There are situations that defy our ability to maintain the constitutional order we treasure.  A nuclear attack.  Terrorists who use our freedoms as cover for their war against us.  A pandemic may be such a circumstance.  Our executive branch -- federal and state -- must be empowered to act decisively in an emergency.  Throughout the Cold War it was assumed that the president had the power to order a cataclysmic nuclear strike against our enemies without consulting Congress or a court.  The launch window might be only a few minutes; please God, let us be strong enough that no rational power ever places us in this horrifying scenario.

But where are the limits in a crisis where potentially substantial loss of life is spread out across the population and over time?  Our Constitution was written in an age when epidemics were frequent and deadly yet it includes no clause for coping with widespread sickness. 

The coronavirus is not Ebola or smallpox – and we are told it is not some sort of bioweapon from a hostile power.  Its ability to kill (4.4% worldwide [i]; 1.3% in the US[ii]) is not as certain and gruesome as Ebola (50% die) or smallpox (30% die).  Many people with COVID-19 remain asymptomatic or had no more ill effect than a bad cold while other people die from this mysterious illness.  

Meanwhile, government at all levels is taking action that is devastating the economy and wreaking havoc on individual lives.  About 100 people die everyday in automobile accidents.  Nobody has yet demanded a nationwide speed limit of 10 miles per hour.  Yet that’s exactly what we’re doing to our society, to our economy, to our people.  The CDC says that about 34,200 people died of influenza in the 2018-19 flu season.  We didn’t bring the entire United States to a halt.  Does COVID-19 and government’s reaction establish an untenable precedent?

The effort to limit COVID-19’s toll is an admirable goal.  The means by which this is done is questionable.  All across this republic, governors are acting -- often without consulting state legislatures or courts – on the advice of unelected health bureaucrats.  Sick and elderly people in hospitals and nursing homes are denied the comfort of loved ones.  Governors have signed enabling acts to take over private property, to close workplaces, to restrict the movement of individuals (who have not even been tested for illness), even limiting how many guests one can have in a private home.  Courts in Washington state suspended jury trials, potentially violating the Fifth and Sixth Amendment.  In Ohio, the governor and the state health director postponed the state’s primary in the middle of the night, despite state law mandating that this is a legislative decision.  The Bill of Rights is one of the most severely weakened victims of the Coronavirus panic.

We may never know if this was a disease that leapt into life through the evolutionary process or if something nefarious was going on in a lab in Wuhan, or if just bad things happen sometimes.  We do know the communist Chinese government remains totalitarian, willing to let many people die so it can hold on to the image of omnipotence that enables its grip on power.  Through hideous malevolence or sheer incompetence, this is what totalitarian statists do, from Auschwitz to the Gulag, Chernobyl to Wuhan.  The Xi Jinping regime is telling its people the U.S. is to blame.  China must pay a price for its denial and dishonesty as this developed; openness and truth could have mitigated the spread of the disease.  The blood of thousands is on their hands. 

Undoubtedly America’s enemies are watching how we react, as a people and as a government, learning what shuts down the American economy.  Freedom’s enemies are noting how easy it is to use fear of a barely understood illness to take away liberty. 

We may never be able to know if the authorities acted in haste and overreached their power, or if they executed a bold strategy to save thousands of lives.  What we do know is that to exercise this degree of power, to abrogate Constitutional rights even for a worthy purpose and for a short time, there must be a reckoning.  We entrust government officials, elected, appointed, or career bureaucrat, with a responsibility to the entire society.  Perhaps law could be written stating that any public official who takes an action which violates the personal liberties of the citizens of the United States would be subject to trial for a massive civil rights violation against all the citizens.  If they are found not guilty, that’s the end of it and we accept that they did their duty.  No case would establish precedent because all situations are different. If found guilty, severe personal penalties would ensue, imprisonment or even death.  This way we ensure that the people we put in office never forget that they are guardians of liberty and know that any attempt to seize or misuse power -- no matter how worthy -- must be taken with a degree of seriousness beyond elections and political futures.  If we don’t rein this in today, these people will reign over us tomorrow.