Pandemic Tyranny II

"Knights, the gift of freedom is yours by right!"
--Arthur Castus (King Arthur)

As evidenced by events over the past 18 months, rule of law has been supplanted by discretionary rule. Discretionary rule amounts to governing factions seeking to get away with doing whatever they can. In the public health arena, officials set rules by edict. In last fall's election, officials broke myriad election laws assuming that they wouldn't get caught. Even if they did, they figured that they would not be punished.

Judge Nap previews a new round of discretionary rule unfolding in the name of pandemic fighting. Once again, these discretionary rules aim to restrict personal freedoms protected by the Constitution. Most of the limitations that the Constitution places on federal government w,r,t. personal freedoms are written into the Bill of Rights. Since the passage of the Fourteenth Amendment, these same limitations apply to state and local jurisdictions as well.

The rights to thought (1st), speech (1st), press (1st), assembly (1st), worship (1st), self-defense (2nd), privacy (4th), travel (4th), property ownership (3rd, 4th, 5th), commercial activities (5th), association (5th), and fair treatment from government (4th, 5th, 6th, 7th, 8th) are plainly articulated or rationally inferred from the first eight amendments. The Ninth Amendment declares that all other individual rights not enumerated in the first eight amendments shall not be disparaged by government. The Tenth Amendment declares that powers not delegated to the federal government and not prohibited by law are reserved for the states, or to the people. 

These rights are considered to be natural--each individual is born with them. They are not granted by worldly rule. No president, king, governor, mayor, legislative body, judge, et al. has legitimate power to confer them.

The gist of natural law is that individuals are free to pursue their personal interests unencumbered by government intervention (a.k.a. 'liberty) so long as their pursuits due not forcibly invade the pursuits of others. This principle is sometimes referred to as the non-aggression principle.

Similar to previous rounds of pandemic-inspired interventions, new government mandates promise to interfere with rights protected by the Bill of Rights. Travel, assembly, exercise of religious beliefs, commercial activities, and how we dress (face masks) are among those threatened. The threats come from state and local officials who claim to have the power to unilaterally interfere with individual rights.

Their claims raise several constitutional issues.

1) Do state and local officials have the power to regulate behavior in the face of what they claim to be 'emergencies?' Article 4, Section 4 of the Constitution guarantees a republican form of government to each state (a.k.a. the Guarantee Clause). This means that government powers must be separated into legislative, executive, and judicial branches, and that one branch cannot assimilate responsibilities of the others. 

Because only representative legislatures can write laws that carry criminal penalties and incur the use of force, mayors, governors, and other officials cannot validly make unilateral declarations and call them law. There are no exceptions to this law in the event of self-proclaimed emergencies.

2) Can state legislatures delegate their lawmaking powers to governors during times of emergency? No. Again, drawing from the Guarantee Clause, republican forms of government require separation of powers, and one branch cannot abdicate its responsibilities in deference to another branch. Doing so would not longer constitute a republican form of government. If states abdicate their responsibility to provide a republican form of government then, by the Constitution, it is the federal government's responsibility to act in manners that fulfill the constitutional guarantee to the state's people.

3) Can state legislatures enact laws the governors desire to limit personal liberties enumerated in the Bill of Rights and to coerce compliance? No. Government at all levels in the United States is subordinate to the natural rights articulated in the Bill of Rights.

Given the straight 'no' answers to the above, the essential issue that the Judge doesn't address, unfortunately, is why these illegal mandates are not under full-fledged legal assault by people around the country seeking relief from tyranny. My growing fear is that if courts do not provide legal relief, then the pressures of institutional failure grow to the point where they will be relieved using other means.