by Steven D. Miller
Is now the last chance to secure the blessings of liberty? Is resistance futile because you have been assimilated? How can it be constitutional to hold innocent people under house arrest? Join me as we ponder these questions.
Before you decide to stand up to the police state you should prepare to give an answer to the constitutionality issues.
- Did your State impair the obligation of contracts?
- Did your State Congress grant legislative powers to the Governor?
- Do your Governor’s executive orders apply only to his/her employees?
- Is the U.S. Constitution the Supreme Law of the land, and judges in every state shall be bound thereby?
- Is every inhabitant in your State guaranteed a republic form of government?
- Did you State prohibit the free exercise of religion?
Governments are instituted among men to secure the blessings of liberty. They also have the right (as does anyone else1) to prevent deaths by interfering in private affairs. Just as you have the right to enter a burning home without permission, or enter a home when someone is screaming for help.
There is no conflict between these two government duties. Government can both secure the blessings of liberty and protect rights.2 They can do both even during a crisis. They can do this the way it was always done. With quarantine zones, imposed in dense municipalities, to confine the disease.
They could also do this with quarantine zones around the most vulnerable. Stanford University’s Hoover Institute published an article explaining that shutting down the economy is not necessary. All we need to do is protect the most vulnerable. Link: https://www.hoover.org/research/playing-politics-coronavirus
This authority is called by various names like “police power”, “compelling state interest”, “overriding governmental interest”, “exigent circumstances”, “clear and present danger doctrine”. Government has a legitimate function that can trump your right to liberty. They can protect an innocent person from grave and immediate danger.
The ruse that you are a danger to someone, without evidence, does not justify loss of liberty.
According to the Supreme Court, “… freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect” (This phrase was used in many Supreme Court decisions to protect your rights. Carrol v. Princess Anne 393 U.S. 175, Thomas v. Collins 323 U.S. 516, West Virginia v. Barnette 319 U.S. 624, in re Brown 9 Cal.3d 612, West’s Constitutional law, key 84, 90, 91 — etc.)
The 1905 United States Supreme Court ruling in Jacobson v. Massachusetts 197 US 11, concerned an emergency smallpox epidemic where people were dying, and quarantine zones were enforced in Boston. Mr. Jacobson, who had previously been injured by a childhood vaccination, and who raised no religious objections, raised ONLY the Constitutional question of equal protection, and who did not ask for a hearing, was given the option paying the $5 fine (a tax, if you want to use the Obamacare comparison) to remain unvaccinated inside the emergency quarantine zone. The $5 fine applied to anyone over the age of 21. Mr. Jacobson argued that he was denied equal protection because children were exempted from the fine. The Supreme Court determined “this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.”
That’s right! The Supreme Court decision that States rely upon as their only authority to force vaccines on children, actually says vaccines are NOT for children. They also ruled that during a smallpox outbreak children would be kept out of public schools until vaccinated.
A law textbook, Cooley’s Constitutional Limitations, 8th Edition, page 1229 quotes this very same Supreme Court Jacobson quarantine decision as proof of the opposite of what your government now says. It concludes:
“The police power is not supreme and is not unlimited. It is subject to the limitations imposed by the Federal Constitution upon every power of government. It will not be suffered to invade or impair the fundamental liberties of the citizen”
That’s right: “fundamental liberties” cannot be impaired by quarantine laws. Why do we find our fundamental liberties eliminated — from government overreach to a mild disease? Yes; it is a mild disease. Smallpox killed 30% of those who contracted it. Yet COVID-19 only kills 5% of those who are sick enough to be hospitalized, most of which have at least two co-morbid underlying conditions. And many infected people never had any symptoms at all.
WHAT IS LIBERTY?
Let’s examine some of the “fundamental liberties” that cannot be impaired by police powers during a quarantine.
Law Textbook Definition of Liberty
Back when we had a Constitutional system of government, everyone knew we could get out of our house and exercise “the fundamental laws of our being”.
Supreme Court’s definition of Liberty.
The US Supreme Court waited for a homeschool case to give us their partial definition of Liberty. In Meyer v. Nebraska, 262 US 390, 399:
The term Liberty “… denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his/her own conscience… the established doctrine is that this liberty may not be interfered with under the guise of protecting public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.”
FUNDAMENTAL LIBERTIES DURING IMMINENT DANGER
Can it be constitutional to hold an innocent person under house arrest? I don’t know how the courts will rule, but you may want to know the foundations of liberty.
When the republic is in extreme danger of extinction, the law allows a magistrate absolute authority. This law existed in ancient Rome.
Blackstone’s Commentary on the Laws was the 1765 preeminent law textbook used when the United States was created. In the introduction to unalienable rights it says:
“…to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, “dent operam consules, ne quid respublica detrimenti capiat,” was called the senatus consultum ultimae necessitatis. In like manner, this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it’s liberty for a while, in order to preserve it for ever.
The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. 22 If there be no cause expressed, the jailer is not bound to detain the prisoner. For the law judges in this respect, saith sir Edward Coke, like Festus the Roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.”
22. General warrants, commanding the seizure of any persons not named, or whose offence is not particularly described, . . .
THE LAWS OF NATURE
The first sentence of the Declaration of Independence says that the laws of nature entitles the United States to exist. This very same laws of nature tells us:
Legibus sumptis desinentibus, lege naturae utendum est.
When laws of the state fail, we must resort to the laws of nature.
Also see John Locke’s 1690 Second Treatise of Government paragraphs 135, 149, 171, 209.
No, not virus remedies. Legal remedies.
Deprivation of liberty under the color of law is a CRIME, at least for 14th Amendment citizens.
Courts award large compensatory damages for deprivation of liberty. See my essay on How much is your liberty worth?
“… And what country can preserve its liberties, if its rulers are not warned from time to time, that their people preserve the spirit of resistance?”
— Thomas Jefferson on November 13, 1787 letter to future Congressman William S. Smith
“Let your motto be resistance! Resistance! No oppressed people have ever secured their liberty without resistance.”
– Abolitionist Henry Highland Garnet
You know James Otis for his slogan “Taxation without representation is tyranny”. He wrote The Rights of the British Colonies Asserted and Proved in 1764:
“But if every prince since Nimrod had been a tyrant, it would not prove a right to tyranize. There can be no prescription old enough to supersede the law of nature, and the grant of God almighty; who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please.”
Thomas Jefferson’s inscription on his ring:
“Resistance to tyrants is obedience to God.”
US Supreme Court, Laird v. Tatum, 408 US 1, page 28:
“This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. … Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep the government off the backs of the people. … The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. … When an intelligence officer looks over every nonconformist’s shoulder… the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image …”
But we now find out that it is a crime to peacefully assemble to petition government for redress of grievance. In a fictional place that can again become the land of the free.
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1. Law of necessity is a maxim of law: Illud quod alias licitum non est, necessitas facit licitum, et necessitas privilegium quod jure privatur. That which is not otherwise lawful, necessity makes lawful; and necessity brings in as a privilege what is denied by right.
2. After all, Ben Franklin once wrote that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” — Benjamin Franklin, November 11, 1755; Reply to the Governor. This is inscribed on a plaque in the stairwell of the Statute of Liberty.
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Steven D. Miller is a freelance copywriter producing informative blog posts, white papers, eBooks and high-density documentaries. He is available on a limited basis to offer hope to any audience that yearns to breathe free. Contact him at Steven.Miller@LibertyContentWriter.com