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Draconian Lockdown Powers: It’s a Slippery Slope from Handwashing to House Arrest

John W. Whitehead
April 6th, 2020
The Rutherford Institute
Comments (17)

This article was originally published by John W. Whitehead at The Rutherford Institute. 

“Everything can be taken from a man but one thing: the last of the human freedoms — to choose one’s attitude in any given set of circumstances, to choose one’s own way.”—Viktor Frankl

We still have choices. Just because we’re fighting an unseen enemy in the form of a virus doesn’t mean we have to relinquish every shred of our humanity, our common sense, or our freedoms to a nanny state that thinks it can do a better job of keeping us safe.

Whatever we give up willingly now—whether it’s basic human decency, the ability to manage our private affairs, the right to have a say in how the government navigates this crisis or the few rights still left to us that haven’t been disemboweled in recent years by a power-hungry police state—we won’t get back so easily once this crisis is past.

The government never cedes power willingly.

Neither should we.

Every day brings a drastic new set of restrictions by government bodies (most have been delivered by way of executive orders) at the local, state and federal level that are eager to flex their muscles for the so-called “good” of the populace.

This is where we run the risk of this whole fly-by-night operation going completely off the rails.

It’s one thing to attempt an experiment in social distancing in order to flatten the curve of this virus because we can’t afford to risk overwhelming the hospitals and exposing the most vulnerable in the nation to unavoidable loss of life scenarios. However, there’s a fine line between strongly worded suggestions for citizens to voluntarily stay at home and strong-armed house arrest orders with penalties in place for non-compliance.

More than three-quarters of all Americans have now been ordered to stay at home and that number is growing as more states fall in line.

Schools have canceled physical classes, many for the remainder of the academic year.

Many of the states have banned gatherings of more than 10 people.

At least three states (Nevada, North Carolina, and Pennsylvania) have ordered non-essential businesses to close.

In Washington, DC, residents face 90 days in jail and a $5,000 fine if they leave their homes during the coronavirus outbreak. Residents of Maryland, Hawaii and Washington State also risk severe penalties of up to a year in prison and a $5,000 fine for violating the stay-at-home orders. Violators in Alaska could face jail time and up to $25,000 in fines.

Kentucky residents are prohibited from traveling outside the state, with a few exceptions.

New York City, the epicenter of the COVID-19 outbreak in the U.S., is offering its Rikers Island prisoners $6 an hour to help dig mass graves.

In San Francisco, cannabis dispensaries were included among the essential businesses allowed to keep operating during the city-wide lockdown.

New Jersey’s governor canceled gatherings of any number, including parties, weddings and religious ceremonies, and warned the restrictions could continue for weeks or months. One city actually threatened to prosecute residents who spread false information about the virus.

Oregon banned all nonessential social and recreational gatherings, regardless of size.

Rhode Island has given police the go-ahead to pull over anyone with New York license plates to record their contact information and order them to self-quarantine for 14 days.

South Carolina’s police have been empowered to break up any public gatherings of more than three people.

Of course, there are exceptions to all of these stay-at-home orders (in more than 30 states and counting), the longest of which runs until June 10. Essential workers (doctors, firefighters, police and grocery store workers) can go to work. Everyone else will have to fit themselves into a variety of exceptions in order to leave their homes: for grocery runs, doctor visits, to get exercise, to visit a family member, etc.

Throughout the country, more than 14,000 “Citizen-Soldiers” of the National Guard have been mobilized to support the states and the federal government in their fight against the coronavirus. While the Guard officials insist they have not been tasked with martial law, they are coordinating with the Pentagon, FEMA and the states/territories on COVID-19 response missions.

A quick civics lesson: Martial law is a raw exercise of executive power that can override the other branches of government and assume control over the functioning of a nation, state, or smaller area within a state. The power has been exercised by the president, as President Lincoln did soon after the start of the Civil War, and by governors, as was done in Idaho to quell a miner’s strike that broke out there in 1892.

