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COVID Tyranny Should Be Overpowered Using Laws

Laws that penalize tyranny will secure freedom.

James Anthony
January 15, 2021

Individuals freely taking action provide the best-informed, best-tailored, fastest response to changing conditions, including crises [1]. But in the case of COVID, governments, businesses, schools, and nonprofits are preventing this by imposing harmful [2], tyrannical rules.

One way to resist tyranny is by conscientious objection.

This is what’s done by 2nd Amendment sanctuary counties, which now number 1/3 of all counties [3]. Such counties’ government people independently evaluate the constitutionality of city-, state-, and national-government rules and don’t enforce any rules that the county-government people consider unconstitutional.

Such passive resistance wouldn’t be enough to protect against COVID rules. If a county government passively didn’t enforce the state government’s rules but the state government actively still did impose its rules, then local businesses, schools, and nonprofits would still protect themselves from this remaining force by following the state government’s rules.

Many businesses, schools, and nonprofits also impose tyrannical rules themselves and face no penalties.

A second way to resist tyranny is using laws.

In this case, the balance of the forces acting on businesses, schools, and nonprofits would be reversed, so these organizations would be incentivized to allow freedom.

The key would be to use laws to forcefully penalize each specific tyranny:

  • When any rule on face coverings or body-temperature measurements is imposed, typically by a business, school, or nonprofit.
  • When any rule on facility closure, capacity utilization, separation between people, frequent cleaning, or evidence of immunity is imposed, typically by a government, school, industry organization, franchiser, or airline.
  • When any test used on COVID is banned or restricted [4], or when hydroxychloroquine for COVID is banned or restricted, typically by a government, industry organization, or health system [5].
  • When any rule or guideline developed unlawfully by an executive, administrator, or judge is imposed, typically by a business, school, or nonprofit.

Law is the best-proven tool for overpowering tyranny. When freedom has advanced in giant steps, again and again the central organizing principle has been law—Magna Carta documenting liberties, Edward Coke reviving liberties, the Glorious Revolution better-limiting monarchs, the Constitution creating processes for limiting all component parts of governments.

Laws overpowering tyranny start with the Constitution, state constitutions, and county and city charters. More-specific laws would flow directly from this foundation.

When such laws are challenged, principled legal groups stand ready to uphold freedom in courts at every level.

To make the supporting constitutional framework clear, and to set out a first step that governments and nongovernment organizations alike can take towards using law to counter COVID tyranny, a draft declaration is given below.

Such a declaration could be signed by people in any level of any government. People in any level of any government can and should use their constitutional powers to limit other government people; this is the way that our rights are made the most secure [6].

Such declarations could also be signed by people in nongovernment organizations. Nongovernment organizations have the legal power to not follow any government’s unconstitutional rules, and also have the power to not impose their own unconstitutional rules.

It wouldn’t be necessary from the start to overpower the tyranny in Progressive-controlled cities, counties, and states. It would only be necessary to create at least some laboratories of freedom that would produce results that could be seen elsewhere. A flame can spread very quickly once it’s started.

Each person who signed such a declaration would then increase freedom to the full extent he could.

Collectively, these actions would create actively-maintained Constitution-supporting regions in which individuals could more-fully use diagnostic tests, use preventive medicines and supplements, and use therapeutic medicines and supplements.

Every individual who is not at elevated risk of death could then much-more-safely acquire immunity.

When they did, everyone would benefit from the best-possible protection [7] as quickly as possible—throughout Constitution-supporting regions, at least.

In the draft declaration, rules are listed that all work together. Structural provisions are summarized that are key to implementing these rules.

Violations are listed (matching the list given earlier), not exhaustively but as representative examples. Experience with these examples would prepare people well to counter other current violations and to counter future violations.

Finally, remedial actions are outlined, indicating which officers are responsible, what actions are needed to actively use law to overpower tyrannies, and what inaction is needed to also locally disempower unconstitutional statutes and guidance.

The key ingredient that has been missing in the COVID era till now is active resistance using laws.

