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Last week, I posted an article describing why I thought the statewide lockdowns in response to CoVid-19 were unconstitutional. Within that article, as prelude to the constitutional issues, I made a comparison to other pandemics, illnesses and causes of death and presented a brief overview of the economic destruction that we have wrought upon ourselves, as of last Monday, April 6, 2020.
This is a follow-up to that article, presenting a stronger discussion of the actual verbiage of sections of both the Declaration of Independence and the Constitution.
Here I present an analysis of source documentation only – an excerpt from the Declaration of Independence and applicable sections of the Constitution. My goal to show that one need not refer to case history, nor refer to The Articles of Confederation, nor be a Constitutional scholar, nor be a lawyer, nor have read The Federalist Papers or any of the Founding Fathers’ other writings, nor be conversive in eighteenth century prose in order to understand what these documents actually say, and therefore what our governments are supposed to be doing.
The only references I used were dictionaries, as I wanted to validate that the meaning of several key words and phrases had not changed over the last two and half centuries, which they have not. The three dictionaries I used were 1) A Dictionary of the English Language, Samuel Johnson, A.M., London, 1792, 2) https://www.merriam-webster.com/, and 3) my high school Latin textbook. A comparison of these key words and phrases, which I have bolded in the text of the source documents at the first appearance herein, is presented in alphabetical order as an appendix at the end of this article.
On Rights and the Purpose of Government
The beginning of the second paragraph of the Declaration of Independence reads:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,--…
The preamble to the Constitution reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The signatories of the Declaration of Independence viewed as fact of reality, something which needed no further explanation, that whoever or whatever made humankind enriches all individuals with all a set of non-transferrable rights. Each human has these by virtue of their existence as a human being. Some of the rights which humans naturally possess are life, liberty, and the pursuit of happiness. However, this list is far from all-inclusive, as indicated by the use of “certain.”
Human beings establish governments with the sole purpose of protecting the aforementioned rights from those who would attempt to curtail them, which is often man’s natural inclination against one another. Protection of natural rights is the only proper function of government. By their consent, those who establish a government grant that government its true powers to protect their rights. This is what Jefferson stated so succinctly and what the preamble to the Constitution only reiterates.
(As a side note, many will debate and fuss that the Founding Fathers owned slaves. The subject is far too broad for the point of this article. Suffice to state, yes, many of the Founding Fathers owned slaves, this was a common practice in the eighteen century, and America was far from the first country to engage in it; read the Bible, study real history. The country fixed the issue with the 13th Amendment.)
Laws and Republican Government
From the Constitution:
Article VI, C2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof,… shall be the supreme Law of the Land;…”
Article 1, §1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article IV, §4:: “The United States shall guarantee to every State in this Union a Republican Form of Government,…”
The Constitution is the supreme law of the land; all other laws within the country flow from it, and must be in accordance with it. The Constitution stipulates a Republican form of government, i.e. one where the power is vested in, and by the consent of, the people, not only for the federal government itself, but also for each state government within the country. There are no exceptions to this.
Only legislatures may pass laws. By both the Declaration of Independence and the Preamble to the Constitution, the purpose of laws is to protect the unalienable rights of the citizens of the United States.
Why the States Must Abide by the Constitution
From the Constitution:
Article IV, §2, C1: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
14th Amendment, §1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”
The states cannot deprive a citizen of the United States of their rights, life, liberty, or property without following a process delineated by a law, or set of laws; laws which must have been properly enacted by a legislature. Citizens are citizens of not only the state in which they reside, but also of the country, therefore states are obligated to protect the rights delineated within the Constitution. States are also obligated to respect rights and privileges, for example property or marriage, of citizens from other states.
Some Rights Delineated in the Constitution That States Have Trampled on of Late
From the Constitution and Bill of Rights:
Article I, §10, C1: “No State shall… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts…”
A state cannot simply declare a citizen guilty of some crime, nor can a state pass “laws” declaring an action criminal after that action has already taken place, and states must honor, not impair, contracts between individuals and business.
