Over a year ago, the COVID panic shook the world. We were told it would only be “15 days to flatten the curve” as businesses were locked down, “nonessential” employees were forced out of work (I’ve written about the myth of the nonessential employee here), masks were mandated, and individuals were not allowed to gather in groups or attend religious services.
In typical fashion, a government-mandated “temporary” usurpation of liberty turned into an indefinite infringement, as shown by the fact that we’re still under COVID orders four hundred days later. Regardless of the length of time, the question remains that few have asked: What authority does the government have to lock us down and force us out of work?
This brings us to the issue of due process, which at minimum requires the right to appear in front of a judge and represent oneself to a jury of his peers before being stripped of essential liberty. Did the thousands of businesses closed and millions put out of work get this opportunity? Of course not. They were unilaterally stripped of their ability to put food on the table and pay their bills without any opportunity to object.
Sick until Proven Healthy
The concept of “quarantine” has been well established in American jurisprudence for well over one hundred years. When an individual is sick, and at risk of infecting others, the individual could be put in quarantine or isolation by a court until they are no longer infectious. Quarantine still requires basic due process. The individual subject to potential quarantine is still entitled to a court proceeding and evidence must be established of the individual’s risk to public health.
The past year has placed the entirety of the United States in de facto quarantine under the perceived threat of spreading COVID. While quarantine is for the sick, most of those subject to the long list of restrictions have been healthy. Not a single person affected has had the opportunity to get in court and object. These blanket measures have denied every single citizen the constitutional right to due process they supposedly possess. Deemed sick until proven healthy, unfortunately, no one has had the opportunity to even prove their health. Governments have argued that “stay-at-home” orders are not quarantine as a way to end-run the issue. If that is the case, where do they get their authority? Neither the US Constitution nor that of any of the states provides an exception to due process in the case of a pandemic. Many states have relied on ambiguous statutes meant for use in a foreign invasion to justify these actions, but anyone who looks at the scenario objectively can see that there are no “pandemic exceptions” to due process of law. These powers were made up out of thin air, with absolutely no authority to grant itself this power.
If the lockdowns weren’t enough, all but seven states issued moratoriums on evictions or foreclosures, allowing tenants to squat on landlord property rent-free until further notice. It gets worse: landlords are still stuck with fulfilling the basic legal duties of landlord-tenant law, such as the warranty of habitability, even though they are receiving nothing in return. A landlord is not receiving rent for someone staying on his property, and is not allowed to evict a squatter from the land, stuck without the ability to use his property.
The landlord’s property is essentially taken as a result of his deprivation, clearly a government “taking.”
In a saner world, this would be regarded as a violation of the property rights ostensibly protected by the Fifth Amendment of the Bill of Rights. The basic idea there is that a property owner must be provided “just compensation” when private property is taken by a government agency. This can be violated in at least two ways. First, the landlord has his property taken and given to someone else without ANY compensation as a result of the moratoriums, flying in the face of the idea of “just compensation.” Second, the landlord is denied the right to a hearing to contest the taking, even though this is typically permitted in an eminent domain case. Certainly, the lack of ability to object to the property taken without a hearing is a violation of due process of law. Where does the authority rest to take property with no compensation and deny a hearing on the matter? As previously stated, there is no “pandemic exception”—another example of government granting itself authority out of thin air.
Compounding these issues are violations of the right to a speedy trial (as mentioned in the Sixth Amendment of the Bill of Rights.) Courts around the country closed during the COVID lockdowns, and since opening up have been left with an incredibly lengthy backlog. Many are still only doing proceedings via video after reopening. Defendants wait months and months in jail, as Ryan McMaken has written about here. The threat to basic due process rights should be obvious.
With states starting to end their eviction moratoriums, many landlords are still not receiving rent for those on their property. While they should be allowed to evict a delinquent tenant, the court backlog makes this impractical. With court proceedings delayed months due to the shutdowns, landlords are stuck with their property occupied by squatters indefinitely. The legal system prohibits a landlord from exercising the right of eviction on his own, requiring the landlord to do so via the courts. The delay on the landlord’s ability to use his own property until an indefinite court date, on which the court may still rule against him or grant the tenant a stay for more time, is another way landlords are deprived of due process under the COVID orders.
The essential liberties Americans are told are protected by the Bill of Rights, such as freedom of assembly and religion, the ability to redress government, the right to a speedy trial, and due process of law, whatever they were prior to, have been routinely ignored in response to COVID.
The past year has made it ever more clear that due process and property rights—no matter how explicitly protected in both the federal and in state constitutions—are mere inconveniences to governments imposing their will on residents within their jurisdictions. These arms of the state will always use lawyers and judges to twist the law to achieve the ends they desire, granting the state whatever power is necessary to accomplish a desired goal. This abomination to natural rights shreds apart the fantasy that Americans live under a “limited government” system. Government power is instead limited only by the ambitions of those that occupy it. I’m sure Lysander Spooner would be saying, “I told you so.”
This article was originally featured at the Ludwig von Mises Institute and is republished with permission.