I am deeply troubled by the cascade of events that we have seen in these United States since February of 2020. The rapid spread of the Wuhan coronavirus has caused politicians to veer off into panic mode policies. They’re acting like a herd of anxious Soccer Moms at Costco. They see the threat, and they instantly decide: “I’ve got to do something!” But instead of just holding a credit card to buying toilet paper rolls, they can write extra-constitutional policies “for the public good.” The end results are absurdities like having police breaking up funeral services or arresting lone surfers.
We are still at the stage of of tragi-comedy, but we may soon be at the stage of genuine risk of Truncheons and Tasers societal repression. When all public gatherings are banned, then that means that there is a de facto ban on public protests. Just ponder that for a minute.
All of this current mess seems to stem from several factors:
1. Our society is strongly media-driven.
2.) Our mass media is largely headquartered in New York City, and owned by moguls from New York City. Coincidentally, we currently have a president who was born and raised in New York City. The mass media sources in other major cities take their cues from the tone set by influential figures in New York City. Throughout the mass media, there is a tendency to believe that the world revolves around New York City, and that what is good for New York City is good for America. Since New York City has been disproportionately hard by the pandemic, this has skewed the national perception of its severity.
3.) While the population of the United States is now largely urbanized, policies created for urban masses do not always make sense in lightly-populated regions.
4.) Public health policy has always been a crude sledgehammers, with little leeway and few exceptions.
5.) Policymakers have a tendency to be myopic, parochial, and apply “one size fits all” solutions.
6.) Under “disaster” or “emergency” situations, policymakers are granted–or they simply assume–broad and discretionary powers. Presently, a lot of their discretion is translated into incredibly subjective lists of what businesses are deemed essential versus non-essential. This opens the door to personal likes and dislikes becoming the drivers of such public policy. We’ve already seen this in some states, where marijuana dispensaries were deemed “essential” while at the same time gun stores were declared “non-essential.” Our Founding Fathers warned of this, when they proscribed making any Bills of Attainder in the Constitution.
7.) State governors in most states can exercise emergency powers without the consent of their state legislatures. And some state legislatures are not in session. In Montana, for instance, the legislature only meets in alternating years, and their most recent session ended in February — weeks before their Democrat Governor issued a “Stay at Home” order.
8.) Many of the state-level decrees are open-ended. We are now in the midst of what Dr. Gary North presciently called Government By Emergency. Many of these emergency orders have no limitations on renewals nor a clear exit strategy.
9.) Public policy, by extension is inevitably a police power, which means exerting force. Whether wittingly or unwittingly, what bureaucrats decide becomes the marching orders for the boots on the ground, or should I more pointedly say, The Boots On The Face.
Meanwhile, Back At The Ranch
Out here in the hinterboonies, we already have social distancing. I live in a county where there are far more cows and deer than there are people. In fact, the population density is around three people per square mile.
For state governors to issue “stay at home” directives to their entire states is absurd. Policies that make sense in urbanized counties make little or no sense in rural counties. Why then, did they not leave such policymaking up the individual County Boards of Supervisors. Far too much power now exists at the state and Federal level. Rightfully, that decision-making should be at the county level. It is only at that level that policies will correctly match local happenings and demographics. In many rural counties the right policy will be making NO dictatorial policy, and simply encouraging county residents to use good sanitation, wear gloves and masks on public, and to avoid large gatherings.
Some Republican Governors With Backbone
More than 40 state governors have now decreed various forms of “shut-down”, “stay at home”, shelter-in place”, and/or business closure orders. One of those resisting is Wyoming. There, as of the day I’m writing this, Wyoming is the only U.S. state to not yet have suffered one COVID-19 attributed death and it has just a few scattered confirmed cases. Governor Mark Gordon has wisely declined to issue a state-wide “stay at home” order. Obviously, he realizes that doing so prematurely would wreck the Wyoming economy. As of Friday, April 3rd, 2020, the states that have yet to issue a statewide stay-at-home order are: Arkansas, Iowa, Nebraska, North Dakota, South Dakota, South Carolina, Utah and Wyoming. Not surprisingly, all of those states have Republican governors. It is good of them to show that they still have common sense, and backbones!
