The Constitution vs. the Coronavirus Lockdowns
By Victor Sperandeo with the Curmudgeon
Described in this article, California and the SF Bay Area have been hit hard with severe restrictions due to rising coronavirus cases, hospitalizations and deaths. That adversely effected all retail stores and restaurants, many of which closed permanently. Thought that was bad? Well, it’s just gotten a whole lot worse!
California’s new stay at home order, first announced Wednesday, mandates mask wearing and physical distancing and prohibits private gatherings of any size from Napa to San Diego and from San Francisco to the Nevada state line. It means all businesses and public facilities in the Bay Area that aren’t considered critical infrastructure must close until the order is lifted.
The latest “shelter in place” order was declared by California’s state government when the percentage of available ICU beds dropped below 15%. It requires residents of Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma counties to stay home except for an essential job or to shop for essential needs. Much of the Bay Area had already shut down, but all the remaining sit-down dining, including outdoor seating, and all nonessential businesses must now close.
Better think twice if you plan to go to San Francisco for business, vacation or to visit relatives. As of Thursday, anyone staying in the city — whether visitor or returning resident — is required to stay in their home, rental, or hotel room for 10 days. And hotels are only open to critical infrastructure workers on assignment. Well then, how do they do their job if they’re quarantined?
Being extremely disturbed by all of the above (and much more), I kindly asked Victor to research if all these lockdowns and restrictions were constitutional – at both the State and Federal level. He graciously obliged and the impressive result is chronicled in this article, the contents of which you won’t find anywhere in the mainstream media.
The Curmudgeon blog posts attempt to add insight, analysis, and comments on the global economy as well as the various markets traded around the world.
However, this year “politics” have controlled the markets. The COVID-19 pandemic allowed the 50 states in the U.S. to create polices that have gravely effected small businesses, which have in turn seriously impacted the real economy and the markets. Earlier this year, we analyzed the high costs of the “shelter in place” orders. In this post we attempt to answer a critical question:
What does the U.S, Constitution (“the Supreme Law of the Land“) allow State Governors, City and County Officials, Health Officers, and other bureaucrats to do regarding “stay at home” orders and other restrictions on individuals and businesses?
Explanation of the Constitution:
The Supremacy Clause of the Constitution addresses the legal status of the laws that other parts of the Constitution empower Congress to make, as well as the legal status of treaties and the Constitution itself. The core message of the Supremacy Clause is simple: the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law. All other laws, edicts, mandates, directives, decrees, and orders must be in sync with the Constitution.
With that point now clear, let’s review the basics of the Constitution. It is a Liberty, (and less broadly) a Freedom document, or a COMPACT with all the States, that establishes the social and political system for the U.S.
Philosophically, “Morality/Ethics” is a guide to how individuals should live, and Politics is how “Society” should behave. All states within the United States have agreed, through ratification that they will abide by the Constitution.
The Constitution is approximately 4,543 words, while the Bill of Rights (the first 10 amendments) is about 652 words. The Declaration of Independence is 1,320 words. That’s a total of about 7,200 words.
The first and second amendments are examples of very clear writing that everyone can understand (note bold font text added for emphasis).
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.
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.
The Constitution does not allow for “regulations, “which are laws that oppose or infringe on the Bill of Rights. State and local governments CANNOT CHANGE these basic rights, without going through the Amendment Process, as written in the Constitution.
U.S. Founding Father James Madison said:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
These are the basic principles. For a history of how the Founding Fathers derived the Constitution, see Kris Anne Hall’s [1.] YouTube video titled, “The Genealogy Of Our Constitution.”
Note 1. Ms. Hall teaches the Constitution full time. Her video depicts how these CONSTITUTIONAL laws were derived in over 700 years of English history, which include: The Five Liberty Charters; From Ethelred to William II; The 1100 Charter of Liberties; King John, 1215 Magna Carta; King Charles 1; Petition of Rights, Grand Remonstrance, English Bill of Rights, all leading to creation of the U.S. Declaration of Independence and the Constitution.
Are the COVID-19 Lockdowns and Restrictions Legal?
Given the above information, one must ask if the Covid-19 lockdowns and restrictions ordered by states and local governments are in effect edicts which are Constitutional?
The answer is an emphatic NO!
Nowhere is it stated that states (or local governments) may override the protections stated in the Constitution. That includes two provisions of the first amendment: “respecting an establishment of religion” or prohibiting the free exercise thereof and gathering “peaceably to assemble.” Both those rights have been violated by some lockdowns (like the Stay-at-Home order now in effect throughout California).
Do you need a Judge to understand this?
The U.S. Constitution does not provide exceptions for a flu, a virus or any type of pandemic!
Was COVID-19 Unanticipated by the U.S. Founding Fathers?
No! The Founders were the most learned educated group of people in history. They understood that the plagues and deadly diseases of the previous 2,000 years before 1787. There were at least 10 major killer disease periods that took place since 200 BC. Small Pox and the Black Plague were the deadliest and much, much greater than COVID-19 hospitalizations and deaths.
The methods to address those diseases were not made into laws, as they were best handled by the States individually. It’s crucial to note that how a State addressed the diseases could NOT conflict with the Constitution.
The way the states addressed all kinds of problems caused by “nature” was to call each one an “emergency.”
