Theft by Lockdown

Five or so years ago I was clear across the country from my home in eastern Washington State, having flown to Baltimore for a meeting. At the same time one of our daughters and her family lived outside Washington, DC, so I spent a couple of days with them. As part of that visit, we visited DC and, among other things, saw the Library of Congress. 

I had never seen the Library of Congress in person, and it was well worth the trip. We were there on a federal holiday and lots of sightseers were there. We could go to the balcony and look down on the “Reading Room.” You can see the reading room – where people actually get to touch books – in movies such as National Treasure. I found out you need a Library of Congress library card to get into the Reading Room.

Not being one to accept limitations, I went to the information desk and asked, “How do I get a library card to get into the Reading Room?” The nice young man was efficient in delivering the management-preferred message that the Library of Congress is primarily a research institution, so it has researchers in a number of different areas actively using its resources. “It’s not a normal library.”

The term “research” doesn’t scare me since I have published several clinical research papers, though I doubt my area of expertise (vision and binocularity) is currently being researched at the Library of Congress. I responded, not emphasizing that I believe I’m just like one of those special research people they let into the Reading Room, but rather emphasizing a more fundamental concept for me: I nicely but firmly and with a smile on my face said, “Excuse me. I OWN this library. Now, how do I get a library card?”

His response was sort of classic: “Oh! [pause] Well, you have to fill out this form and get your picture taken across the street. Unfortunately, that office is closed today since it’s a federal holiday, so you’ll need to come back for that.”

Since I live on the other side of the country, and since for a number of reasons getting across the country is a pain, I still don’t have my library card from the Library of Congress. Maybe someday. I always thought it would just be a cool ID card to show at the airport or the bank. 

So, what’s the point? 

The point is ownership. As an American citizen – who pays his oh-so-many taxes, may I add – I own the Library of Congress. So do those American citizens who happen to read this. We own the Library of Congress together – jointly, if you will. 

What else do we own? As free citizens of the United States, what do we own? First and foremost, we own ourselves. Let me say that again. First and foremost, we own ourselves.

That concept of self-ownership has been violated over the past four-or-so years. Many people in this country, and maybe in the world, are fine with ownership of self being violated. Some actually celebrate the idea of future violations, i.e., more masking and more vaccines are just fine. I guess you can never have too many opportunities to show you care, at the behest of and in instantaneous, uncritical alignment with those who “really know.” That is, of course, the experts.

Who is it that has the right – here we should probably switch the terminology from “right” to “authority” – to demand you subjugate your ownership of self, thereby allowing yourself to be forced to wear a mask and/or get a vaccine? And, if someone does have that authority, how did they or their entity acquire that authority and to what extent are they allowed to enforce that authority?

Regarding ownership of self, it’s sometimes said your rights stop where mine begin. Therefore, I can require you to wear a mask because you exhale. By the same logic, I should be able to demand that you get off the road when I am driving. Especially if you are in the oncoming lane, you are a potential threat to me. A potential threat is enough to remove you from the road since your right to drive – or exhale – stops where my right to be safe while driving – or inhaling – begins. 

Although the aphorism of your rights stopping where mine begin is often attributed to Oliver Wendell Holmes, apparently that language started with pro-Prohibition oratory. Pro-Prohibition orators would use the word-picture of swinging a fist. His right to swing a fist stopped at that point it encountered someone else’s nose. With that analogy, owning ourselves and the concept of individual rights was modified into being the right of others to not encounter a bar with people drinking a beer. As part of that, rights were shifted from individuals to rights of “the community.” 

The suggestion is that I have a right, based on being part of “the community,” to not be offended by the sight, sound, or apparently even knowledge of someone drinking liquor, and that right supersedes the ownership of self of the person who has chosen to drink. 

We’ll call it the individual absolute right, as part of “the community,” to not only demand to not be offended by the behaviors of others, but the right to prevent or preclude what has somehow become defined by “the community” as offensive behavior in others. That right to not be offended should not be confused with actual injury to the offended party. It is a psychic offense.

In the US, we usually look to the Constitution to delineate our rights as citizens. This (constructed) right to preclude offensive behaviors in others strikes me as extra-constitutional.

“The community,” at least as we might define the community from rights listed in the US Constitution, has no rights. Individuals have rights. 

When the Constitution in the 4th Amendment refers to the ”right of the people,” the context is of individual rights, not “community” rights. Similarly, Amendments 2, 9, and 10 refer to the people, but the context suggests the group of individuals that make up the new country, not “the community” as a cohesive entity. For that matter, the preamble says “We the people…”, it doesn’t say “We the Community.”

