Judging Freedom - The Terrifying Lessons of COVID-19

Episode Date: January 6, 2022

Judge Napolitano breaks down the many terrifying lessons the COVID-19 pandemic has taught us. Detailing the loss of liberty, and rising government control. See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Josh Napolitano here for Judging Freedom with one of my pop-ups. Well, it's sort of a pop-up. I've been thinking as the new year changed, as the new year came into existence, as the old year went away, what is the lesson to be learned from COVID-19? Now, I'm not a scientist or a physician. So to me, the lesson has to do with the relationship of the American people to the government. As many of you know, I publish an article, comes out at 1159 p.m. Wednesday night. So it's out first thing Thursday morning. You can get it in a variety of locations. LewRockwell.com, L-E-W Rockwell, one word,.com, WashingtonTimes.com,

and about 25 or 30 other platforms, Townhall.com. It's a syndicated column, syndicated by Creators Syndicate, one of the older syndicators in the country. And my column today is called The Terrifying Lesson of COVID-19. And in the column, I recount the history of the relationship between the American people and our government. Many of you may not know that in 1776, when Jefferson wrote the Declaration of Independence and when the American Revolutionary War was beginning, there was not a popular government in the colonies. Oh, there was a popularly elected legislature,

but the colonies had governors who were appointed by the British King. And the legislatures were pretty much subservient to the governors because the governors kept issuing edicts and using the instruments available to the executive branch to enforce those edicts. Now, the edicts weren't laws because they weren't enacted by the legislature. Does any of this sound familiar? The edicts were commands by the governor telling people how to obey and punishing them if they didn't obey. Well, what do you call a command by the government regulating personal behavior, the violation of which is punishable? That's a law. But yet, under our system of

government, and even under the system of government in 1776, only the legislature could write laws. Well, this was so unpopular that once the war was started and the king had no more influence over who the governors would be, 10 of the 13 colonies changed their constitutions in a period of 14 months, ten of them, to make it very clear that the powers were separated, that only the legislature could write the laws and only the governor could enforce them. And that's all he could do was enforce laws that the legislature had written and the judiciary would interpret the laws. The judiciary was another problem, which I didn't get into in the column and won't today, but will at some time in the future.

Fast forward to today, and we see the same thing. We see President Joseph Biden issuing edicts as if he were the Congress. Well, the new Constitution has the same breakdown of powers, separation of powers, as the colonists wrote in those 10 new constitutions in 1776 and 1777. Madison, who was the scrivener at the Constitutional Convention, was aware of it. The late Justice Antonin Scalia referred to the separation of powers as the backbone of the Constitution. Congress writes the laws. The president enforces the laws.

The judiciary interprets the laws. The branches were separated so that they would be a check on one another. If the president wrote a law, the courts would invalidate it. If Congress interpreted the law, the president and the courts would ignore it. If the courts hired an army to enforce the law, the Congress wouldn't pay their salary. You've got to stay in your lane. Can the branches trade powers or cede powers? Can Congress authorize the president to write a law? Supreme Court has said a resounding no. Can the states do this?

The Supreme Court has said a resounding no, because the states, too, must have a separation of powers. How do we know that? There's a clause in the Constitution called the Guarantee Clause, which guarantees that all states will have the separation of powers. Now we come to the modern era, and we see the separation of powers being violated, the backbone of the Constitution being violated. The president issues edicts, mayors issue edicts, not laws written by the city council. In the president's case, not laws written by Congress. Governors issue edicts. Those are the most controversial ones, not laws issued by or enacted by the state legislature. And these edicts have to do with COVID.

And they tell us what to wear on your face, how to travel, when you can go to church, when you can go to work, how to operate your business. They basically tell you how to live in utter defiance of the Constitution. I am not surprised when the government defies the Constitution. It's been happening for 230 years. It's the job of people like me and courageous lawyers and litigants to point it out to judges. I'm not surprised because, as Justice William O. Douglas famously once said, the Constitution was written to keep the government off the people's backs. No wonder they hate it. There were times when I was on the bench and government lawyers would be arguing cases before me and I would say, excuse me, is there a hole, W-H-O-L-E, is there a hole in your copy of the Constitution where the Fourth Amendment is supposed to be?

Because you're acting as if there is. The government is forever looking for ways to avoid and evade the Constitution, which was written to chain the government down. So I'm not surprised that the government violates the Constitution. What terrifies me is when the American public says yes. When the American public, which prefers a false sense of security to the reality of personal liberty, obeys these unlawful edicts, which legally are a nullity. They are nothing legally. That's what's terrifying when we behave like a nation of sheep. Does the government work for us or do we work for the government? Can liberty so arduously fought for and with such great difficulty won be so easily dissipated? The answers to these questions are

obvious, but they're so painful I don't even want to articulate them. Judge Napolitano with a pop-up on liberty lost in the time of COVID.