In areas under martial law, all power rests with the military authority in charge. As British General Wellington wrote, “martial law” is no law at all, but martial rule; it abolishes all law and substitutes for it the will of the military commander. Military personnel are not bound by constitutional restrictions requiring a warrant and may enter and search homes without judicial authorization or oversight. Indeed, civil courts would no longer be functioning to hear citizen complaints or to enforce their constitutional rights.

Thus far, we have not breached the Constitution’s crisis point: martial law has yet to be overtly imposed (although an argument could be made to the contrary given the militarized nature of the American police state).

It’s just a matter of time before all hell breaks loose.

If this is not the defining point at which we cross over into all-out totalitarianism, then it is at a minimum a test to see how easily we will surrender.

Curiously enough, although Americans have been generally compliant with the government’s suggestions and orders with a few notable exceptions, there’s been a small groundswell of resistance within parts of the religious community over whether churches, synagogues and other religious institutions that hold worship services should be exempt from state-wide bans on mass gatherings. While many churches have resorted to drive-in services and live-streamed services for its congregants, others have refused to close their doors. One pastor of a 4,000-member church who stood his ground, claiming that the government’s orders violate his right to religious freedom, was arrested after holding multiple church services during which attendees were reportedly given hand sanitizer and made to keep a six-foot distance between family groups.

It’s an interesting test of the First Amendment’s freedom of assembly and religious freedom clauses versus the government’s compelling state interest in prohibiting mass gatherings in order to prevent the spread of the virus.

Generally, the government has to show a compelling state interest before it can override certain critical rights such as free speech, assembly, press, search, and seizure, etc. Most of the time, it lacks that compelling state interest, but it still manages to violate those rights, setting itself up for legal battles further down the road.

These lockdown measures—on the right of the people to peaceably assemble, to travel, to engage in commerce, etc.—unquestionably restrict fundamental constitutional rights, which might pass muster for a short period of time, but can it be sustained for longer stretches legally?

That’s the challenge before us, of course, if these days and weeks potentially stretch into months-long quarantines.

For example, the First Amendment guarantees “the right of the people peaceably to assemble.”  While the freedom to travel has been specifically recognized only as in the context of interstate or international travel, the freedom of movement is implicit liberty given that government agents may not stop and question or search persons unless they have some legal justification.

As Supreme Court Justice William Douglas once wrote:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. . . .  Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

As a rule, people are free to roam and loiter in public places and are not required to provide police with their identity or give an account of their purpose for exercising their freedom.

However, as with all constitutional rights, these freedoms, as the Courts have ruled, are not unqualified. Even content-based restrictions on speech are allowed under the First Amendment if the restriction is needed to serve a compelling government interest.

The Supreme Court long ago “distinctly recognized the authority of a state to enact quarantine laws and health laws of every description[.]” Such laws are an exercise of the state’s police power, and if there is a rational basis for believing they are needed to protect the public health, they will be deemed to serve a compelling government interest.

The point was made over 100 years ago in circumstances similar to today’s COVID-19 outbreak when a smallpox outbreak occurred in Cambridge, Mass., invoking a state law allowing localities to make vaccinations mandatory and enforceable by criminal penalties.  In upholding the law and local order against a claim that it violated the constitutional liberty to control one’s own body and health, the Supreme Court declared:

The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.

The Court went on to write that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Most states have enacted laws that recognize the need for prompt action in times of emergency, including epidemics, and have delegated the authority to and executive officer to take action to address that emergency.  For example, Tennessee law provides that the governor is given the power to issue orders that have the force and effect of law to address emergencies, which include disease outbreaks and epidemics. That state’s law similarly grants mayors or other local chief executive officers the power to issue orders and directives deemed necessary, including closing public facilities, in order to address civil emergencies.

Courts have ruled that they will defer to the decisions of executive authority on the decision as to whether an emergency exists and whether the means employed to address the emergency are reasonable and legal, although there could be situations where a court would declare that the executive decision is arbitrary and unreasonable.

