Sunday, May 3, 2020

A Question Regarding the Constitutional Legality of Lockdowns

Zach T. emails:
I read Judge Nap’s weekly column every Wednesday. He is fond of saying these shelter in place orders are illegal and therefore should be considered null and void.

I understand they are unconstitutional, and therefore, at least in principle, illegal. But is that really true under our current rule of law?

For instance, would it hold up as illegal in an American court if someone is arrested (and many have been) for violating lockdown orders?

In other words, in the America of TODAY, are these “emergency shelter in place orders for our protection” effectively legal?
RW response:

I have a number of problems with the Constitution including the point made above. In fact, I am in the process of completing a paper discussing libertarian problems with the Constitution.

From my viewpoint, the problems start at the very foundation of the document.

Judge Napolitano, on the other hand, holds the Constitution pretty much sacred. What it says goes for him. The problem is, as you point out, others have different views on what is meant by certain passages in it. And so very often, a strict interpretation of the Constitution is ignored (and from my perspective, there are plenty of problems with even a strict interpretation).

Judge Nap's interpretation of the Constitution most often puts him in the freedom camp, so I am not going to spend a lot of time debating his perspective. Freedom lovers need all the help they can get right now and so I view him as an ally from another land.

But, it is pretty clear that if you attempt to act on what you believe the Constitution says and it is different from what the power leaders think, you could get yourself in a lot of trouble.

And so we must ask: What good is the Constitution if within its practical framework so much liberty can be lost?



  1. For whatever it is worth, I would note that at least in 1977, law schools taught that before the Great Depression everyone naively believed that laissez faire was a good system and it was protected by the constitution. BUT the Great Depression taught us all that laissez faire leads to depressions so it was necessary to change our interpretation of the constitution so that necessary government intervention could be instituted, much like obliterating constitutional protections presently to protect us against the virus. There's a concession there from the bad guys about what the constitution is supposed to protect that we should be able to use against them.

    Further, attacking the "New Deal" interpretation of the constitution with a clear and relentless statement from our side that their economic analysis is a hoax might cause them to actually respond to our ABCT analysis which would be pathetic for all to see.

  2. RW's last point is the most critical. If these lockdown actions were "legal" under the Constitution, then why should we give the Constitution any respect or legitimacy? And if they were not legal, same thing, as the Constitution has been worthless as a protective measure. Calling Lysander Spooner...

    1. Because the people enforcing the lockdown say they respect the constitution and they say that it protects rights. Most of the time, the officials obliterating your rights are claiming some type of emergency that overrides those protections while they concede the existence of those protections. It should not be that hard to show that their "emergency" is a scam.

    2. "It should not be that hard to show that their "emergency" is a scam." And yet here we are, in the middle of mass hysteria making it impossible to converse with crazy people.

    3. As Professor Laurence H. Tribe has observed: "In large measure, however, it was the economic realities of the Depression that graphically undermined Lochner's premises. No longer could it be argued with great conviction that the individual hand of economics was functioning simultaneously to protect individual rights and to produce a social optimum. The legal 'freedom' of contract and property came increasingly to be seen as an illusion, subject as it was to impersonal economic forces. Positive government intervention came to be more widely accepted as essential to individual, family, and community survival, and legal doctrines would henceforth have to operate from that premise." Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 1358 (3rd ed. 2000).

      Libertarians never seem to realize that it is the phony Keynesian explanation of the depression which altered the pre-existing legal recogniztion and understanding that owning property and making contracts was a fundamental right. The change in the law was based purely upon the phony Keynesian narrative. The statists will freely admit that "we used to recognize those rights, but we were naive".

      Instead of pointing that out, we have Amash threatening to sic the Feds on employers and landlords who discriminate in private contracts with the trans population.

  3. At this point the Constitution appears to be no more than an historical curiosity.

  4. There is a fine book called "The Hologram of Liberty" which does a fine job of deconstructing the Constitution. The title means "The Illusion of Liberty". I highly recommend the book.

  5. I agree that the Constitution has been violated so routinely and so often that it seems useless as a guard against tyranny. But this is true of any attempt at establishing common rules of behavior. The Bill of Rights is still a great expression of what is necessary to protect individuals from mob rule (democratic or otherwise). But for these ideas to be useful they must be embraced by most of the people most of the time. This is also true of a society based on personal property agreements. For me the essential challenge is getting to a situation where the initiation of force is clearly understood, and most people believe it is wrong.

  6. "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
    -- Lysander Spooner, "No Treason: The Constitution of No Authority" 1869

    The Federalists won the political fight, and got the Constitution ratified, but in the long run, History has vindicated the Anti-federalists beyond their wildest misgivings.

  7. I wrote an email to the legislative leadership here in Alaska, and asked them what authority they had to give the governor emergency health powers that make him some god, and from what I see, allows the suspension of the state constitution. I was told by 2 of them that they didn’t have the authority, they just did it, and I’m not joking, because “they were scared.” I’m considering a lawsuit against the state, and was given the name of a good lawyer from one of the legislators, who is willing to take them on. Don’t know what it would accomplish, but it certainly sounds like fun.

  8. Ask irwin schiff, who died literally chained to his bed in a cage worse than a dog, how much the "CON"-stitution will help you. 😒

  9. No surprise that conflict of interest government “judge” turns the constitution upside down.

    As Thomas DiLorenzo put it:
    The whole stated purpose of the Bill of Rights has always been to isolate rights to life, liberty and property from the political whims of “society.” When the First Amendment says that Congress shall make no law abridging the rights of free assembly and freedom of religion, it doesn’t add “unless ‘society’ disagrees,” with “society” defined by some pipsqueak government lawyer.