1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Congress and the states, by extension and virtue of the 14th Amendment, are prohibited from the following actions: 1) establishing an official religion, 2) prohibiting the free exercise of religion by the citizens, 3) curtailing speech, 4) curtailing the press, 5) prohibiting the citizens from assembling peacefully, or 6) prohibiting the citizens from holding the government accountable to them.
Notice that there are no restrictions as to how people may worship, or to what size of gathering may take place, provided the actions of the group are peaceful.
2nd Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Ignore the two preparatory phrases, the salient point is that states cannot impair the right of the people to own weapons. Notice that there are no restrictions listed as to types of weapons.
5th Amendment (Due Process Clause): “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Deprivation of rights, life, liberty, or property by the state must be done by a management of that deprivation from a process described in law, which must have been passed by a legislature.
Conclusion – The Lockdowns are Unconstitutional
To quote my previous article, “We must keep in mind that the Constitution is not something we discard or set aside because we feel that it is inconvenient at the moment. There are no asterisks in the Constitution stating, “* except in time of pandemic or when a state governor declares an emergency.” The Constitution applies at all times.”
Executive orders are neither law nor due process.
An executive ordering that purports to limit the size of a peaceful gathering of citizens violates the 1st, 5th, and 14th Amendments. It matters not that the purpose of the order is supposedly to limit a virus or to enhance public safety. The only way around this is to have that reason vetted by the process of legislation and then enacted into law.
An executive order which directs a small business to close violates Article I, §10, C1 (contracts), the 1st Amendment (assembly) and the 5th Amendment (due process).
When Christians are arrested for peacefully protesting a business they oppose because they have 15, 20 or 200 people gathered, and are in contradiction of some governor’s executive order, their 1st Amendment (religion and assembly) and 5th Amendment (due process) rights have been violated.
When a county sheriff takes it upon himself to stop issuing pistol purchase permits because of some pandemic, his is violating citizens 2nd Amendment (bear arms) and 5th Amendment (due process) rights. This is on top of the fact that the law requiring the permit is unconstitutional in the first place as this is an infringement, and impairment, a hindrance to that right.
Etc., etc., etc. ad nauseum.
Governments are supposed to be protecting the rights of citizens. Instead, we are seeing states are trampling on citizens’ rights and using CoVid-19 as an excuse. Many governors have developed a bad case of LTS (Little Tyrant Syndrome), which we must remedy quickly. As I suggested in my previous article, read the Declaration of Independence, what these governors are doing is not far removed from the list of grievances against King George III. It is time for this to come to a stop.
If you agree, please sign my petition, write or call your representatives. Hold the government accountable not only at the ballot box but between elections as well.
Namaste & thank you for reading,
Mark
Appendix – A Comparison of Definitions of Key Words & Phrases, 1792 and 2020
Abridge
Johnson: To Abridge: def 3, “To deprive of.”
M-W: def 3, “formal: to reduce in scope: DIMINISH” and def 4, “archaic: DEPRIVE”
Arms
Johnson: To Arm, def 1, “To furnish with armor of defense, or weapons of offense.”
M-W: entry 3, def, 1a, “a means (such as a weapon) of offense or defense; especially: FIREARM”
Bill of Attainder
Johnson: Bill: def 4, “An act of Parliament.” Attainder: def 1, “The act of attainting in Law.” To Attaint: “to attaint is particularly used for such as are found guilty of some crime or offence. A man may be (?) attainted two ways, by appearance or by process (?).” [Note: Times New Roman italicized font is unclear in the PDF copy.]
M-W: “a legislative act that imposes punishment without a trial”
Certain
Johnson: def 6, “In an indefinite sense, some; as, a certain man told me this.”
M-W: def 2, “of a specific but unspecified character, quantity, or degree”
Contract
Johnson: f. def 1, “A bargain; a compact,” and def 3, “A writing in which the terms of a bargain are included.”
