Judge’s Opinions

Do We Still Have the Constitution?

The Constitution — when interpreted in accordance with the plain meaning of its words and informed by a fair reading of history — does not permit the government to infringe upon personal freedoms, no matter the emergency or pandemic. For those who agree with me, worry not. We will persevere. For those who trust the government, worry a lot. You are not in good hands.

As I write, it appears new orders of restraint on personal liberty are coming in the name of fighting a new pandemic. Yet, the purpose of the Constitution is both to establish the government and to limit it. Some of the limitations are written in the Constitution itself. Most of the limitations that pertain to personal freedoms are found in the Bill of Rights — the first 10 amendments.

These amendments were ratified to restrain the federal government from infringing upon personal liberties. Since the enactment of the 14th Amendment in 1868, and subsequent litigation, the Bill of Rights, for the most part, restrains the states as well.

So, the rights to thought, speech, press, assembly, worship, self-defense, privacy, travel, property ownership, commercial activities and fair treatment from government are plainly articulated in or rationally inferred from the first eight amendments. The Ninth declares that the enumeration of rights in the first eight shall not mean that there are no other rights that are fundamental, and the government shall not disparage those other rights. The Tenth reflects that the states have reserved to themselves the powers that they did not delegate to the feds.

The Ninth was especially important to its author, James Madison, because of his view that natural or fundamental rights are integral to each person, and they are too numerous to list.

In the following century, the anti-slavery crusader Lysander Spooner would explain it thusly: “A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber … or by millions, calling themselves a government.”

Natural rights collectively constitute the moral ability and sovereign authority of every human being to make personal choices — free from government interference and without a government permission slip.

Thomas Jefferson wrote in the Declaration of Independence that government derives all its powers from the consent of the governed. And Madison understood the Ninth Amendment to declare that our personal choices are insulated from government interference so long as their exercise does not impair another’s rights.

From this it follows that if governments interfere with our personal choices — and we have not consented individually to their power to do so — the interference is invalid, unlawful and, because our personal choices are essentially protected from governmental interference by the Bill of Rights, unconstitutional.

Now, back to the coming restraints in the name of a new pandemic.

The former and future interferences with the exercise of rights protected by the Bill of Rights devolve around travel, assembly, commercial activities, the exercise of religious beliefs and your face. These infringements have all come from mayors and state governors who claim the power to do so, and they raise three profound constitutional issues.

First: Do mayors and governors have inherent power in an emergency to craft regulations that carry the force of law? The answer is no. The Guarantee Clause of the Constitution mandates a republican (lowercase “r”) form of government in the states. That means the separation of powers into three branches, each with a distinct core function that cannot constitutionally be performed by either of the other two.

Since only a representative legislature can write laws that carry criminal penalties and incur the use of force, a mayor or a governor cannot constitutionally write such laws.

Second: Can state legislatures delegate away to governors their law-making powers? Again, the answer is no because the separation of powers prevents one branch of government from ceding to another branch its core powers. The separation was crafted not to preserve the integrity of each branch but to assure the preservation of personal liberty by preventing the accumulation of too much power in any one branch.

We are not talking about a state legislature delegating to a board of medical examiners in the executive branch the power to license physicians. We are talking about delegating away a core power — the authority to create crimes and craft punishments. Such a delegation would be an egregious violation of the Guarantee Clause.

Third: Can a state legislature enact laws that interfere with personal liberties protected by the Bill of Rights, prescribe punishments for violations of those laws and authorize governors to use force to compel compliance? Again, the answer is no because all government in America is subordinate to the natural rights articulated in the Bill of Rights and embraced in the Ninth Amendment.

We should encourage massive peaceful resistance to mayoral and gubernatorial ignorance and arrogance that disregards the Bill of Rights.

We need resistance to tyranny in order to stay free. Power unresisted continues to grow and to corrupt. History teaches that most people prefer the illusion of safety to the cacophony of liberty. The only reason we have civil liberties today is because generations of determined minorities — starting with the revolutionaries in the 1770s — have fought for them.

Today, we are governed by dangerous people who are again threatening to take away our ability to make personal choices, and to use force to compel compliance. In doing that, they will not only have violated their oaths to uphold the Bill of Rights; they also will have committed the criminal acts of nullifying our rights.

We must remind them that by using the powers of state governments to do this, they will make themselves candidates for federal criminal prosecutions when saner days return.

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