A prevention Worse Than The Disease
What we now face is the specter of multi-month “shut-down” and “stay at home” orders absolutely wrecking our national economy. I don’t want to sound insensitive, but what will we gain if we save the lives of “150,000 to 200,000 people” (per Dr. Fauci) but consequently slam our economy into a deep, long depression? Such a depression would cost untold suffering, true hardship, and might eventually cost the lives of millions of people, through malnutrition and suicide.
I’m not using hyperbole when I say “millions”. It has recently been estimated the 10 years of the Great Depression of the 1930s caused more than one million malnutrition and suicide deaths in the United States. A lot of these statistics were hidden by the fact that tuberculosis deaths, diphtheria deaths, alcoholism deaths, and infant mortality were all in decline all through the 1930s. These declines were because of alcohol prohibition (up until late 1933), then the lack of discretionary income to buy much alcohol, as well as ongoing medical advances that had begun in the 1920s. These death rate declines offset the malnutrition and suicide deaths–so the overall death rate actually declined. It is also noteworthy that before World War II, some deaths by suicide were falsely notated as “accidental” on death certificates, to spare families public humiliation.
I believe that in retrospect, the “stay art home” orders and forced business shut-downs will be seen at least as a trigger to a recession, but more likely a depression. Historians will only belatedly see that the method of prevention was worse for us as a nation than the disease. Yes, I’m all for “flattening the curve.” I don’t want to see hospitals get over-crowded. But this should be accomplished though voluntary measures–not tyrannical decrees.
Do Your Research
I recommend that you do not comply, when common sense tells you that an emergency order is both nonsensical and unconstitutional. When you hear of an order being issued by a state official, do some research and check to see if they actually have the constitutional authority to issue such an order. Oftentimes, such orders only meet the constitutionality test when those orders are issued to government agencies and employees–but not when directed to the general populace. Again, take the time to actually read your state’s constitution and statutes. Does your state constitution specifically grant such emergency powers? In many of the 50 states, you will find that it does not. Likewise, if emergency orders are issued by city or county governments, then do some research and find if such authority actually exists, at that level. We are a nation of laws, and powers cannot just be “assumed.” Any such made-up decrees do not carry the genuine force of law and are therefore null and void.
Just Say No
If you are confident that an emergency decree in unconstitutional, then be prepared to say: “I must respectfully decline your order, because it it unconstitutional. You lack genuine authority in this instance, because the order that you are following was issued in excess of constitutional authority.”
By all means continue to limit your exposure risk. Our good conscience and common sense dictates that we show restraint in our personal interactions, in the current pandemic. That is your decision. But do not be simply blindly obedient. There is a huge difference between exercising personal discretion and blind obedience to unconstitutional decrees. When the time comes, show some backbone. And please print out and carry a hard copy of the relevant portion of your state constitution and statutes. That way you will have something to point to, to back up your assertion of rights.
Lex Mala, Lex Nulla
There is an old legal maxim that is often quoted: “Lex mala, lex nulla.” This Latin phrase means “bad law is no law.” More precisely, we should quote Saint Augustine, who famously wrote: “Lex iniusta non est lex.” Which is most commonly rendered in English: “An unjust law is no law at all.”
Sometimes it is important to take a step back and look at a micro situation (like any particular legislative bill) from a macro perspective. I’ve quoted the following gem from American Jurisprudence before, but it is important to repeat it here:
“The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law but is wholly void and ineffective for any purpose. Since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed and never existed; that is, it is void ab initio. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, it follows that generally the statute imposes no duties, confers no rights, creates no office or liabilities, bestows no power or authority on anyone, affords no protection, is incapable of creating any rights or obligations, does not allow for the granting of any relief, and justifies no acts performed under it.
