Government Ordered Quarantine Violates Fifth Amendment, Says Judge Napolitano
By Carole Hornsby Haynes, Ph.D. March 24, 2020
Mass hysteria has engulfed the United States over the Wuhan virus with millions of citizens ordered to remain isolated in their homes even if they are not sick. California Governor Gavin Newsom said his state is prepared for martial law if needed.
Does government have the authority to quarantine persons without proof of contagion?
According to Judge Andrew Napolitano, the short answer is no. Under the Fifth Amendment both federal and state governments must follow due process if they intend to impair the life, liberty, or property of any person.
The question at hand is what can the federal and state governments do in a public health crisis. Napolitano states,
“There are no emergency provision or triggers in the Constitution; yet, Congress gave itself the power to regulate public health and safety under various pretexts.”
The pretexts exist to allow nanny state members of Congress to regulate and control citizens in direct violation of the Tenth Amendment which leaves health and safety to the states.
In legislating from the bench, the Supreme Court has ruled that both federal and state governments can confine someone who is a threat to the public, even if no crime is committed. Napolitano says,
“It is contrary to the plain meaning of the Constitution for Congress to give itself powers that were not delegated to it by the Constitution, but the courts have permitted this.”
Even so, the courts have recognized that a person’s natural rights must be protected by the Constitution.
As for whether the state or federal governments can confine persons against their will for the purpose of protecting public health, Napolitano says the short answer is yes – thanks to the courts – but due process is required under the Fifth Amendment which “means a trial for every person confined.”
“Thus, a government-ordered quarantine of all persons in a city block or a postal code or a telephone area code would be an egregious violation of due process, both substantive and procedural. Substantively, no government in America has the lawful power to curtail natural rights by decree.
Procedurally, notwithstanding the fear of disease contagion, the states and feds may only quarantine those who are actively contagious and will infect others imminently. And it must present evidence of both at a trial at which it bears the burden of proof….
That means a trial before any quarantine, no matter the public danger, and a fair trial, not one animated by mass hysteria or government-generated fear.”
Authoritarian politicians are using the coronavirus as an opportunity to get the public accustomed to being ordered around and heeding centralized government sources without questioning. They are using this health crisis to expand greatly both state and federal governments.
The growth of the American government in the 20th century has been largely through crises and response. In the economic classic Crisis and Leviathan, libertarian scholar Robert Higgs demonstrates how government uses a crisis to expand power, both during the emergency and forever afterward. (Note: “Leviathan” refers to Thomas Hobbes’ 1651 political science classic and originally comes from Jewish mythology about a sea monster.)
The emergency permanently “ratchets” up the power and cost of government. The solutions of government programs and policies are sold to the public as temporary measures but then become permanent in some form. Many New Deal agencies during the Great Depression were World War agencies that remained dormant during the 1920s. After the Great Depression, two world wars, and the Cold War, the U.S. government now has gargantuan powers and budget.
With the response to the Coronavirus comes the leviathan via the ratchet effect. We can be sure that government control of movement and gatherings of people will become more regulated and restricted. Even though it is unconstitutional, government has already established that it will use legislation, unilateral executive action, or judicial decree to prevent spread of disease and keep people healthy.
“Government for the people” now means abridging our freedoms through quarantines, movement controls, mandatory vaccinations, and whatever else is deemed necessary for public health.
What happens if we don’t comply with this unconstitutional order?
Governor Abbott has expressed his dismay that many cars are still on the Texas highways in defiance of his unconstitutional edict. The Dallas Morning News reports that numerous businesses – including restaurants, bars, and gyms -- are refusing to close.
Dallas City Hall is struggling over how to “make people follow the rules” and whether the city can legally use the courts or if it is legal to have Dallas police officers enforce the county quarantine. If government wants to quarantine people who are not sick, then each of those persons must be given a fair trial.
If citizens are cowed into submission by these totalitarians, look for full blown “medical” martial law in the future as a government response to another public health crisis. It’s critical that we stop the ratchet effect by refusing to obey this government forced quarantine.
Call to Action:
1. Call your elected officials and let them know they have violated your Fifth Amendment rights by ordering you to remain in your house without evidence of contagion. Further, government cannot use the communist tactic of requiring all citizens to be subjected to testing to determine if they are contagious.
2. Let your elected officials know we will remember their actions when we cast our votes at the polls and that we will not allow them expand the power and cost of government at our expense.
3. Talk this up on social media and email your friends and contacts.