Law Professor Randy Barnett describes the Constitution as “the law that governs those who govern us.” When our government officials violate the constitutional order, they cannot expand citizens’ liberties; instead, they free themselves of legal restraints in order to augment their power to the detriment of the freedoms of the people they represent.
Under the guise of Covid responses, our leaders overthrew our constitutional system of individual rights to increase their power over the citizenry.
The federal government colluded with Big Tech to usurp Americans’ First Amendment right to freedom of speech and Fourth Amendment right to be free from unreasonable searches. Officials stifled criticism by slandering dissent as false and implying that it endangered the public. Bureaucrats supplanted the Seventh Amendment with a liability shield for Big Pharma’s most profitable products.
This three-headed hegemon of Big Pharma, Big Tech, and the federal government worked together to launch a coup d’état that usurped the Constitution. To replace our liberties, they offer a new ruling order of suppression of dissent, surveillance of the masses, and indemnity of the powerful.
Implementing this system requires totalitarian control beyond America’s constitutional traditions.
Stay-at-Home Orders and The Right to Travel
In addition to attacking the enumerated rights of the Constitution, public officials stripped Americans of their unenumerated liberties. Though not mentioned explicitly in the Constitution, the right to travel has been long recognized in the United States.
In Corfield v. Coryell (1823), Supreme Court Justice Bushrod Washington included the right to travel freely in his list of fundamental rights guaranteed by the US Constitution’s Privileges and Immunities Clause. Its roots date back to the Magna Carta (1215), which stated: “It shall be lawful for any man to leave and return to our kingdom.”
In 1958, the Supreme Court held: “The right to travel is a part of the ‘liberty’ of which a citizen cannot be deprived without due process of law under the Fifth Amendment” in Kent v. Dulles.
Despite this longstanding precedent, government officials stripped Americans of this unenumerated right with unscientific and tyrannical house arrest edicts.
California was the first state to issue a “stay-at-home” order in response to Covid. On March 19, 2020, Governor Newsom decreed, “[I] order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”
“Restricting citizens’ ability to travel is a hallmark of a police state,” wrote legal scholar Eugene Kontorovich in December 2021. “Infectious disease will always be with us. It cannot become an excuse to give the federal government carte blanche to control the lives of citizens.”.
Under Newsom’s arbitrary and capricious directive, the state pursued that carte blanche to impose tyranny on Californians. Law enforcement arrested paddleboarders, fined surfers, and demanded compliance under the threat of compulsion within three weeks of Newsom’s order.
“I think the days of trying to get voluntary compliance are really over,” San Diego County Sheriff Bill Gore said in April 2020. “The message is going to go out to all of public safety here in the county that we will start issuing citations for violations of the public order and the governor’s executive order.”
To various degrees, almost the entire country followed Newsom’s example of capricious fiats. For example, Hawaii created “checkpoints” to arrest and fine people who violated the state’s stay-at-home order; New Jersey charged parents with “child endangerment” for bringing their children to a social gathering; Rhode Island police charged three men from Massachusetts for driving into the state to play golf.
In the end, the policies were a public health failure. But, while they lasted, the house arrest orders defied the longstanding constitutional right to travel.
In 1941, Justice Jackson wrote that Americans have the right to interstate travel “either for temporary sojourn or for the establishment of permanent residence.” Citing the Constitution’s Privileges and Immunities Clause, he wrote, “if national citizenship means less than this, it means nothing.” For Massachusetts men trying to golf, national citizenship ended up meaning nothing.
Over fifty years later, the Court held in Saenz v. Roe, “The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” This right disappeared for New York parents who wanted to bring their children to a gathering with classmates from New Jersey.
In 1969, Justice Stewart called the right to travel “a virtually unconditional personal right, guaranteed by the Constitution to us all” in Shapiro v. Thompson. Yet, in Hawaii, the government flouted this standard and instituted a police state.
While anecdotes like golfing arrests and fines for children’s playdates may seem trivial compared to the vast array of Covid mandates, they represent the coordinated effort to punish individuals for exercising their right to travel freely.
American citizens lost the basic liberty to move unencumbered in their own country. Our officials implemented tyranny without any mention of due process.
At the very least, these decrees contributed to an economic disaster and a physical and psychological crisis in America’s youth.
Further, their unconstitutional acts failed in their goal to save American lives. One study found “the anxiety created by reactions to Covid-19—such as stay-at-home orders, business shutdowns, media exaggerations, and legitimate concerns about the virus—will destroy at least seven times more years of human life than can possibly be saved by lockdowns to control the spread of the disease.”
Returning to First Principles
There was a coup d’état in this country that presented itself under the innocuous banner of “public health.” Our country’s most powerful forces – including information centers, unelected officials, and multinational corporations – worked together to unravel the protections of the Constitution.
In January, House Republicans announced plans to launch a subcommittee to investigate “Weaponization of the Federal Government.” Representatives have publicized their support for the plan to investigate the activities of the IRS, the CIA, and the FBI. Good.
However, before defenders of liberty or politically motivated operatives rush to find malfeasance of law enforcement, they should return to first principles: namely, maintaining a functioning Bill of Rights supported by a firm separation of powers. In the absence of this system, the hegemonic forces will violate our freedoms again when the next crisis arises.
In other words, before we focus on why the weaponization occurred or what offenses took place, we should consider how our longest standing rights became so diluted that a respiratory illness managed to provide the pretext for our leaders to assault citizens’ longest-standing liberties.
Published under a Creative Commons Attribution 4.0 International License
For reprints, please set the canonical link back to the original Brownstone Institute Article and Author.
