Neither the Trump administration nor Congress has the legal authority to shut down American life absent at least baseline due process. As Judge Andrew Napolitano recently wrote, business closures, restrictions on assembly and movement, and quarantines are not constitutionally permissible under some magic “emergency” doctrine.
At a minimum, the federal government must show potential imminent harm by specific infected individuals at some form of hearing or trial. These due process requirements are not suspended. State and local officials may claim, or even possess, lawful police powers to shut down their communities.
We offer no analysis of such powers or claims under the myriad of state constitutions and authorizing legislation. But they should resist exercising these powers. The governor of Virginia, in particular, deserves admonition for unilaterally imposing a lengthy period of virtual house arrest.
We do not know, and cannot yet know, how many Americans will become sick or die from the virus. We do know that predictions regarding infection and death rates are highly unreliable. Even actual deaths attributable to COVID-19 are not so easy to count, as Italy has discovered. Age, general health, and comorbidity are difficult variables to assess, and people may die “with” the virus but not “from” it. It is also very difficult to assess the lethality of the virus relative to previously known types of flu and colds.
To date, COVID-19 deaths in the US are far fewer than deaths in ordinary flu seasons or from past pandemics such as the H1N1 virus. This understanding is critically important to put the virus, and the government response to it, in perspective. Even during past pandemics, depressions, and world wars, Americans went to work.
In 1850, French economist Frédéric Bastiat helped the world understand the “seen and unseen costs” of state policies. It is simple to see how quarantines and lockdowns will slow the spread of COVID-19. It is critical, but not so simple, to see the costs and harms caused by the economic shutdown. Only then can we rationally understand the tradeoffs involved.
How many Americans suffering from other illnesses cannot see a doctor now? How many Americans will lose their jobs, their life savings, their retirement prospects, and their incalculable feeling of self-worth? How many will succumb to depression, drug or alcohol abuse, and suicide?
How many will lose their homes, divorce their spouses, or suffer abuse? How many will never recover in their careers? How many small businesses, including the vital ones of doctors, dentists, and veterinarians, will vanish from your community?
How many young people will “fail to launch”? Worse still, will grocery stores and gas stations remain open and stocked? Will crime spike? Will the American social fabric, already thin from politics, tear apart?
These questions are not rhetorical. All of these things happened, to a degree, following the Great Recession of 2008. They will happen again—very soon—if we fail to act immediately. Tomorrow, on April 1, millions of Americans will not pay rent or mortgages. Millions of small businesses will shutter, just as many large employers such as Macy’s, Kohl’s, airlines, and hotels already have. Millions of service workers are unemployed already, but many more jobs will be lost. The effects will cascade.
There is no conflict between humanitarian and economic concerns; in fact they are flipsides of the same coin. A poorer America will be a much less healthy America, one more vulnerable to future illness and disease. Technology, modern medicine, and market actors can address a virus; already we see entrepreneurs producing cheaper ventilators and doctors using cheap generic drugs with very promising results.
This local, bottom-up approach is the only effective way to confront the virus. The federal government, as we see now and have in the past, is comically incapable of competence in times of crisis.
On a fundamental level, freedom really is more important than security—or, in this case, an illusion of security. We all demonstrate this in our personal lives every day, from flying to driving to riding bicycles, to consuming unhealthy food and drink simply because we like it. Security has never been the sole or even primary goal for a country born in rebellion.
Government cannot decide what aspects of our lives are essential or nonessential. The American people cannot simply sit at home and wait for government checks written on funds that government does not have. End the shutdown.
We begin our analysis with the observation of the truism that freedom is the default position. The language of the Declaration of Independence, as well as various amendments in the Bill of Rights, unambiguously reflects the views that those who wrote, ratified and amended the Constitution recognized that our rights — to think, speak, publish, worship, defend ourselves, travel, own property, be left alone — are natural to our humanity.
These rights preexisted the government. Their source is our humanity. Government does not grant these rights. Rather, its primary purpose — as stated in the Declaration of Independence, its sole purpose — is to protect these rights.
Though the courts have interpreted the Constitution to possess lamentable exceptions, the framers and ratifiers arguably accepted the non-aggression principle — articulated in the modern era by the late Professor Murray Rothbard — which declares that all aggression against persons and property even by government is immoral.
In the case of the federal government, it is one of limited, delegated powers. Of course, 230 years of legislation and litigation have blown its powers outside the confines of the Constitution and, invariably, in the direction of expanding federal power at the expense of personal liberty and the states.
The states formed the federal government and not the other way around. Yet today, the feds stay in power by bribing the states with cash grants, the rich with bailouts, the middle class with tax breaks and the poor with transfer payments. Notwithstanding all this, the courts continue to recognize the concept of personal liberty in a free society.
All this is background to the issue lurking beneath the headlines this week. Can the government quarantine people without proof of contagion and imminent assault? The short answer is no.
Now back to what the feds can do and what the states can do in a public health crisis. There are no emergency provisions or triggers in the Constitution; yet, Congress gave itself the power to regulate public health and safety under various pretexts. The pretexts exist because the nanny state urge of members of Congress to regulate is confronted by the reservation in the Tenth Amendment of health and safety to the states. Those pretexts are regulating commerce and all that affects commerce, and paying the states to do Congress’ will.
Stated differently, the Supreme Court has ruled that both the federal government and the states can confine a person who has not committed a crime, or one who has but has served one’s full sentence, in order to protect society from the person’s intentional or uncontrollable harmful tendencies.
It is contrary to the plain meaning of the Constitution for Congress to give itself powers that were not delegated to it by the Constitution, but the courts have permitted this. Yet, even in the case of a lunatic who has committed a crime and served his full sentence but remains dangerous, the courts have recognized constitutional safeguards to protect his natural rights.
Now back to our question of whether the government — state or federal — can confine persons against their will in order to protect public health. The short answer is yes, but the Constitution requires procedural due process. That means a trial for every person confined.
Thus, a government-ordered quarantine of all persons in a city block or a postal ZIP code or a telephone area code would be an egregious violation of due process, both substantive and procedural. Substantively, no government in America has the lawful power to curtail natural rights by decree.
While the non-aggression principle permits offensive aggression in self-defense when an attack is imminent and certain, that is a high standard for the government to meet, as it should be. Freedom — even the freedom of a madman or a dangerously sick and contagious person — is the default position. Infringing upon it without procedural due process is always constitutionally impermissible.
The Constitution was not written for the government to right every wrong. We know that government itself causes most wrongs — the theft of property by taxation, the impairment of economic liberty by regulation, the slaughter of innocents by war, the infringement of expressive liberties by majority vote.
Yet, the Constitution still mandates an exacting due process for all whom the government would restrain. That means a trial before any quarantine, no matter the public danger, and a fair trial, not one animated by mass hysteria or government-generated fear.
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