Reasserting Constitutional Limits on Government

The Third Amendment to the Constitution is perhaps the one least violated by the government. Yet if the government ever wished to violate it, by quartering soldiers in private homes, it would almost certainly be during an emergency like an insurrection. Governments have an interest in suppressing insurrections, and in many cases it may even be legitimate that they do so. In other cases, governments that have violated natural rights deserve to be overthrown. But whether they are deserving or not, if a future American government desires to place soldiers inside your home to keep an eye on you, it will probably be because of an insurrection. An insurrection is an emergency, but it does not justify setting aside the Third Amendment -- it is precisely for such an emergency situation that the Third was written.

The present emergency has led to a lot of different levels of government violating the Constitution (and state constitutions) in various ways. Always this is said to be a temporary matter with which we should not be overly concerned, because there is a legitimate interest at stake and the powers are only emergency powers. That is not the way the Constitution is supposed to work.

This Reason article focuses on the Second Amendment, which is always in peril as the common right to bear arms is threatening to the powerful in every generation. But consider also the First:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The First Amendment addresses Congress, but it is supposedly fully incorporated against the states. Lately we have seen bans on worship services being held. That is a violation of "free exercise," and also "the right of the people peaceably to assemble." In fact all of these bans on gatherings of 10 or more people are unconstitutional abuses against the free assembly clause. It may well be wise public policy to suggest that people do not assemble at this time. There may well be an emergency; but that itself cannot be adequate, because governments can always generate emergencies when they wish to do so.

The counterargument is that people should die if we allowed assemblies and 'merely' recommended against them. People may well. But many Americans have died to preserve these liberties, and not just while acting bravely under arms: in the Civil War, for example, disease probably killed more people than weapons. "As He died to make men holy, let us die to make men free," said the Battle Hymn of the era. Making men free was the important thing; dying was a small matter, even a bad death of disease in an encampment.

I have no wish that anyone should die, though everyone shall. But we must not lose focus on first principles. The only legitimate purpose for any government to exist is to preserve and enforce the natural rights. Any government that becomes destructive to those ends may be altered or abolished. This one has been pressing well past its limits. However wise the policy in terms of suppressing disease, if it destroys our natural rights it puts the cart before the horse. The function of government is not to preserve lives but liberty.

I am willing to endure a tactical pause while it seems to enjoy the democratic support of my countrymen. Soon, though, we shall need to reassert limits on the beast we call Leviathan.