The Constitution, Bill of Rights, and various state declarations of rights don’t change. They are fixed forever under all circumstances and are of nobody’s private interpretation.
Over the weekend, we have seen a San Diego woman subject to criminal misdemeanor charges for organizing a rally protesting the California lockdown. We’ve witnessed residents of San Mateo County, California, issued citations for traveling more than five miles away from their homes. We all watched horrified as police (in brown shirts!) arrested a peaceful man for walking on a closed beach, defying the basic science of how viruses spread as well as the Constitution.
It’s as if the faultier the science behind the lockdown, the more our governments continue doubling down on unconstitutional enforcement.
Through all the important questions about science, we are failing to ask the most salient public policy question: What authority does a governor or county official have to suspend all personal liberty and property rights of even healthy individuals and business owners indefinitely without due process? The answer is, of course, that absolutely no such authority exists.
There is no greater right than the ability to move freely without restriction. We’ve never experienced a time in our 400 years on this continent, even under King George, when the movement of the entire people of a state was restricted this severely for this long, especially without due process. While the people who form a society give up certain powers in order to empower a government to protect public safety, this core freedom has never been ceded.
John Locke explained the origin of this liberty as follows: “To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”
That’s it. A government has no power to indefinitely restrict movement and our ability to earn a living beyond certain narrowly tailored regulations. These core liberties have never been ceded even during times of war or danger. In expressing one of the core tenets of natural law, my home state constitution of Maryland states: “That the provisions of the Constitution of the United States, and of this State, apply, as well in time of war, as in time of peace; and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good Government, and tends to anarchy and despotism.” (Art. 44, Maryland Declaration of Rights.)
Governor Larry “Lockdown” Hogan, who, as chairman of the National Governors Association, is one of the national leaders promoting martial law, would be well advised to read the 47 articles of this document, which contains the self-evident truths of natural law and just government understood by all of the governments of the original 13 colonies in 1776. There is no exception to life, liberty, and property rights. They must be preserved and cannot be infringed upon without due process. Some have made comparisons to wartime, where there is an imperative to govern with a heavier hand, but those rights never go away even during wars.
One of those provisions in the Maryland Constitution (Art. 32) is that “no person except regular soldiers, marines, and mariners in the service of this State, or militia, when in actual service, ought, in any case, to be subject to, or punishable by Martial Law.” There is no public health crisis exception to the rule of martial law, as clearly expressed in Article 44 of the Declaration of Rights.
Justice Robert Jackson observed the same thing about the federal Constitution and that the Founders deliberately omitted emergency exceptions to fundamental rights because they “knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.”
Yes, the courts have ruled in the past that a state has quarantine powers, but they cannot be used in an “arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public” (Jacobson v. Massachusetts (1905)).
Moreover, fundamentally, what the governments are doing now is not quarantine, which is defined as isolating the sick from the general population. In this case, for the first time in history, they are confining the general population. As a New York court ruled in The People vs. Peter W. Roff, a quarantine law can’t sentence “all persons, well or sick, whether exposed to infection or not, to an unlimited imprisonment.”
What is happening today would fall under Article 24 of the Maryland Declaration (and similar provisions in most state constitutions) that “no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Even states that don’t have such language in their respective constitutions are bound by Article IV Sec. 2 of the U.S. Constitution and the 14th Amendment.
This language from Maryland’s constitution comes almost directly from the Magna Carta and was expounded by William Blackstone in the 1600s. Personal liberty was defined by Blackstone as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” It was from this principle that our Founders wrote the Declaration of Independence and the various state declarations in 1776.
It’s funny how the legal mistakes made by our governments have merged with the scientific mistakes they continue to make. The reason why there has never been any power to shut down an entire state’s economy and liberties for a public health crisis is because, scientifically, there is no sensible approach to countering a virus by locking down the healthy, without herd immunity.
Let’s be clear, with the violation of every core fundamental right, we will soon be left to invoke two other clauses of the Maryland Constitution.
Art. 1: “That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.”
Art. 6: “Whenever the ends of Government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the People may, and of right ought, to reform the old, or establish a new Government; the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.”
Governor Hogan, we are here to issue you a citation for violating the most sacred clauses of Maryland’s constitution and imposing those usurpations on the rest of the nation. Any further continuation of those usurpations serve as a legitimate trigger for the aforementioned clauses.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.