When governments act under their police power to control plagues and epidemics, those laws are valid even though they may restrict individuals in the exercise of constitutional rights.  As one legal scholar recently noted, the balance between individual rights and protection of the public “assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation.”

At the moment, the government believes it has a compelling interest—albeit a temporary one—in restricting gatherings, assemblies, and movement in public in order to minimize the spread of this virus.

The key point is this: while we may tolerate these restrictions on our liberties in the short term, we should never fail to be on guard lest these one-time constraints become a slippery slope to a total lockdown mindset.

What we must guard against, more than ever before, is the tendency to become so accustomed to our prison walls—these lockdowns, authoritarian dictates, and police state tactics justified as necessary for national security—that we allow the government to keep having its way in all things, without any civic resistance or objections being raised.

Martin Niemoller learned that particular lesson the hard way.

A German military officer turned theologian, Niemoller was an early supporter of Hitler’s rise to power, having believed his promises to protect the church and not allow pogroms against the Jewish people. It didn’t take long for Hitler to break those promises, but by the time the German people realized they had been double-crossed, it was too late.

As Niemoller warned: “First they came for the Socialists, and I did not speak out—Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out—Because I was not a Jew. Then they came for me—and there was no one left to speak for me.”

The lesson for those of us housebound and watching from a distance as the Fourth Reich emerges from the shadows is this: all freedoms hang together.

Niemoller’s warning for our modern age would probably go something like this: First, the government went after the right to be free from unreasonable searches and seizures, and I did not object, because I had nothing to hide. Then they went after the right to not be spied upon, and I did not object, because I had done nothing wrong. Then they went after the right to criticize the government, and I still did not object, because I had nothing to criticize them for. Then they went after the right to speak—worship—and assemble freely, and I did not object, because I had nothing to say, no one to worship, and nowhere to congregate. By the time the government came to lock me up, there was no one left to set me free.

In other words, don’t be naïve: the government will use this crisis to expand its powers far beyond the reach of the Constitution. The Justice Department has already signaled its desire to suspend parts of the Constitution indefinitely.

That’s how it starts.

Travel too far down that slippery slope, and there will be no turning back.

Curiously enough, although Americans have not been inclined to agree on anything much lately, given the extreme polarization of the country politically, a recent survey indicates that “people of both parties seem rather okay with undermining core civil liberties in order to fight the pandemic.”

This way lies madness.

As I make clear in my book Battlefield America: The War on the American People, if you wait to speak out—stand up—and resist until the government’s lockdowns impact your freedoms personally, it could be too late.

What would be far worse, however, is handing over your freedoms voluntarily—without even a semblance of protest—to a government that cares little to nothing about your freedoms or your lives.

 

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Author: John W. Whitehead
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Date: April 6th, 2020
Website: https://www.rutherford.org

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17 Comments...

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  1. Andrea.Iravani. says:

    Where did Whitehead get his law degree? KMart? The military has no power at all. If Whitehead read the constitution, he would know that. Just because people violated the constitution in the past does not legitamize those violations. I have read so many articles by that buffoon legitamizing the violation of the constitutional rights of Americans. He is obviously a fascist in disguise. What a God damned fraud! Then the men wonder why the women are unhappy with men running the country! With constitutionally illiterate, psychopathic, fascist, frauds like Whitehead around, we certainly can’t thank the men for much of anything! Sometimes the truth hurts!

    • Keepingitreal says:

      If he is such a buffoon, why do you read so much if his work? Who is the real buffoon?

      • Darth Skippy says:

        There is supposed to be a balance of powers, between the different branches of govt.

        But, which branch of govt is the military?

        Depending on who you ask:
        A. Congress is the legislative branch of the Federal Government which takes actions of the military.
        B. Department of Defense, which is part of the Executive branch, ie. commander in chief
        C. There is a tradition against standing armies, in order to prevent a reiteration of the redcoats, ie. posse commitatus

        But, which branch of govt is the military?

        Same as the Federal Reserve?

