My Thoughts on why CoVid-19 "Lockdowns" are Unconstitutional

This article is in reply to the initial comments on a post I made, in which I put a link to a White House petition I started stating that state governors’ “CoVid-19 Lockdowns” violate numerous clauses of the constitution. This is a rework and updated version of a letter that I sent on March 27 to the mayor of my town, which I copied to all politicians in my purview.

Some comments herein directly address concerns or comments made in that post; however, the bulk of the article is from the letter to the mayor. Hyperlinks to references are embedded throughout. CoVid-19 numbers are current thru the morning of April 6, 2020 from: https://www.worldometers.info/coronavirus/country/us/

State and county wide “Shelter in Place Orders,” in response to the CoVid-19 virus are excessive, unwarranted, unconstitutional, abusive, and foolish.

It is absolutely correct that this discussion won’t resolve anything in time to address either the virus or the economy.

Many people have sons and daughters in the healthcare industry. God bless them all, especially the nurses; every nurse I’ve ever met is an angel! Our prayers are with all healthcare professionals.

It is not my salary that concerns me; rather it is the long-term damage that we are, in my estimation, are needlessly doing to not only the economy, and therefore lives, but more importantly to our civil rights and Constitutional Republic. The price of our response to CoVid-19 will have been economic damage, the cost will have been yet more erosion, if not an outright shredding, to the very foundation and fabric of our country.

I also fully understand the concern for the safety and wellbeing those whose daughters are nurses. It is no different than a mother who has sent her son off to war. It is the same as the father whose daughter is a cop on the street. The same as parents who have one son as a firefighter and his 19-year-old brother loading weapons on an F/A-18 Hornet on an aircraft carrier in the middle of the Persian Gulf. The same as the parents of the three contracted security guards standing watch over the hangar and aircraft I was flying in Kabul, and who all got killed by an Afghan enlisted soldier Taliban agent. I’m sure it is the same as my mother had every time that I went on det while in the Navy or over to Kandahar or Kabul as a contractor.

Adults who enter high risk professions know those risks up front. Very often these professions are selfless service functions, such as first responders, police, soldiers, sailors and airmen. As parents, our job should be to honor and respect their choice to protect others, our society and our freedoms.

However, while I understand everyone’s comments, I feel that the forest is getting missed for the trees. The response to this virus has been unwarranted, when compared to various metrics, past pandemics and WWII. We are committing the equivalent of economic suicide. Finally, to the point of my White House petition (which btw, only allows 800 characters), we have allowed a very dangerous unconstitutional precedent to be set. Except for a very few blogs and websites, this discussion is not being held.

Some Numbers for Perspective

Comparison to 2017 U.S. stats (deaths per day & total deaths).

According to the CDC, during 2017, the last year with published data, the following number of people died per day:

7708 per day (2,813,503 total) from all causes
2341 per day (854,390 total) from major cardiovascular diseases
1641 per day (599,109 total) from cancer
153 per day (55,672 total) from the flu
129 per day (47,173 total) from suicide
110 per day (40,231 total) from motor vehicle accidents
100 per day (36,338 total) from unintentional falls
16 per day (5,698 total) from HIV

Compare this to the average deaths per day, thus far (only 37 days, not 365 days), for CoVid-19 of 260 per day and 9616 total, as of this morning’s numbers.

Comparison to the flu.

The 2019 U.S. population estimate is 329,671,200.

The estimated median incidence of the flu, again per the CDC, for 2010 thru 2016 is 8.3% of the population, which makes the mortality rate (deaths by infection/total infections) on the order of 0.2%.

As of this morning, the number of active known CoVid-19 infections is 309,080. That’s a known infection rate of only 0.09% of the population. The current mortality known rate for CoVid-19 is 2.9%. The problem with this is that we don’t know the actual incidence rate; the number of infections is a guess at best, unless we test 100% of a population simultaneously.

However, let’s say CoVid-19 infects 20% of the population, 2.4 times that of the flu, and has a mortality rate better than twice the flu, say 0.5%. This would mean ~ 330,000 might die from CoVid-19 (which agrees with the worst-case estimates from the government earlier last week), but is an order magnitude less than a million.

The mortality rate from CoVid-19 is probably on the order of that of the flu, or even less. The deaths from CoVid-19 are being inflated because in NYC, in particular, and worldwide in general, a person who is tested positive for the virus at the time of death, is being counted as a CoVid-19 death, even if the person had a number of comorbid factors, of which CoVid-19 was not actually the principal cause of death. In other words, if I am asymptomatic for CoVid-19, but get hit by a car crossing the street, and test positive for CoVid-19 postmortem, my death is being counted as a CoVid-19 death, wherein in fact, the actual cause of my death was the car accident, not the CoVid-19! Exaggerating data only does more harm than good.

