Covid-19 Lockdowns Violate the US Constitution

“The extensive and continued Covid-19 restrictions on human activity throughout the United States over the past year is not only contrary to an honest examination of public health data and economic impact, but it also violates our freedoms outlined in the US Constitution. This is a vital issue that has been almost entirely ignored by the media.

During a December 4, 2020 virtual event of the Bastiat Society of Washington, DC, attorneys Robert Barnes of Barnes Law LLP and Patrick Wright of the Mackinac Center for Public Policy spoke on the heavy use of government emergency decrees in responding to the Covid-19 pandemic. Mr. Barnes made the case that the ongoing emergency decrees imposed on Americans are both unprecedented in American history and a violation of our constitutional rights. Mr. Wright focused more specifically on the current court challenges to various state emergency decrees, most notably those in Michigan imposed by Democratic Governor Gretchen Whitmer. Mr. Wright’s court updates will be covered in a subsequent article.

Mr. Barnes provided the following historical references in making his case against the imposition of emergency public health lockdowns:

America’s Founders saw no need for emergency exceptions to personal liberty. In the 12 years from 1775, when American colonists began contemplating a declaration of independence from Britain with a bill of rights, until 1787 when the new Constitution of the United States was signed, the 13 British colonies turned American states suffered no less than seven epidemics. These epidemics, comprised of smallpox and influenza, had mortality rates as high as thirty percent — the highest in American history.

Despite the devastating impact of these epidemics during the early years of the new American republic when the U.S. Constitution and the Bill of Rights were being deliberated and debated, no one ever proposed or suggested that public health exceptions or any kind of emergency exceptions be included. Furthermore, during the 19^th and 20^th centuries when the United States suffered through additional deadly epidemics (including the widespread Spanish Flu pandemic of 1918-1920), no public officials ever proposed that Americans’ constitutional rights be suspended, even temporarily, for public health reasons.

The historical norm of noninterference in American constitutional rights vanished over the past year after the first Covid-19 cases and deaths were reported in the United States in March 2020. By late April 2020, 43 of 50 states had issued stay-at-home orders and the closing of schools and “nonessential” businesses. While most stay-at-home orders were lifted within a month or two, the closing or severe in-person restrictions on schools and businesses arbitrarily considered to be “nonessential” has continued in many states. These lockdown orders are not only in violation of the US Constitution, but also of state constitutions that typically allow for short-term emergency decrees by governors of between 14 days to 60 days. “