Commentary: Where are lockdowns in the Constitution?

Submitted by Freedomman on Wed, 11/18/2020 - 17:49

By Jacob G. Hornberger

November 17, 2020 - With some people advising Joe Biden to adopt a nationwide lockdown when he assumes the presidency (which will never happen), this would be a good time to ask an important question: Where in the Constitution does it authorize the federal government to impose a nationwide lockdown? For that matter, where does the Constitution authorize the federal government to combat pandemics? Indeed, where in the Constitution is the federal government authorized to do anything with respect to healthcare, including providing people with Medicare and Medicaid?

When the Constitution called the federal government into existence, the premise was that this would be a government of limited powers. If the Constitution didn’t delegate a certain power to the federal government, then federal officials were precluded from exercising it.

One can search the Constitution for as long as he wants, but he will never find any grant of power to the federal government to enact mandatory lockdowns, Centers for Disease Control, the DEA, Medicare or Medicaid.

That’s the way the Framers wanted it. That’s the way our ancestors wanted it at the time of the founding of the United States. If the Constitution had proposed a federal government with general or unlimited powers, it never would have been adopted.

Is there a crisis exception in the Constitution? There is not. The Framers understood that crises are the time-honored way by which people lose their rights, liberty, and well-being at the hands of their own government. The last thing they would have approved of was a provision in the Constitution authorizing the exercise of prohibited powers during times of crisis.

Some of Joe Biden’s supporters are advising him to let the states decide whether a lockdown is advisable within their particular part of the country. Does the Constitution authorize the states to impose lockdowns or, for that matter, enact measures to battle pandemics?

While the Constitution established a federal government with limited, enumerated powers, it was different with respect to the states. The states were authorized to enact whatever laws they wanted, unless a particular power was expressly prohibited in the Constitution. This makes sense given that the prevailing mindset at the time was that the states were independent, sovereign entities coming together in a voluntary pact with each other.

Of course, many state constitutions restricted the powers of their own state and local governments.

The states’ powers fell under the general powers of a government to enact what are known as the traditional “police powers” of government - i.e., laws intended to protect the “health, safety, morals, and welfare” of the citizenry.

State officials, therefore, would justify a lockdown under the traditional police powers of the state - that is, as a measure to protect the health of the citizenry.

However, the original concept of state powers was modified by the Fourteenth Amendment, which prohibits the states from depriving any person of life, liberty, or property without due process of law.

Due process of law means notice and hearing or trial. When the state (or a city within a state) imposes a statewide (or citywide) lockdown, it is not providing due process to the individual. It is taking people’s liberty (i.e., economic liberty) and their property (i.e., their business or livelihood) without due process of law, in violation of the Fourteenth Amendment. Every federal judge in the land should be declaring state and local lockdowns in violation of the Constitution.

The problem is twofold:

One, ever since the Franklin Roosevelt (regime), the Supreme Court and federal judiciary have made it clear that they will never again enforce the Constitution against either the federal government or the states on matters relating to economic activity or healthcare. In this regard, the federal courts have abrogated the responsibility they were given to declare unconstitutional laws unconstitutional.

Two, the Amerikan people have been indoctrinated into passively accepting the notion that both the federal government and the state governments should have the general power to provide healthcare and other welfare to people and to protect them from the vicissitudes of life, including pandemics.

Thus, a necessary prerequisite to a free society is an enlightened judiciary, one that is unafraid to enforce the Constitution against both the federal government and the states. To make it easy for Supreme Court justices and federal judges to understand their duty, the ideal would be to enact a constitutional amendment stating the following: “No law shall be enacted by either the national or state governments respecting the regulation or provision of healthcare, or abridging the free exercise thereof.”

To regain our freedom, health and well-being, it is imperative that there be a reawakening among the Amerikan people, one that induces them to seek a deeper understanding of what freedom really means and to prize liberty above all else. Once a critical mass of Amerikans understand that freedom necessarily entails a separation of healthcare and the state, America will be on the road to a genuinely free, healthy, prosperous and free society.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. Send him email here.