      • Andrea.Iravani. says:

        I read it because it is widely read. It is poisonous and toxic garbage that is polluting society and that must be pointed out to people. It is an extreme dis-service that these fascist ideologies are typical in this uncivilized heap of well-dressed terrorists, predators, psychopaths, and gangsters.

        • Genius says:

          “With constitutionally illiterate, psychopathic, fascist, frauds like Whitehead around, we certainly can’t thank the men for much of anything! ”

          Ok then thank Pelosi, Boxer, AOC, and a plethora of others who are ALL communist anti amurikan. Both fed and local, they are the worst.

          • Andrea.Iravani. says:

            I won’t be thanking those frauds either, but the men that have been complaining that this is the women’s fault have epically failed at providing any leadership, a clear path, integrity, sensibility, and reason. So, just saying, respect must be earned, regardless of sex, race, income, status, and title. In other words, having a degree and an audience does not qualify one as being an expert, or a leader. After all, it has been the supposed experts that got us into this mess, these were their ideas.

    • Genius says:

      “With constitutionally illiterate, psychopathic, fascist, frauds like Whitehead around, we certainly can’t thank the men for much of anything! “

  2. Yu-No-Hu says:

    Good Evening Y’all,

    A matter I have been devoting quite a bit of thought to follows herein. The site Nextstrain.org is an aggregator for current data on the ongoing (natural) mutation of the COVID-19 virus. Rest assured, much of what is there is simply unintelligible to most (myself included) but there are some take-aways from what is posted there which are good to know.
    Currently, Nextstrain is listing (non-comprehensively…) some 2400 identified distinct genetic variants of the virus. In reality, there are currently some 3600-4000 strains ‘in the wild’ as I type this, hence the disclaimer listed above relative to Nextstrain’s accounting.
    Now, in the greater scheme of things, ‘Families’ of the virus – strains with a high degree of similarities to each other are designated as ‘Clades’…and therein lies our primary interest. The current high mortality rates being seen in New York and New Orleans (especially the latter as the apparent rate of change in mortality rate there is FAR higher than that seen even in New York) may – or may not – indicate the emergence of identifiable strains sufficiently different from the other existent variants to be classified as distinct Clades from the central mass of the ongoing COVID-19 Pandemic.
    However, it is neither the current clades of the virus – in any recognized variant – that concerns me so much as what we might – might – well be seeing in a few months. Global leadership is – seemingly – determined to restart the planetary economic engine, which though vitally important to the economic health of the planet is – IMHO – extremely short-sighted. The current plethora of viral Clades existent now, each becoming more distinct so long as they remain actively infecting additional individuals, continue to mutate via the ‘Random Walk’ process and in the normal course of events may – or may NOT – diminish in ‘potency’ (transmissibility and/or mortality rate) so long as they are continuing to infect individuals broadly.
    Now, my concern. In my opinion, it is LIKELY that the current number of infected individuals has had already passed a functionally ‘undefinable’ point of ‘Critical Mass’…and that will likely have very long-lasting consequences for all of Humankind. Consider what happens if the many clades of the virus differentiating themselves in various and sundry points on the planet succeed in ‘doubling back’ into other host populations which they – as yet – have not been exposed to. Many epidiologist/virologist (though not all…) have already expressed a concern that the nature of COVID-19 is such that infection followed by subsequent recovery might very well NOT confer an immunity to subsequent re-infection by the same variant of the virus. Consider that IF the current range of clades are sufficiently genetically distinct then that alone may well form the basis to support the speculation even if an infection via a local strain of the virus DOES confer some undefined level of immunity to THAT strain.
    The takeaway from the preceding is that we may well be seeing – for some indetetminate time to come – a re-appearance of the virus either sporadically or more regularly. Effectively, this may – MAY! – allow for a semi-continuous ‘wave’ of re-infection to occur repeatedly for an indefinite amount of time. IF the current clades retain a relatively high level of transmissibilty – which is by no means guaranteed – then the thesis laid out here becomes an operant possibility.
    That is something that can ONLY be reduced significantly – as a possibility – if Global leadership is willing to ‘bite the bullet’s and severely restrict intercontinental air travel for possibly a very long time into the foreseeable future. None KNOWS where this is going currently – we are simply too early in the initial phases of the initial propagation of the first wave of the current Pandemic to be able to assess what it MIGHT become – and that is of small concern to me presently in any event. What DOES concern me – profoundly – is that we (individually or on progressively higher hierarchies- might prematurely relax our guard in the headlong rush to reinitialize the State, National and Global engines of Commerce…which may have truly titanic consequences for everyone, everywhere. COVID-19 has already shown itself to be unusually capable, ‘hardy’ in terms of retaining it’s transmissibility so – IMHO – the contingencies I’ve addressed this far must be taken seriously…by us ALL.