Rules

  1. No person shall be deprived of life, liberty, or property without due process of law [8].
    (USA Constitution, amend. 5.)
  2. Allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection [9], while better protecting those who are at highest risk [7].
    (Martin Kulldorff et al, “Great Barrington Declaration”;
    James Anthony, “Living through Coronavirus, Living with”)

Structures

  1. The Constitution, along with pursuant laws and authorized treaties, is the supreme law [10]. (USA Constitution, art. VI, cl. 2.)
  2. The national government and the state, county, and city governments each are a republican form of government [11]. (USA Constitution, art. IV, sec. 4.)
  3. Republican government satisfies at least three requirements [12]: ultimate control by the citizenry, no monarchy, and adherence to law [13]. (Robert G. Natelson, “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause”; Thomas A. Smith, “The Rule of Law and the States: A New Interpretation of the Guarantee Clause.”)
  4. Ensuring ultimate control by the citizenry, no monarchy, and adherence to law requires delegating limited powers [14]; separating the legislative [15], executive [16], and judicial [17] powers; and making legislative powers nondelegable [18]. (USA Constitution, amend. 10, USA Constitution, art. I, sec. 1; USA Constitution, art. II, sec. 1, cl. 1; USA Constitution, art. III, sec. 1; David Schoenbrod, “The Delegation Doctrine: Could the Court Give It Substance?”)
  5. Uncontrolled rule, monarchical rule, and nonadherence to law, resulting in exercise of absolute power, was done by pre-modern monarchs, and is done by modern Progressive administrators [19]. (Philip Hamburger, “The History and Danger of Administrative Law.”)
  6. Nongovernment organizations must not violate rights to life, liberty, or one’s own property. (It’s common for all readily-available sellers to impose the same rules, or for a given product to be different enough from competing products to be decisively preferred by customers. When sellers all impose practically the same rule or a seller offers a well-enough-differentiated product, the customers who seek a given functionality have no alternative choices [20]. No person shall be deprived of life, liberty, or property without due process of law [8]. Andrea Boyack, “Common Interest Community Covenants and the Freedom of Contract Myth”; USA Constitution, amend. 5.)
  7. Nongovernment organizations that extend a government’s rules or guidance must not extend the reach of absolute power. (Nongovernment organizations imposing government rules are extensions of governments [21] and therefore are subject to the laws that limit governments. Michael Rectenwald, “The Google Election.”)
  8. Government officers—national and state; legislative, executive, and judicial—are required to support [22] or protect [23] the Constitution, which requires that each officer independently evaluate each action and only take actions that he himself believes are constitutional [24]. (USA Constitution, art. VI, cl. 3; USA Constitution, art. II, sec. 1, cl. 8; Gary Lawson, “Everything I Need to Know about Presidents I learned from Dr. Suess.”)

Violation Examples

  1. Rules on face coverings and body-temperature measurements deprive persons of liberty without due process of law.
  2. Rules on facility closure, capacity utilization, separation between groups or between persons, frequent cleaning, and evidence of immunity deprive persons of liberty and property without due process of law.
  3. Rules on test sale and use [4], and hydroxychloroquine [5] rules [25], deprive persons of life, liberty, and property without due process of law. (James Anthony, “Government Agencies Are Holding Back ‘Fast Tests’ that Could Be Saving Lives”; James Anthony, “Hydroxychloroquine, Used Early, Is the Most-Effective COVID-19 Treatment, and Is Likely Much Better Given Supplemental Zinc”; Alexander Tabarrok, “Assessing the FDA via the Anomaly of Off-Label Drug Prescribing.”)
  4. Rulemaking or guidance by executives, administrators, or judges is the exercise of absolute power—a tyrannical form of government, which is unconstitutional.

Remedies

  1. Legislative and executive officers declare that they will constitutionally enact laws consisting of rules and sanctions [6] that are sufficient to deter violations that deprive persons of life, liberty, or property, or that are developed using absolute power. (James Anthony, rConstitution Papers: Offsetting Powers Secure Our Rights.)
  2. Executive officers declare that they will constitutionally enforce these laws.
  3. Judicial officers declare that they will constitutionally opine on cases arising under these laws.
  4. Each government officer and each nongovernment officer declares that he will independently evaluate constitutionality and he will use the full power of his office to help prevent any person from being deprived of life, liberty, or property through infection rules or guidance, and to help prevent the use of infection rules or guidance that are developed using absolute power.

