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Di Leo: Are we retreating from the US Constitution at breakneck speed?

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Chicago's streets were empty Tuesday when they would normally be jammed – The National Desk

By John F. Di Leo -  

Cities, colleges, and school districts are ordering students to study online from home; dioceses are cancelling their public mass schedules; states are ordering restaurants to close and demanding that theaters and conventions cancel or reschedule.

We are seeing commerce shut down over fears of the Wuhan virus. 

While there’s nothing to say, politically, about the choices of private organizations like churches and businesses to go on hiatus, there is indeed a constitutional crisis erupting as governments engage in actual mandates of this nature. Our Constitution clearly requires that all takings require just compensation, and we haven’t heard these states offering to compensate restaurants for lost diners or theatergoers (most of our states are bankrupt themselves; how could they?).

There is a reason why our Founding Fathers designed a government that was extremely limited in scope.  If they didn’t limit the powers of elected officials, eventually, some would surely take it upon themselves engage in tyranny of one kind or another, whether it be the closing of a newspaper because they didn’t like its politics, or the setting aside of land because some well-connected special interest desired it, or the closure of businesses out of some fear, perhaps even a legitimate fear, choosing on their own, as the government, to trade one ill (bankruptcy, unemployment, and poverty) for another ill (a random chance of catching a contagious sickness with a random chance of death).

This is not to say that the chance of illness isn’t real, and even significant for some.  Of course it is. 

But the questions we face are, is the cure worse than the disease, and is it really government’s role to make this decision for us?

After all, we have always had the right to self-quarantine, when a situation warranted it.  Before our state governments started imposing such edicts in mid-March, countless businesses and schools across the country were already acting on their own, without the stick of government spurring them on, to switch to remote learning and remote employment.

In short, the private sector was already taking measures to address the issue.  Whether the fear of mass contagion was rightly placed or overblown, as long as the private sector chose how to respond, it was those individuals’ choice to do so.

But when the government steps in, we now have a place to lay blame, a place we might not have had otherwise. 

Under the takings clause of the constitution, governments who place these orders must make provision to make people whole again. 

But how can they do that?  The sheer volume of economic destruction is already incalculable, from stock market losses to lost ticket sales and lost dinner revenue.  If they do not make restitution, these elected officials – governors, mayors, etc. – are in violation of our nation’s highest law and must be prosecuted and imprisoned for such a massive crime.  But if they do make restitution, they can only do so by taxation and/or an inflation of the currency, which hurts everyone. 

As our Founding Fathers knew, once the government intervenes, there is no winning.

Why is the government doing this? 

Yes, it is to protect some lives.  Maybe many lives.  But at what cost?  The economic downturn that results from this action will also cause many others to suffer and even die, because that’s how government action works, when it interferes in the market: it shifts burdens, it doesn’t eliminate them. 

Let’s just think of the hospitality and entertainment industry, for a start. How many theaters, convention centers, hotels, travel agents, car rental firms, caterers and restaurants will be unable to weather this storm, and will never reopen after a month without customers? Ten percent? Twenty? Thirty?   How many thousands of people worked for these businesses, until their dictatorial governors took the arbitrary step of closing them down?

Of the people broken economically by this manufactured recession, many will find themselves unable to recover; many will be broken physically or emotionally by it (remember the many suicides in the aftermath of the crash that started the Great Depression).  There will be people addicted to drugs or drink, or rendered homeless as a result.  Yes, that happens anyway, to some, but when the government owns the blame, it’s another matter, isn’t it?

Let’s consider some of the other risks in American life: Old people, walking home in the inner city, too weak to fight off attackers, are mugged or killed in alleys. All the time. Young women, in the same neighborhoods, walking home from work, are robbed or raped in those same alleys. All the time. That’s inner city life today.

These are severe risks – thousands and thousands of such crimes occur in our inner cities every year (in some cities, they reach the thousands every month) –  and we could almost completely eliminate these crimes if we simply enforced an absolute all-ages curfew from dusk until dawn.  Unfortunately, it would also be incredibly limiting to the quality of life for the residents of these crime zones. So, we don’t do it.

Drivers and pedestrians alike are at risk of automotive accidents.  Hundreds of thousands are injured, and thousands are killed, year after year, in often horrific crashes.  We could put an end to this risk too, if we really wanted to, by banning vehicular transport.  Restrict people from motorized vehicles, and we save hundreds of lives.  Unfortunately, turning the clock back 120 years in this way would also be incredibly limiting to both the leisure and commercial aspects of American life. So, we don’t do it.

The same can be said of so many arenas of human life.  We could eliminate sports injuries by banning sports; we could eliminate mountain climbing injuries by completely closing the national parks off from the public.

But these are the United States of America, a nation built on the restraint of government and the embrace of individual liberty.  One of the key themes of our nation, from its very birth, is Benjamin Franklin’s maxim, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” 

Our freedom has risks, but it also has incredible rewards.

We take this position for a reason.  It is both a matter of our philosophy of individual liberty and a genuine, even proven, belief that it genuinely works.  The American transformation from basic settlement to advanced civilization in just a couple hundred years is testament to the success of this approach.

What we see before us, unfolding in a matter of days, at breakneck speed, is an almost-complete abandonment of the American way of life.

Copyright 2020 John F Di Leo

John F Di Leo is a Chicagoland-based international transportation manager, writer and actor. A former county chairman of the Milwaukee County Republican Party, his columns have been found in Illinois Review for eleven years now.

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8 COMMENTS

  1. Government cannot protect ALL the people ALL the time.
    For those in government to say it CAN is to foster a dangerous lie. But such lies are always a tool they use to enlarge government size, scope and power against us.
    The Second Amendment was put in place as a shield against this type of expansive tyranny.

  2. State and local governments have always had virtually unlimited powers to deal with public health emergencies. It is only the federal government that is at least in theory limited. Watch the 1938 classic Bette Davis film “Jezebel” for a dramatic illustration of unlimited local powers.

  3. John might be correct. Our government started quickly ignoring the Constitution in the 1970’s, when Congress established the Departments of Energy, HHS, and Education. None of those subjects is in the Constitution.

  4. Phil, the beginning of the end was Eisenhowers Highway bill, that was the death knell of the Constitution as he did not even feign Constitutional authority. Before then, administrations at least tried to cast the illusion that it was a legitimate use of Constitutional authority.

  5. And what have those three departments accomplished?
    Department of Energy doesn’t provide any,
    Department of Education hasn’t taught any students,
    HHS doesn’t operate hospitals, and the only people it “services” is paying it’s own employees!

  6. It is unlikely that restrictions on peaceable assemblies of any size are ultimately allowed under the Constitution of the United States. The First Amendment is incorporated to apply to all levels of government, not just that in Washington DC.
    It is one thing to appeal to citizens to act on behalf of the common good, but quite another to do so under the color of law. It strikes at the heart of the Republic, indeed was one of the reasons for that Republic’s establishment.
    Quarantine has always applied to persons known to have or carry an infectious disease. Based on official statistics, only 10% of those tested for COVID-19 have been infected, and those tests are only given to those with reasonable suspicion of infection.
    We are demanding a lot of the 90%.