M-W: def 1a, “a binding agreement between two or more persons or parties; especially: one legally enforceable”
Due Process
Johnson: Due: def 3, “Whatever custom or law requires to be done.” Process, def 4, “Methodical management of any thing; as a chemical process.” And def 5, “Course of law.”
M-W: def 1, “a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles — called also procedural due process” and def 2, “a judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual — called also substantive due process”
Endow
Johnson: To Endow, def 1, “To enrich with a portion.”
M-W: def 3, “to provide with something freely or naturally”
ex post facto
Latin: “from after the deed”
M-W: “Ex post facto is Latin for ‘from a thing done afterward’. … An ex post facto law is one that declares someone's action to be criminal only after it was committed--a procedure forbidden by our Constitution.”
Infringe
Johnson: To Infringe: def 1, “To violate; to break laws or contracts,” and def 2, “To destroy; to hinder.”
M-W: def 1, “: to encroach upon in a way that violates law or the rights of another” and def 2, “obsolete: DEFEAT, FRUSTRATE”
Institute
Johnson: To Institute def 1, “To fix; to establish; to appoint; to enact; to settle”
M-W: entry 2, def 1a, “to originate and get established: ORGANIZE”
Immunity
Johnson: def 2, “Privilege; exemption,” and def 3, “Freedom.”
M-W: “the quality or state of being immune” Immune, def 3a, “marked by protection”
Just
Johnson: def 5, “True; not forged; not falsely imputed.”
M-W: def 2(a)1, “acting or being in conformity with what is morally upright or good: RIGHTEOUS”
Law
Johnson: def 2, “A decree, edict, statute or custom publickly (sic) established.”
M-W: def 1a(1), “a binding custom or practice of a community : a rule of conduct or action prescribed (see PRESCRIBE sense 1a) or formally recognized as binding or enforced by a controlling authority”; def 1a(2), “the whole body of such customs, practices, or rules,” and def 1a(3), “Common Law”: “the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the U.S. except Louisiana”
Legislative
Johnson: “Giving laws; law-giving.”
M-W: 1b, “belonging to the branch of government that is charged with such powers as making laws, levying and collecting taxes, and making financial appropriations.”
Liberty
Johnson: def 1, “Freedom as opposed to slavery.”
M-W: def 1c, “freedom from arbitrary or despotic (see DESPOT sense 1) control”
Men
Johnson: plural of Man, Man def 1, “Human being.”
M-W: plural of Man, Man def a1, “an individual human” and def b “the human race: Humankind”
Privilege
Johnson: f. def 1, “Peculiar advantage,” and def 2,” Immunity; publick (sic) right.”
M-W: entry 1 of 2, “: a right or immunity granted as a peculiar benefit, advantage, or favor: PREROGATIVE”
Republican
Johnson: a. “Placing the government in the people.”
M-W: adj. def 1a, “of, relating to, or having the characteristics of a republic” Republic: def 1b(1), “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law”
Secure
Johnson: To Secure def 2, “To protect, to make safe”
M-W: def 1b, “to put beyond hazard of losing or of not receiving: GUARANTEE”
Truth
Johnson: def 8, “Reality.”
M-W: def 2a, “the property (as of a statement) of being in accord with fact or reality”
Unalienable
Johnson: Alienable “That of which the property may be transferred.” Also, inalienable: “That cannot be alienated.” Also, un, “A Saxon privative or negative article answering to in of the Latins or a of the Greeks, on, Dutch. …”
M-W: Inalienable: “Incapable of being alienated, surrendered, or transferred.”
Endnote & Postscript
This was my second article on LinkedIn, originally published on April 14, 2020 and republished here on February 1, 2021. There was no artwork or imagery with the original posting, however, I've added a cover photo of my copy of the Pocket Constitution. Also, I've colorized some of the text in this publishing for ease of reading.
The White House petition mentioned has now either been removed from the web or buried in the Trump White House archives; if I find it, I will re-link it in the article.
As with my first article, it is interesting rereading this in light of the events that have transpired in the intervening 10 months.
Mark Stansell
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