathering with others. Even more are out and about, observing social distancing recommendations, and in many cases, using their freedom to help others with deliveries of food, medicine, or comfort. Have some of those people gotten sick? Probably, but that is the consequence of their own decision, and I honor them for it.
In the meantime, if you are waiting for someone in government to tell you what is best for you, then you are not a citizen, you are a subject. If those we hire to act in our name can dictate how we should live, then they are not the public servants they claim to be, they are our rulers. And when they can subject us to laws and restrictions while exempting themselves, they have become an aristocracy, the very form of tyranny we declared independence from 244 years ago.
Furthermore, this “one size fits all” mentality is corrosive to the republic our Founding Fathers formed. What is best for New York is almost certainly not what is best for South Dakota. What works best in California is most likely not what is best for Texas. Even within states, what is best for New York City, Boston, or Los Angelos would be destructive to the rural areas that make up the vast majority of the land mass of the states of New York, Massachusetts, and California. By treating the entire country as if it were a major urban area, we have not only crippled the economy but our ability to rise to the occasion and defeat this virus as well. Does that mean that some will get sick or even die? Yes, but people are dying already. Would more die than if we obeyed our leaders like sheep? No one can truly know for sure. The question then is: What are you willing to give up for the promise of safety that can never truly be delivered?
Conclusion
There are lessons to be learned in this pandemic. First, given any opportunity there are those, especially in government, who will take power not delegated to them. History has shown that when a power is taken, it is rarely returned without a fight. If we love liberty, we must resist the taking of power and prepare ourselves to fight for the return of what we’ve already lost.
Second, this pandemic, and especially our reaction to it, shows just how badly our education system, formal and social, have failed to create a people prepared to live free. We live our lives like freedom and liberty are the normal state of affairs, like we’ve always had them, and always will. History has shown the exact opposite; freedom and liberty are not the norm. Just as order devolves to chaos or systems decay without maintenance, liberty devolves into tyranny without the active participation of those who live in it. As Ronald Reagan said:
Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.
Ronald Reagan
Whether it is true that a majority of the nation seems willing to be ruled by their state houses and Washington, D.C. or if it is merely an illusion created by those who just wish it to be so, we who love our liberty should learn that we will not be taught what those in power do not want us to learn unless we find it ourselves. Instead of being trained to be subjects, we must learn to live free.
Last, but certainly not least, this pandemic should be a wakeup call for many of us. We not only need to be prepared to take care of ourselves, but need to be willing to suffer the consequences of doing so. Whether it’s the pastor arrested for holding worship services, the neighbor threatening to turn you in to the police, or the possibility that you might get sick, if we will not stand on our own two feet we do not deserve the liberties we claim. We must decide for ourselves whether we will live as free people or as serfs. Since nothing is free, you will either pay with consequences of your decisions or with your liberty. The choice is yours. Before you hand over those precious liberties you inherited from your forefathers though, remember this.
They who would give up an essential liberty for temporary security, deserve neither liberty or security.
Benjamin Franklin