The Diamond Princess. Only 629 (17%) of the 3700 passengers aboard the Diamond Princess became infected with CoVid-19. Of those, there were only 7 deaths, which equates to a 1.1% mortality rate. Bear in mind that this was in a perfect crucible / “petri-dish” situation which facilitates the spread of disease.

Italy. 1) Italy has a true socialized medicine industry, 2) there are approximately 300,000 Chinese workers, predominantly in the textile and fashion industry, in northern Italy, 3) there are nine, yes nine, flights a day between China and Italy, 4) Italy has an aged population, of predominantly the same demographic that is at risk of death from CoVid-19, or any influenza for that matter, and finally, 5) 28% of the Italian population smokes, which only aggravates CoVid-19 symptoms.

Past Pandemics.

2009 H1N1 Total U.S. Deaths. From the CDC, “final estimates were that from April 12, 2009 to April 10, 2010 approximately 60.8 million cases (range: 43.3-89.3 million), …, and 12,469 deaths (8868-18,306)” occurred from H1N1. This makes the mortality rate from H1N1 for that period only 0.02%.

1968 H3N2 Total U.S. Deaths. From the CDC, an estimated 100,000 deaths.

1957-1958 H2N2 Total U.S. Deaths. From the CDC, an estimated 116,000 deaths.

1918 H1N1 Total U.S. Deaths. From the CDC, an estimated 675,000 deaths.

Excluding the 2009 H1N1 pandemic, the U.S. has weathered seven of the worst pandemics in history, the other three shown above, plus HIV/AIDS, the 1910/11 cholera, the 1889/90 flu and the 1852 thru 1860 cholera outbreaks, without the extreme response we’ve inflicted upon ourselves for CoVid-19.

WWII U.S. Casualties.

From 9/1/39 to 12/31/46, total U.S. casualties during WWII were 419,400, which equates to about 157 deaths per day. Leaving out the neutrality period prior to 12/7/41, Pearl Harbor, there were 416,871 casualties, which equates to about 225 deaths per day. Deaths per day from CoVid-19 are currently at that level, however, keep in mind that the date range is 1850 days, after Pearl Harbor to the end of 1946 for WWII, versus 37 days thus far for CoVid-19. As the virus runs its course, which it invariably will, the final rate will be significantly less.

Summary by the Numbers.

In none of these previous examples did we shut down the economy, schools or sporting and entertainment events, nor do we practice “social distancing” every year for the flu, we do not stop people from driving, walking, or having sex, nor should we. Our cities do not replicate conditions on a cruise ship, which only had a 1.1% mortality rate. The U.S. does not have the same extenuating factors that Italy does. In fact, the President put a travel ban to/from China very early in this entire ordeal; that single factor probably did more to slow the spread of CoVid-19 than all else combined. When compared from the perspective of daily mortality rates and other metrics, the CoVid-19 numbers simply do not warrant the reaction.

Tying all of this together, at the end of the year, my estimate is that the death rate per day from CoVid-19 will be well less than 200 per day, closer to 50 per day, with something less 20,000 direct deaths.

Economic Suicide

The stock market crash.

Between March 4 and March 27, the three major stock market indices, DJIA, NASDAQ and S&P 500, are down an average of 15%. While difficult to precisely quantify, consider that $1M invested in a 401K plan on March 4, has decreased least $150,000. If the owner of this fund were nearing retirement, instead of having $40,000 per year to withdraw over 25 years, they now have only $34,000 per year to withdraw, presuming the same 4% per year withdrawal rate. The average 401K portfolio size for those age 60 to 69 is less than $200,000. The markets do fluctuate, however, this dramatic drop in only three weeks was entirely panic driven and needless.

Idle hands do not create wealth.

Millions now sit at home, idle, because of “Shelter in Place Orders.” What far too many politicians fail to grasp is that human activity, ingenuity, and creativity are what creates wealth. Wealth does not simply exist as a finite amount to redistribute, nor does it exist for the government to dole out. Governments can print money, but they do not create wealth, the only economic power a government has is to tax and redistribute or to borrow against future generations.

Yet another bailout.

Because of media driven fear and hyperbolic governmental reaction, the economy, which in the first few months of the year was operating on overdrive, has been set into a tailspin. To the rescue comes the Federal government with the Coronavirus Aid, Relief, and Economic Security (CARES) Act was an 880-page bloated “stimulus package” chock full of pork barrel projects. 880 pages! Think about that. This instantly added more than $2 trillion on top of the $23.6 trillion debt we already owe. My seven-month-old granddaughter already has a debt burden of $73,000!! How is this responsible??