Once a statute is determined to be unconstitutional, no private citizen or division of the state may take any further action pursuant to its provisions. A contract that rests on an unconstitutional statute creates no obligation to be impaired by subsequent legislation. No one is bound to obey an unconstitutional law, and no courts are bound to enforce it. A law contrary to the United States Constitution may not be enforced. Once a statute has been declared unconstitutional, courts thereafter have no jurisdiction over alleged violations. Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines paid.” [JWR’s Emphasis Added.]
To maintain a free society, bad laws and edicts must be annulled, overturned, or otherwise stopped.
Rosa Parks Moments
We of course have to pick our fights wisely and not foolishly tilt at windmills. But when a fundamental right is violated by a bad law–or under color of law–then someone needs to make a firm stand. On a personal level, this can be costly. Most people cannot afford to pay for extended legal battles. Most of us who have charge of families cannot afford to lose our jobs and face incarceration. So count the costs before you make any fateful stand. But if you do, you can take heart in the knowledge that we now live in the Internet Age. Your struggle will not go unnoticed. They can’t stop the signal. Being the guinea pig in a test case is never comfortable. However, in the face of a genuinely bad law, someone needs to volunteer. Every freedom-loving nation needs exemplars like Rosa Parks to make a stand for liberty. The true Rosa Parks Moments for our nation have been few and far between. These are dramatic turning points in our nation’s history, often initiated by just one stalwart citizen making a stand.
Alcohol Prohibition ended 87 years ago, primarily because of massive non-compliance. The Federal ban on marijuana is presently being rendered ineffective by decades of massive non-compliance followed by state legalization. In 10 States and even in Washington, DC, marijuana has been legalized for recreational use for those 21 and older. And now medical marijuana has been legalized in 33 states. Regardless of your opinion of The Wacky Tobaccy, we must recognize that this is a prime example of a societal sea change, through Constitutional processes.
In sum, the Lex Malum can be eliminated several ways:
- Polite pressure on legislators with calls, letters, and speaking up at Town Hall meetings.
- Individuals simply flouting laws (non-compliance).
- Non-enforcement by conscientious officials.
- Jury nullification.
- Launching test cases. (Read: “Get yourself arrested and probably face prison.”)
- Filing Title 18:241, 18:242, 18:245, 18:247, and 18:14141 lawsuits.
- Public rallies and protests.
- Civil disobedience. (Read: “Get yourself arrested — on a misdemeanor.”)
- And as an absolute worst case, recourse to the force of arms.
The last on that list, at its core, is what the 2nd Amendment guarantees.
Of those methods I listed, test cases are the most time consuming and frustrating. Some cases take decades to work their way up the chain in the appeals process. Frustratingly, the Supreme Court can decline to hear cases, for a variety of reasons.
A Law-Abiding Nation
With few equals, the United States is a nation of law-abiding citizens. For generations, Americans have been raised to respect the law. In recent years, this innate respect has gradually transitioned to fear. William Shakespeare once famously wrote: “Thus conscience does make cowards of us all…” But in our modern age, I submit that it is the law and police power that makes cowards of us all. I urge my readers to be brave in the face of unconstitutional laws and edicts. Make a stand for what is right. Again, it may come at a great cost and personal sacrifice. But always remember that we are Americans, and in the end we collectively can be trusted to do what is righteous. Also remember that We The People are the sovereigns. If we recognize God’s authority, then we are still the final arbiters of our national destiny.
I’ll close with a quote from Congressman Larry McDonald: “There are four boxes to be used in the defense of liberty: the soap box, the ballot box, the the jury box, and the ammo box. Please use in that order.” If you think that Rosa Parks Moments are full of drama, then wait until you witness a Battle of Athens, Tennessee Moment. Lord help our nation if we ever have to resort to opening that final box.
Please pray for divine intervention for our nation. Pray for repentance and that God would spare us his wrath.
Lastly, Just Say No, to tyranny. – JWR