The Eviction Moratorium as a Practical Test of West

West's book, which we have been examining, laid out three tests for justified revolution. 

1) The ends of government are perverted, and,

2) Public liberty manifestly endangered, and,

3) All other means of redress are ineffectual.

Now the end of government is the defense of natural rights, and property is a natural right of the first water according to the Founders. The eviction moratorium not only forbids landlords from exercising their private property rights, it creates felony Federal crimes -- without legislation -- should they dare to do so. This is clearly perverse: the natural right is being not just refused, the natural right is being criminalized. 

Public liberty is manifestly endangered by this. For one thing landlords are being bankrupted, causing them to lose the property that it was their natural right to possess and use. They are threatened with prison, a very pragmatic loss of liberty.

So what about condition three? The prior CDC moratorium was challenged in court, and ruled unconstitutional by the Sixth Circuit. Supreme Court Justice Kavanaugh affirmed this judgment in his dicta. (UPDATE: see Elise in the comments of the previous post for an alternative reading of what Kavanaugh did.) The Biden administration issued another CDC moratorium anyway, in spite of the courts, and admitting that the courts will probably reject this one too. 

On Tuesday, President Biden said he's conferred with constitutional scholars, and the "bulk" of them say the most recent CDC order is "not likely to pass constitutional muster."

"But," he added, "there are several key scholars who think that it may and it’s worth the effort."

So Biden asked the CDC "to go back and consider other options that may be available to them.”

“Whether that option will pass constitutional muster...I can’t tell you,” Biden said. “ I don’t know.  There are a few scholars who say it will and others who say it’s not likely to.

“But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”

So what happens when we see that the other means of redress are in fact ineffectual? West quotes the Essex Result (of 1778): 

"the equivalent every man receives, as a consideration for the rights he has surrendered [in leaving the state of nature to form a social compact]... consists principally in the security of his person and property... [F]or if the equivalent is taken back, those natural rights which were parted with to purchase it return to the original proprietor." (137)

Note the specific requirement to defend person and property. Both are being taken by force: their property is effectively seized, their rights over it at least temporarily void, and their persons threatened with felony prison terms if they disobey this lawless order. They went to the courts, obtained relief, and were denied it by executive usurpation. 

Prudence may caution landlords to try the courts again, in the hope that the second time around the government might agree to restore their rights and perhaps compensate them for damages. If this is a transient harm, as the Declaration suggests, it might be borne in patience. 

Nevertheless please note that it is exactly the kind of offense that dissolves the social contract under our founding theory, restores the right to resume the state of nature, throw off the government, and constitute a new one. The powers that be do not seem to understand that they are playing with fire.