References

  1. Forgac, Tomas. “We’re Learning Why Governments Can’t Be Trusted with Health Crises.” Mises Wire, 23 Mar. 2020, mises.org/wire/were-learning-why-governments-cant-be-trusted-health-crises. Accessed 15 Jan. 2021.
  2. “Cost of Lockdowns: A Preliminary Report.” AIER Daily Economy, 18 Nov. 2020, www.aier.org/article/cost-of-us-lockdowns-a-preliminary-report/. Accessed 15 Jan. 2021.
  3. Davis, Noah. “One-Third of U.S. Counties Are Now Second Amendment Sanctuaries.” Sanctuary Counties, 23 Sep. 2020, sanctuarycounties.com/2020/09/23/one-third-of-u-s-counties-are-now-second-amendment-sanctuaries/. Accessed 15 Jan. 2021.
  4. Anthony, James. “Government Agencies Are Holding Back ‘Fast Tests’ that Could Be Saving Lives.” FEE.org, 19 Sep. 2020, fee.org/articles/government-agencies-are-holding-back-fast-tests-that-could-be-saving-lives/. Accessed 15 Jan. 2021.
  5. Anthony, James. “Hydroxychloroquine, Used Early, Is the Most-Effective COVID-19 Treatment, and Is Likely Much Better Given Supplemental Zinc.” rConstitution.us, 30 July 2020, rconstitution.us/hydroxychloroquine-used-early-is-the-most-effective-covid-19-treatment-and-is-likely-much-better-given-supplemental-zinc/. Accessed 15 Jan. 2021.
  6. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020.
  7. Anthony, James. “Living through Coronavirus, Living with Coronavirus.” rConstitution.us, 11 Aug. 2020, rconstitution.us/living-through-coronavirus-living-with-coronavirus/. Accessed 15 Jan. 2021.
  8. USA Constitution, amend. 5.
  9. Kulldorff, Martin, et al. “Great Barrington Declaration.” GBDeclaration.org, 4 Oct. 2020, gbdeclaration.org/. Accessed 15 Jan. 2021.
  10. USA Constitution, art. VI, cl. 2.
  11. USA Constitution, art. IV, sec. 4.
  12. Natelson, Robert G. “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause.” Texas Law Review, vol. 80, 2002, pp. 807-57.
  13. Smith, Thomas A. “The Rule of Law and the States: A New Interpretation of the Guarantee Clause.” The Yale Law Journal, vol. 93, 1984, pp. 561-80.
  14. USA Constitution, amend. 10.
  15. USA Constitution, art. I, sec. 1.
  16. USA Constitution, art. II, sec. 1, cl. 1.
  17. USA Constitution, art. III, sec. 1.
  18. Schoenbrod, David. “The Delegation Doctrine: Could the Court Give It Substance?” Michigan Law Review, vol. 83, no. 5, Apr. 1985, pp. 1223-90.
  19. Hamburger, Philip. “The History and Danger of Administrative Law.” Imprimis, vol. 43, no. 9, Sep. 2014.
  20. Boyack, Andrea, “Common Interest Community Covenants and the Freedom of Contract Myth.” Journal of Law and Public Policy, vol. 22, no. 2, pp. 767-844.
  21. Rectenwald, Michael. “The Google Election.” Mises Wire, 13 Nov. 2020, mises.org/wire/google-election. Accessed 15 Jan. 2021.
  22. USA Constitution, art. VI, cl. 3.
  23. USA Constitution, art. II, sec. 1, cl. 8.
  24. Lawson, Gary. “Everything I Need to Know About Presidents I Learned from Dr. Seuss.” Harvard Journal of Law & Public Policy, vol. 24, no. 2, Spring 2001, pp. 381-92.
  25. Tabarrok, Alexander T. “Assessing the FDA via the Anomaly of Off-Label Drug Prescribing.” The Independent Review, vol. 5, no. 1, Summer 2000, pp. 25-53.

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers, and has written in The Federalist, American Thinker, and Foundation for Economic Education. He’s a chemical engineer with a master’s in mechanical engineering and a strong background in process design and control. 

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