By Judge Andrew Napolitano – July 9, 2020 – for Fox News
My cmnt: I am not a fan of Napolitano and have been ignoring him as a biased anti-Trumper. He actually wanted HildeBeest (Michelle O’s nickname) elected over Trump. That is insane and kind of demented. That Napolitano has gotten too full of himself is the bottom line. Nevertheless some of this column (I’ve edited it down, taking out what I don’t agree with – this is MY blog after all) is spot on. Our Constitutional liberties are being trampled in the name of public safety. This brings to mind the phrase “The Constitution is not a suicide pact,” a saying attributed to Abraham Lincoln, defending his order to suspend habeas corpus during the Civil War. Balancing the survival of a nation vs. the liberty of its citizens, like everything else in life, is tricky. Covid-19 does not rise to that level.
This summer in America, we are approaching the end of a civilized and free society as we have known it.
The freedom to walk outside without worrying for your life and the reliance that constitutional freedoms are guarantees that the government will honor have dissipated. The effects are anarchy in the streets and a loss of liberty for everyone.
The root cause of both is the failure of government.
The anarchy was born in legitimate dissent and has morphed into deadly violence. The dissent was provoked by the public torture and murder of George Floyd, a Black man, by a white Minneapolis police officer.
But what began as legitimate, constitutional and laudatory dissent has become, in some places, violence and anarchy.
The longer the violence remains unabated, the more pervasive it will become. It is largely unabated because many public officials rely on those committing the violence and their supporters for political backing.
Hence, the utter anarchy in Seattle, where a mayor and a governor declined to restore basic legal protections on the streets. A group of armed thugs, claiming to be liberators, took over a six-block area of that once beautiful city. They destroyed property, prevented travel and commerce and even caused the deaths of innocents. Until death reared its unforgiving head, the police stayed away because the mayor told them to leave the neighborhood alone.
At the other end of the societal breakdown are the profoundly unconstitutional power grabs by mayors and governors in the name of public health. They have effectively nullified the Bill of Rights by using the police to infringe upon religion, speech, assembly, travel, self-defense, privacy, commercial intercourse, due process and the sanctity of voluntary contracts.
These government leaders have concocted their own rules and had them enforced as if they were law.
The hypocritical New Jersey Gov. Phil Murphy violated his own social distancing rules by marching arm-in-arm with protestors, and his own restaurant lockdown orders by visiting a restaurant secretly serving food indoors — and he famously mocked the Bill of Rights as above his paygrade during an appearance on Fox News.
What’s wrong here?
It is exquisitely wrong for mayors and governors to write their own laws. It is also unconstitutional; in America, only a popularly elected representative body — not the entity that enforces the laws — can write them.
My cmnt: AND then they must pass constitutional muster. This is always the tricky part. The nine Justices can (and have) interpreted the law anyway that suits them personally and politically. That is why we need more originalists on the court.
New York Gov. Andrew Cuomo takes refuge in legislation enacted at the outset of the COVID-19 pandemic giving him the power to regulate private behavior. But that legislation is unconstitutional because it violates the Guarantee Clause of the Constitution. That clause mandates that the states have the same separation of powers as the federal government does, and thus only the legislative branch writes the laws.
When the governor both writes a law and enforces it, he ceases to be a governor and becomes a prince.
James Madison’s constitutional genius irretrievably separated these two functions, just as it separated the judicial function from the legislative and the executive.
American civilization is being squeezed this summer by two factions — anarchists, enabled by politicians who want their support, and tyrannical mayors and governors. Often — in an irony that history will find to be bitter — the same folks.
Their victim is personal liberty in a free society. The liberty to walk the streets of Seattle or New York City unmolested and the liberty to be oneself and take chances. The liberty to be free from thugs in the streets and the liberty to exercise our formerly guaranteed fundamental rights.
What to do?
The Supreme Court needs to invalidate its opinions that hold that the police have no duty to protect life and property. That would mean that their moral and legal duty to enforce the laws would transcend the mayoral and gubernatorial interference with those laws.
Stated differently, the law would supersede the decision of the Seattle mayor that kept the cops off — and the thugs on — the city’s streets.
My cmnt: of course this process of elected officials and STATES and CITIES deciding to NOT uphold the immigration laws preceded all of the current lawlessness. Sanctuary cities and states are illegal, unconstitutional and evil. Declaring your city a sanctuary from the laws is what the South was doing after the slaves were freed.
State legislatures need to enact laws absolutely prohibiting governors from trampling the Bill of Rights, because the Constitution has no emergency exceptions.
How does this end?
Will a pliant majority accept thugs in the streets? Will it accept tyrannical governance in the name of public health? Will the tyrants return our freedoms when the pandemic has passed? Will this lead to vigilantes or martial law?
My cmnt: the bitter irony of this ‘pandemic’ (nearly identical in extent to the seasonal flu) is that we have endured all of this national trauma unnecessarily. Fauci and Pelosi originally downplayed Covid 19 as nothing to worry about. Then they realized its potential to hurt America and Trump financially and politically and did an abrupt about-face and declared it something akin to the bubonic plague.