Would a national coronavirus lockdown be Constitutional?
I think you all know the answer to this, but I’ll break it down for you anyway.
No, it would not be.
One: Article 1 Section 8 of the Constitution Does Not Give Congress the Right to Make Laws That Concern Health or Disease
The Constitution is pretty clear about what Congress is allowed to make laws about. If you need a refresher, watch the video below for a detailed breakdown of the powers Congress Constitutionally possesses.
It’s critical that Congress does not venture outside of these Constitutional confines because, when she does, she begins operating within the realm of arbitrary power and arbitrary power is dangerous and unlimited—something the founders wanted to avoid. The founders were not keen on a highly powerful federal government, so they left most issues (issues like health, marriage, education, welfare and the like) to the states. Each state can handle these issues specifically and distinctly.
James Madison said this about Congress writing laws outside of it’s enumerated power to write laws about: “The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
The answer then, is really rather simple. No, Congress can’t make laws about topics it was not empowered to make laws about. Health and disease were not one of those topics, therefore, the federal government cannot make laws about health and disease.
Two: There Is No Emergency Clause in the Constitution
Many people respond to this with the, “but government has more power when there is a national emergency”.
Ok, does it? Because if government derives its power exclusively from the Constitution, then we would need to see what the Constitution says about “emergency” powers.
The answer is pretty straight forward as it pertains to the U.S. Constitution. According to the Congressional Research Service: “With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency.”
So, I’ll swiftly dispel the lie that somehow the Constitution gives permission to suspend the Constitution during a crisis. I’m not sure where the notion that the Constitution should be suspended, Constitutionally, during a crisis, originated, but it is false.
Habeas corpus, or the right to a fair trail and protection against indefinite incarceration without said trail, is the only Constitutional right the Constitution allows to be temporarily suspended, in “Cases of Rebellion of Invasion”. According to the Cornell Law School Legal Information Center:
“Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.”
So, even the one Constitutional provision that can be suspended, can only be suspended by Congress, not the executive.
Read the Constitution for yourself, there’s nothing in there that provides the executive the right to become a King during a crisis, nor gives the legislative or judicial branches the right to delegate to the executive extra-constitutional power during a crisis. This means that if these branches do allow such executive power, they themselves are violating the Constitution.
Three: The Federal Government Has No Means to Enforce Lock downs
Americans aren’t too fond of government mandated lock downs, especially federally mandated lock downs. A recent study suggests that fewer than half of Americans are going to actually comply with any increased lock downs.
This means that over half of the 350 millions citizens in the country won’t comply. So, how does the federal government force around 175 million Americans to either wear masks, stay inside, close their businesses, walk a certain direction in a store, limit the number of people who meet in groups, limit the way that food is served at events…and the list goes on?
The answer is: there really is little to no way for the federal government to do something like this. Even if they decided to mobilize the military or national guard to do so, the U.S. military makes up a very small fraction of the U.S. population and it is almost impossible for them to be everywhere at once making sure that people—in every store, in every house, in every town and city—-are strictly adhering to the mandates. That’s not even accounting for whether or not members of the military would themselves comply with such executive or Congressional directives.
So, what would the federal government have to do then? They’d have to strong arm state and local police to take part in enforcing federal law. Not every state or city is going to want to comply so the federal government would likely use their tried and true tactics of withholding money from those states to force complicity.
Four: But We Do Want Federal Government in Some Cases to Protect Our Health….
So, here’s the rub about this whole thing. Many of the federal laws that we now have in place to protect health—specifically from food borne illnesses—were initially established because businesses were not taking the necessary precautions to ensure their food was safe for consumption. In other words, Americans saw a problem (unsafe food), and we turned to government to fix it.
The problem is that every time Americans turn to the federal government to fix the wrongdoings of humanity, other flawed humans (in goverment) grow in power.
The real issue is humanity. Humanity is not trustworthy and is out for their own self-interest. Humanity is flawed and when free, will abuse.
Here, we had a situation where food was not safely being produced, but the companies, wanting to make money, neglected taking the appropriate measures to ensure that their food was safe.
According to the FDA, “about 48 million people in the U.S. (1 in 6) get sick, 128,000 are hospitalized, and 3,000 die each year from foodborne diseases, according to recent data from the Centers for Disease Control and Prevention.”
So, the abuse that was happening demanded government. The federal government stepped in, passed laws about food safety, created the FDA to aid in implementation and began either working with states or forcing states to comply.
And how many of us would complain about the government ensuring that our food is safe to eat?
Likely few to none.
And yet, this is an example of the federal government, overstepping their Constitutional limitations and making laws about health (Now there could be something said for the fact that most food does travel across states, meaning it’s commerce and Congress can make laws about commerce between states).
I mention this because I think it’s healthy for those of us who want a Constitution following government to reckon with issues like the one above. How does a limited government respond to abuse that happens in its citizenry? How is liberty maintained and preserved amidst the need to also ensure safety?
Puzzle over this friends and we’ll re-address the topic in time.
In short, no, the federal government has no Constitutional right to force American citizens into a lock down. So much so, that they were given no methods of enforcement for such a move since such a move would never have been considered doable at the time of the founding.
The question truly is: how do we balance liberty with the need for safety? We can’t have an unlimited government possessing arbitrary power…but, we are also happy when the government uses arbitrary power to protect us from fallible and abusive human nature.
The founders thought the answer was this: states.
What do you think?
The Liberty Belle