As free American citizens, some of us also own (unfortunately for too many, we must also use the past tense, “owned”) businesses. Are there limitations on that ownership? By that, I mean, do I own my business – my practice – that I am the sole stock owner for, or does someone else own it with me? If I own my small business, and it is a legal, not an illegal business, is the government allowed to close me as bars were closed in Prohibition? 

Does “the community” have some right to define a situation such that the cohesive entity “the community” perceives my business is punching at “the community’s” nose and therefore “the community” can force my legal business to close? Importantly – and a strong demonstration of who controls – my offensive behavior is defined by “the community” without any rebuttal definition by me allowed. 

In implementing Prohibition, apparently government either had, or acknowledged, no limitations on its actions. Bars were shut down and owners were not compensated. Was that a violation of the 5th Amendment’s guarantee that a person’s private property – I would include self or business in private property – should not be taken without due process or taken for public use without just compensation? I suppose you could argue the term “public use.” A dead business is not being taken for public use intending to be used in its original condition in the same sense that a piece of property might be taken to be used for a public structure. 

The excuse for business closure in recent times, of course, is pandemic lockdown. The first offensive behavior in my legal business during lockdown was just having the door unlocked. My business survived, but I watched the balance in my business checking account decrease, that decrease equivalent to about 10% of my typical annual gross revenue – not net revenue, gross revenue. 

That was with me taking no salary and doesn’t include some personal savings thrown in later to maintain fluidity in the account. I did pay my rent on time, paid the bills, paid the taxes, and paid for one employee for bookkeeping and general office stuff. Other businesses in town were closed permanently. 

In that sense I’m fortunate. I view both the money I lost from checking and the loss to employees I had to send home without pay as Theft-by-Lockdown. I view closed businesses in my community as tragic. Is that a right of “the community?” Does “the community” have a right to steal from small businesses and our employees?

Theft-by-Lockdown, brought to us by government; government acting as the enforcement arm of “the community.” 

When I look at what should be the outline of my rights as a citizen – the Constitution – I have lots of problems with how I and my business were treated by Theft-by-Lockdown. No one asked me if I was worried about the virus. The government simply took my time and my business production time from me. Without just compensation. Some might argue that the Constitution doesn’t apply since it was actually the State of Washington that shuttered my business. Those who say that probably missed the part of the 14th Amendment that states, “…nor shall any State deprive any person of life, liberty or property, without due process of law…”

That phrase “due process of law” is a stumbling block for me. Obviously, it wasn’t a stumbling block for the State of Washington. I am not a lawyer, let alone a constitutional lawyer. But, neither was George Washington. He stopped school after the 8th grade. Since he both presided over the drafting of and signed the Constitution, I’m hoping I’ll get the same grace as he might have gotten in looking at the Constitution. It seems to be written in simple language so not-a-constitutional-lawyer can understand it. 

My huge stumbling block: I’ve looked and looked, reread it, and did a couple of keyword searches, and nowhere does the Constitution say, “due process of law except in cases of extreme fear.” Given that no language approximates “except in cases of extreme [government-perpetrated] fear,” we might, for example, be upset by the detainment of Japanese-Americans during WW2. Or, I might have justification for being upset about the lockdown stealing 10% of my gross business. 

In my limited experience, much of the legal world can explain away all things Constitutional by invoking “the welfare clause.” The welfare clause is in the Preamble as well as in Article 1, Section 8 where the Constitution says “provide for the common defense, promote the general welfare” and “provide for the common defense and general welfare.” 

So, one of the goals of the Constitution is to promote the general welfare and one of Congress’s responsibilities is to provide for the general welfare. That means interning citizens can be justified by promoting what government considers to be the general welfare and stealing my money can be justified in the same way.

Such an all-encompassing explanatory clause should have an easily exposed sort-of derivational tree, like the Bill of Rights which derives from concerns that individual rights were not spelled out in the Constitution. One of my favorite Founders, James Madison, wrote those first Constitutional amendments to solve conflict between Federalists and Anti-Federalists; the Anti-Federalists wanting explicit safeguards for individual liberties. Federalists assumed the people and the states naturally owned the rights (people) and powers (states) not expressly given to the national government by a document meant to limit that national government.

Given that “the welfare clause” has such all-explanatory power, its derivation should be similarly available: Most of the explanatory writing on the welfare clause discusses taxation. That derivation comes from the Articles of Confederation, Article III, which states that “The said states hereby severally enter into a firm league of friendship with each other for their common defense, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force…or attacks made upon them or any of them, on account of religion, sovereignty, trade or any other pretense whatever.” [emphases mine] Articles VIII and IX go on to discuss money for expenses and taxation for funds for defense and the welfare of the states. The word “states” links to “their…general welfare.” 