    Be Well, be SAFE and above all, be Blessed…all of you.

    JOG

    • Darth Skippy says:

      Not an endorsement. Offered for general consideration, only:
      https://www.change.org/p/world-health-organization-bring-back-draco-antiviral-against-coronavirus-disease-covid-19

      In some interpretations, a live vaccine changes the human (or lab animal) genome, making it invulnerable to common diseases. This one is called “DRACO”.

      Curiously, hidden amongst so much lingo on innate immune respose, is a discussion on cell death. It has been speculated that some live vaccine may change the natural life expectancy of people willing to change their fundamental biology (specie).

      • Yu-No-Hu says:

        Howdy DS,
        I’ll take a gander at the link you provided presently. Thank you for the info.
        I’m relatively sure that most people have – at some point or another – seen the movie, “Contagion” starring Dustin Hoffman, Cuba Gooding and Morgan Freeman, yes?
        Did you perchance wonder why they were SO interested in finding that monkey they kept chasing around? Ere preceding here, a disclaimer: I am NOT a Viroligist or an Epidimiologist either. I am a Mathematical Physicist with a Masters in Nuclear Engineering, which doesn’t – per se – qualify me to weigh in authoritatively on ANYTHING related to the current CIVID Pandemic…however, I do have extensive familiarity with the US Army’s database of wargame simulations relating to Biowarfare.
        But enough of that.

        The reason that Mr Hoffman and cohorts were so desperately seeking the monkey in the movie (portrayed by Pierre Le Monke…sorry, I’m VERY tired currently and my humor gets the better of my rational centers all too frequently under that circumstance…) is that the monkey was carrying the ORIGINAL strain of the virus that subsequently infected so many as portrayed. Why is that important? Simple, any vaccine must needs be developed from the original parent stock of the virus ELSE any other vaccine developed will not generally be effective against anything other that viruses within it’s specific Clade.
        Unfortunately, the Chinese beauracracy ordered the summary incineration of the first few hundred thousand samples obtained in and around Wuhan to ‘Save Face’ in front of their superiors.
        Would you like to guess – given the foregoing explanation- where that leaves US currently? Here’s a hint, we’re effectively ‘copulating’ with ourselves in pursuing a vaccine – for a very long time henceforth.
        Again, thanks for the info…I’ll take a look and get back to you. My Lilly- White derriere is currently a bit trashed after Roto-Tilling about a half-acre and I’m gonna SIT FOR A BIT!!!
        Happy trails Y’all…be Well, be SAFE!!! and be Blessed.

        JOG

      • Yu-No-Hu says:

        Hat Tip DS,
        I was NOT aware of that specific research line…fascinating!
        For anyone wondering what DS is referring to in his reply, go over to Wiki and look up “DRACO” alone, verbatim. The background on this research is entirely unique in it’s approach to interacting viral reproduction, initiating a concatenated series of effects that lead rather directly to cellular Apoptosis BEFORE viral replication can exponential within a cellular host.
        As I said, fascinating.
        However, that line of research was terminated in/around 2015 due to lack of funding. Per the link provided by DS above, it APPEARS that there might be a renewal of that study…which I very much hope does occur. The Academic community is quickly arriving at a grim conclusion; exposure and subsequent survival to any specific class of the virus appears – appears! – to confer on subsequent immunity to other clades.
        To say the least, this is REALLY BAD news, since it might be the case that hereafter we see wave after wave of new cases originating from various different classes moving through host populations INDEFINITELY.

