Covid-19 Lockdowns Violate the US Constitution

The extensive and continued Covid-19 restrictions on human activity throughout the United States over the past year is not only contrary to an honest examination of public health data and economic impact, but it also violates our freedoms outlined in the US Constitution. This is a vital issue that has been almost entirely ignored by the media. 

During a December 4, 2020 virtual event of the Bastiat Society of Washington, DC, attorneys Robert Barnes of Barnes Law LLP and Patrick Wright of the Mackinac Center for Public Policy spoke on the heavy use of government emergency decrees in responding to the Covid-19 pandemic. Mr. Barnes made the case that the ongoing emergency decrees imposed on Americans are both unprecedented in American history and a violation of our constitutional rights. Mr. Wright focused more specifically on the current court challenges to various state emergency decrees, most notably those in Michigan imposed by Democratic Governor Gretchen Whitmer. Mr. Wright’s court updates will be covered in a subsequent article.

Mr. Barnes provided the following historical references in making his case against the imposition of emergency public health lockdowns:

America’s Founders saw no need for emergency exceptions to personal liberty. In the 12 years from 1775, when American colonists began contemplating a declaration of independence from Britain with a bill of rights, until 1787 when the new Constitution of the United States was signed, the 13 British colonies turned American states suffered no less than seven epidemics. These epidemics, comprised of smallpox and influenza, had mortality rates as high as thirty percent — the highest in American history. 

Despite the devastating impact of these epidemics during the early years of the new American republic when the U.S. Constitution and the Bill of Rights were being deliberated and debated, no one ever proposed or suggested that public health exceptions or any kind of emergency exceptions be included. Furthermore, during the 19^th and 20^th centuries when the United States suffered through additional deadly epidemics (including the widespread Spanish Flu pandemic of 1918-1920), no public officials ever proposed that Americans’ constitutional rights be suspended, even temporarily, for public health reasons.

The historical norm of noninterference in American constitutional rights vanished over the past year after the first Covid-19 cases and deaths were reported in the United States in March 2020. By late April 2020, 43 of 50 states had issued stay-at-home orders and the closing of schools and “nonessential” businesses. While most stay-at-home orders were lifted within a month or two, the closing or severe in-person restrictions on schools and businesses arbitrarily considered to be “nonessential” has continued in many states. These lockdown orders are not only in violation of the US Constitution, but also of state constitutions that typically allow for short-term emergency decrees by governors of between 14 days to 60 days. 

So, if these lockdown orders are unconstitutional, why were they imposed and how were they justified? As Mr. Barnes explained, government officials and courts across the United States have been using long discredited legal precedent as the basis for justifying lockdowns, particularly the infamous 1905 US Supreme Court decision of Jacobson v. Massachusetts. The Jacobson decision served as the foundation for two other notorious court decisions, the Buck v. Bell decision of 1927 and the Korematsu v. United States decision of 1944. Mr. Barnes refers to these three US Supreme Court decisions as the “Trilogy of Infamy,” because they unjustly violated the constitutional rights of American citizens. 

• The Jacobson v. Massachusetts decision of 1905 concerned a Massachusetts state resident, Henning Jacobson, who sued his state for violating his 14^th Amendment rights by prosecuting him for refusing to receive a smallpox vaccination. Jacobson stated that both he and his son had bad reactions to earlier vaccinations. The US Supreme Court ruled against Jacobson, because it considered the state’s vaccination order to be reasonable for the protection of the state’s public health. The court’s decision resulted in a national backlash with an anti-vaccination movement and the founding of the Anti-Vaccination League of America three years later. Nonetheless, this case has provided the precedent for justifying Covid-19 executive orders over the past year despite not being cited as a precedent in any other public health cases for almost 100 years. 

• The Buck v. Bell decision of 1927 involved a lawsuit by a woman, Carrie Buck, and her guardian against John H. Bell, superintendent of the Virginia State Colony for Epileptics and Feebleminded, to prevent her from being forcibly sterilized by the state for being diagnosed as intellectually disabled. The state was empowered with this sterilization authority under a 1924 Virginia statute. The US Supreme Court ruled against Buck and upheld the Virginia statute. Virginia eventually repealed this sterilization law in 1974. Legal scholars have long commented that the Buck v. Bell case is one of the worst Supreme Court decisions ever rendered as a gross infringement on a person’s constitutional rights.

• Last but not least, the Korematsu v. United States decision of 1944. This case involved a Japanese-American citizen, Fred Korematsu, who refused to comply with President Franklin Roosevelt’s 1942 executive order directing the forced relocation of Japanese Americans living in certain areas into internment camps during World War II. Korematsu was arrested and jailed for refusing to comply with the order. Korematsu challenged his conviction in court by claiming that it was a violation of his constitutional rights under the 5^th Amendment. The US Supreme Court ruled against Korematsu, because it held that Roosevelt’s order was valid in order to protect the US military against the dangers of espionage and sabotage by ethnic Japanese living in the United States. This decision has also been widely criticized in legal circles and Korematsu’s conviction was ultimately overturned in 1983 by a US district court.

Despite the above three cases being widely regarded as wrongly decided, unconstitutional, and long discarded legal precedents of the past, the Jacobson decision has been resurrected as a justification for current state governments to impose unprecedented control over human activity since the Covid-19 pandemic hit the United States in March 2020. In fact, over the past year, various courts have referenced the Jacobson decision to support the extensive and prolonged use of emergency orders by government executives. Both the Buck and Korematsu cases illustrate the dangerous path that courts have been willing to take to justify government emergency actions.

To reinforce the point about the dangers of government emergency orders, Mr. Barnes also referenced the constitution of the now-defunct Weimar Republic in Germany. During its existence from 1919 to 1933, the Weimar Republic was governed by the Weimar constitution. At the time of its inception, it was praised as a great new constitution establishing a representative democracy with a bill of rights. However, the Weimar constitution had a fatal flaw: it provided an exception for the president to issue orders without parliament’s approval in times of emergency. Since the Weimar constitution did not define an emergency, it eventually led to abuse of power and the Nazi Party asserting dictatorial control over Germany in 1933 on the basis of national emergency. 

The heavy-handed use of government executive emergency orders issued over the course of the prior 12 months should give all Americans cause for concern about the protection of our personal liberties and constitutional rights. Americans need to be better informed about not only the economic consequences of government public health lockdowns, but also about the recent and unprecedented infringement on our personal liberties as decreed in the US Constitution. 

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