The welfare clause is about the states. It’s not about individuals. The Declaration of Independence refers to the “United Colonies” as “Free and Independent States” with “full power to levy war.” It really doesn’t sound like the welfare clause is meant to be an excuse to take liberties away from individuals. Rather, it was meant to preclude one state’s welfare taking precedence over another state’s welfare in the loose Confederation of the states.

The thrust of much of the Constitution after the mechanics of setting up a then-limited government, and especially the thrust of the Bill of Rights, is individual rights. Amendments 2, 9, and 10 refer to the people, but the context suggests individuals, not “the community.” 

“Community rights” might just be considered another legacy of Prohibition, right next to Scarface Al Capone and the Chicago mob. 

The “welfare clause,” referring originally to the loose collective of the states under the Articles of Confederation, and the concocted “rights of the community,” either alone or in combination, do not (maybe, “shouldn’t”) excuse Theft-by-Lockdown. We know the Constitution doesn’t allow exceptions for fear or being afraid. Neither do the Articles of Confederation. That’s fortunate since we also know the Revolution – a cause for fear all on its own – was fought during a smallpox pandemic – a secondary cause for fear.

Do I think my Constitutional rights were abrogated in a Theft-by-Lockdown scheme perpetrated by the federal and state governments? Absolutely and unequivocally yes. Consider these:

1st Amendment “… no law prohibiting freedom of speech or right to assemble.” How can I have freedom of speech or how can I assemble with anyone in my business when I’ve been closed?

4th Amendment “…be secure in their persons…against unreasonable searches and seizures.” 

I was searched by random people spurred on by State of Washington advertisements requesting people report offenders/non-compliers; and then there’s seizure of my business open time and thereby gross production. All done without warrants.

5th Amendment “…not be deprived of …property, without due process of law; nor shall private property be taken for public use, without just compensation.” We’ve talked about this – they stole my production which equates to my money, without due process.

6th Amendment “…the right…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him…” Three times I received a letter from my state licensing board that I was not in compliance with lockdown demands from the governor. 

Twice we went through what process there was to find out who complained. We gave up. Anonymous snitches, rather than receiving stitches, got a free pass to discredit whoever they considered “noncompliant.” I couldn’t help but see a parallel in the Declaration of Independence where Jefferson writes in the section of complaints against the king, “He has…sent hither swarms of Officers to harass our people.”

14th Amendment “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” My property (production) was taken without due process and my “protection of the laws” was wildly less “protected” than the “equal protection” of Costco, Amazon, Walmart, the state-licensed marijuana stores, and the state-licensed stores selling liquor. In fact, in a very real sense, the prosperity of those stores was financed by the lack of equal protection for small businesses like mine.

My only reason to be open, according to the State of Washington, was for emergencies. Reflect back on my earlier statement about accepting limitations when I say my definition of emergencies adjusted to the situation sooner than the state might have thought appropriate. I work with eyes and vision. It seemed to me that if I’m driving and the guy driving the semi coming toward me in the other lane doesn’t have his glasses, that’s an emergency. I didn’t advertise being open, but I wonder if I would have survived if I accepted the state’s position on being open only for “real” emergencies.

But, that’s all history, right? “Oh, well, get over it, it’s done. We need to move on.” 

“We need to move on” has never been accompanied by an offer to make me whole from my losses. Imagine that. 

When you say “Move on,” consider what rights of yours may be going away next. The only needed excuse is fear. Fear trumps rational analysis as well as Founding documents. Will repetitive fear campaigns ever lead to a boy-who-cried-wolf response from the populace, “the people?” Time will tell since another fear campaign will come – probably sooner rather than later.

Do you own yourself? Do you find value in freedom of speech, freedom to assemble, due process of law, the right to face your accusers, and equal protection of the laws? Or, are we now in a post-constitutional epoch? 

As H.L. Mencken famously said “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins…” and also “the urge to save humanity is almost always a false front for the urge to rule.” 

If you have decided after all this that you’re OK with not owning yourself, that you are owned by “the community,” the good news is job openings are beckoning you. The Library of Congress is looking for members of “the community” to be at the information desk. The Constitution is housed in a different building, so it’s no worry. Your job at the information desk will be to tell others that they just don’t measure up to the standards of those on the inside. The inside, after all, is where the real work is done. That real work is done by special people – experts – who do real research and who actually know things – or so they tell us.