        A big Howdy to CraneRigger, thanks for the compliment Sir. It is solely my hope that we can get the RIGHT information out to everyone who ‘has ears to hear and eyes to see.’ such that they can make the hard – but CORRECT – decisions in time to come.
        We’ll meet Sir!

        JOG

  3. Mr_Yesterday says:

    I am a hermit and rarely ever go out.

    Power is never simply taken, it must be given. It must be earned.

    If you’re not in agreement with government ‘orders’, simply don’t follow them. Simply opt out on principal.

    It’s not rocket science. Who controls your mind?

    • Pyra says:

      That only works until the authoritarians decide to use FORCE to gain your compliance.
      If you are not prepared to Glock em in their orc faces, then you’ll get away with disobedience till they decide you won’t.

  4. Say Bye Bye Freedom or Stand says:

    Power hungry control freak Politicians destroying the economy. But your personal economic DEVASTATION is for “your safety”.
    You are ALL suckers, chumps, marks, sheep, afraid to live life because you “might” die from a chicom bioweapon.

    Are you too afraid to stand up for American values.
    Then “stay at home” as your Media masters direct you Lemming sheep. You are being herded off an Economic Cliff. And you don’t even understand that. In 6 months you will. Remember you were told the consequences. US economic devastation not because of the China CCP bioweapon. But because of the FEAR reaction, Media Lies, and US Politician power grab.

    This is Communist China CCP economic warfare with a biological weapon against the USA. The US Politician power grab is disgusting. You already knew the lying Media were antiAmerican communist. And you follow them? You believe them. Are you going to let them get away with this?

    – – Keep Borders Closed.
    – – End Shutdown. Non Compliance. Do Not Obey.
    – – Go back to work. Make money. Feed your family. NEVER take any “help” from any government. When the government comes to “help you” RUN !
    Ask native Americans.
    Ask those of us that survived Katrina. (With contractor thugs and crooked cops trying to confiscate firearms, personal property, and trying to herd people into “safe place” to be controlled and KILLED. Babies died. No one cared.)

    We left the disaster area. Left most things behind. So much for those “preps”. We kept our firearms. Yes they tried to rob us, politicians.police, and thugs. Leaving is why we lived. Thugs-Police-Politicians, don’t like armed victims. That is why you must NEVER give up the 2nd.

    “Live Free or Die” as said in Vermont.

  5. Darth Skippy says:

    Yesterday, I saw someone exploring an old building. He asked, what is ‘our daily bread’?

    Will he know not to take a mark, in order to ‘return to normalcy’?

    “a measure (choinix) of wheat for a penny (dēnarion)”

    choinix — as much as would support a man of moderate appetite for a day

    dēnarion — then, the ordinary pay for a day’s wages.

    I hear, downtown, right now, you’re allowed to take exactly one loaf.

    If it was independent, self-sufficient, daily bread, what does a socialist have to offer, in exchange for absolute power?

    Looking outside, all the grasses and animals still grow, in the normal way, while they cull the food supply and say that garden seeds are non-essential (illegal to sell) at the big box store, downtown. Cover crops still emerge from all the dirt, surrounding this blockade.

    Independent reason has clearly failed us, after some generations of public (mis)education.

    The Art of Fishing With Birds
    h ttps://www.youtube.com/watch?v=cS9wzAjbJ24
    You are the bird. Who feeds who?

  6. Frank Thoughts says:

    It took a corrupt, former terrorist African at the WHO to wipe out $3.4 trillion in wealth and counting because of a global pandemic started by a Chinese guy who liked eating bat soup (the official story).

    Just think about that. Let it seep in. Then learn to hate and fight back because you are going to be living on the street pretty soon and scraping around for the last morsels of food because of what these people just did to your wealth.

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