In times of war, disease or other extraordinary conditions, each state may authorize its governor to declare a state of emergency. Once an emergency has been declared, executive powers expand until the emergency ends. These powers include authority normally reserved for legislatures, such as the ability to suspend existing statutes or effectively create new laws—albeit temporarily and only as needed to respond to the emergency situation.
In Texas, the time limit for an “emergency” is 72 hours. The legislature by law may terminate a state of disaster at any time. If the Governor wants to go beyond the Texas state law for an “emergency” a new law must be passed by the State legislature.
“In California, a state of emergency may not continue for longer than 30 days unless extended by joint resolution of the Legislature, which may also terminate a state of emergency by joint resolution at any time. The governor shall issue an executive order ending the state of emergency on receipt of the Legislature's resolution.”
During the COVID-19 crisis, some States kept changing the pandemic induced lockdowns by whim, with the Governors making up “emergencies.”
The best example of this is in California which has flipped flopped from one pandemic lockdown system to another. It is now back full circle with a Stay-at-Home order as described in this article. Note that a state of emergency in California has lasted for nine months- much longer than 30 days! It will remain in effect at least until January 4, 2020.
The bottom line here is that if the people of the states under lockdown allow themselves to become “prisoners” of the state or local governments by accepting their dictates then history clearly shows they will become slaves.
Can State Governors Make Laws?
This pandemic gave rise to a despotic process in which Governors made effective “laws” (e.g. Stay at Home orders, County rating systems, etc) which they were not legally permitted to make.
As state managers, governors are responsible for implementing state laws and overseeing the operation of the state executive branch, but they CANNOT make the laws.
Contrast that with the Spanish Flu pandemic in 1918-1920 where there were no mandated shutdowns, and the U.S. elections went on as usual.
Lockdowns, Shutdowns and the Fifth Amendment:
The Fifth amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Does the above text not rule out in advance any edict of shut down without compensation beyond emergencies? Of course it does!
If the Government comes to its citizens and says I want your property -would a citizen give it to them? Only if they don’t know their rights!
What about Fines?
If, as a result of a conviction, the defendant has the obligation to make restitution to a victim of the offense, other than the United States, the court shall impose a fine or other monetary penalty only to the extent that such ...a) Factors To Be Considered.—In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a)
In other words, you should hire a lawyer and sue the State or Local Governments for harassment and persecution and do not comply with these edicts, as they are not laws.
Thanks for the U.S. Declaration of Independence:
We should all thank the 56 men who signed the Declaration of Independence every day! Please consider the last two sentences in this great and unique gift:
“And who put forth this political system of government and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
Can you please name any federal state or local government official that would say the same today?
Conclusions and End Quote:
The 50 States are like separate nations legally, except for what they agreed to in ratifying the U.S. Constitution. Therefore, (Nation) States can establish their own laws.
Most people don’t understand that States like Utah, New York, California, Vermont, etc. are “legally” no different than countries like France, Germany, etc. other than the rights and laws set out in the U.S. Constitution.
President Trump could not rule on state lockdowns, although initially he agreed with the Governors that imposed them. He has no power to interfere with the State decisions, but the Supreme Court does. They are the last stop protector of the people’s life, liberty, and property when politicians become oppressive and do unconstitutional acts.
However, the people have to fight for their rights all the time.
To quote Beta Metani'Marashi: ”People are more powerful than their politicians, if they exercise their right!”
For the past year, I’ve maintained that America is in deep decline. This is primarily based on the corruption of the rule of law. It is virtually gone.
I blame U.S. Attorney General Bill Barr who covered-up for the Deep State, and the Establishment, and never really looked at the facts of the claims in the last election. Also, Chief Justice John Roberts and the other sheep at the “Supreme Court” that refused to hear the state of Texas lawsuit representing 40% of the states (on its way to 60%) and over 74 million people who voted for Trump.
"Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections," the Supreme Court said in a brief unsigned opinion.
And on Friday, the Supreme Court refused to consider a lawsuit seeking to block President Trump’s plan to exclude illegal immigrants from the census population count used to allocate congressional districts to the states. The unsigned decision said that “judicial resolution of this dispute is premature” in part because it is not clear what the administration plans to do.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court’s ruling said.
To not “hear the arguments” and do their job, is a critical issue for the Supreme Court justices. They have a lifetime job courtesy of U.S. taxpayers. Yet they’ve ducked their responsibility by refusing to hear these two cases.
In my opinion, if the U.S. Supreme Court refuses to adjudicate on legitimate lawsuits, then the rule of law is gone. The result of that would be anarchy, which is something that would destroy America. Let’s hope that doesn’t happen!
Good health, stay calm and safe, persevere under lockdowns and till next time….
Follow the Curmudgeon on Twitter @ajwdct247
Curmudgeon is a retired investment professional. He has been involved in financial markets since 1968 (yes, he cut his teeth on the 1968-1974 bear market), became an SEC Registered Investment Advisor in 1995, and received the Chartered Financial Analyst designation from AIMR (now CFA Institute) in 1996. He managed hedged equity and alternative (non-correlated) investment accounts for clients from 1992-2005.
Victor Sperandeo is a historian, economist and financial innovator who has re-invented himself and the companies he's owned (since 1971) to profit in the ever changing and arcane world of markets, economies and government policies. Victor started his Wall Street career in 1966 and began trading for a living in 1968. As President and CEO of Alpha Financial Technologies LLC, Sperandeo oversees the firm's research and development platform, which is used to create innovative solutions for different futures markets, risk parameters and other factors.
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