10 million Americans have filed for unemployment in the last two weeks.

The collateral damage from this alone will be enormous. There will no doubt be an increase in suicides, as well as lost life expectancy due to decreased incomes and decreased real wealth. Yes, 401Ks and the stock market can be expected to eventually recover. However, time is the one thing that cannot be replaced when it comes to compounding interest, among other things.

The GDP Compared to China.

Looking at Bank of America and U.S. Federal Reserve & Treasury Department projections for 6 months out, we can make the following comparisons:

U.S. GDP Before the Virus: $23 trillion
China GDP Before the Virus: $15 trillion
U.S. GDP After the Projected 30% Collapse / Great Depression = $16.9 trillion
China GDP After Slow Down in Spring 2020 = $14 trillion

The geo-political ramifications of living in a world where the United States and China are EQUALS on a GDP level in the year 2021 cannot be underestimated. What was projected to occur in the year 2060, will take place in 2021, not because China overtook America economically, but because America was devalued to their levels nearly instantaneously in economic historical terms. In the span of 6 months, America will be reduced to 1970's levels GDP, effectively erasing 50 years of economic history.

WWII.

Yes, there was rationing during WWII, but this is because raw materials were diverted to war time production. People were encouraged to ration certain commodities, but not ordered to close a business. In fact, the economy was booming, and industry transformed incredibly, to the point where a B-24 came off the line every 63 minutes!

Financial Summary.

Panic, driven by the media, along with governments using incomplete models, which showed unrealistic mortality and infection rates, forced a collapsing stock market. This needlessly destroyed significant wealth. Politicians, in the panic to DO SOMETHING, illegally issued “Shelter in Place Orders” forcing millions out of work, which prevents the creation of wealth. The Federal Government has added yet another $2T of pork laden debt, on top of the $23.6T we already owe, which further mortgages our progeny’s future. Unemployment is thru the roof. If trends continue, the U.S. and China will nearly equal GDPs by the end of the year, which in and of itself, puts us in a precarious position.

Governmental Actions are Pushing Constitutional Boundaries

Applicable sections of the Constitution.

As stated in my petition, the following sections of the Constitution apply when discussing state and county wide “Shelter in Place Orders:”

Article I, §10, C1: Contracts Clause: “No State shall… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts…”
Article IV, §2, C1: Privileges and Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Article VI, C2: Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof,… shall be the supreme Law of the Land;…”
1st Amendment: Right of Association: “Congress shall make no law respecting… the right of the people peaceably to assemble,…”
5th Amendment: Due Process & Takings Clauses: “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
14th Amendment, §1: Due Process: “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;…”

Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Pundits and so-called scholars will often reference this case as the Supreme Court giving wide latitude to Executive Branches to protect public safety. These “experts” usually quote the first sentence of the sixth paragraph of the case syllabus (italics). However, I submit that it is equally important to read the entire fifth and sixth paragraphs, with special consideration to the bolded text.

While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

Saenz v. Roe, 526 U.S. 489 (1999).

The right to travel is gleaned from the Privileges and Immunities Clause, and the Supreme Court discusses it extensively in this case. The Court admits that states may restrict travel, they “must establish a compelling interest to justify restricting the right to travel. They also must show that they have chosen a narrowly tailored means to achieve that interest.” Furthermore. The justices write, “…the Court had long "recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement."”

The Dangerous Precedent.

It is not the guidelines for “social distancing,” laying low, etc., that I take issue with. If an individual, owner or corporation chooses to follow them, that is fine. Then it is a choice they have made. There is a vast difference between asking and recommending, for the greater good, and ordering.

It is the ordering of gathering size and businesses to close that are deemed non-essential, as North Carolina and many other states have done, that I take issue with. It is the threatening to permanently close places of worship as Mayor DeBlasio has done, that bothers me. It is Christians arrested for peacefully protesting an abortion clinic that concerns me. It is a North Carolina sheriff refusing to process pistol purchase permits (in and of itself a 2nd Amendment infringement) because of CoVid-19, that angers me. It is the FBI shutting down FOIA requests because of CoVid-19 that bothers me. It is the government deciding what is essential business and what isn’t, for every business is essential to those who rely upon it for their livelihood, or what inventory to carry, that sends shivers up my spine. Why does the government get to choose what is and is not an essential business? Someone answer me that please? It is companies issuing “Essential Business Letters” in case employees get stopped by the police going to and from work, that angers me. It is the contemplation of “Immunity Certificates” as a method to limit and confine the legal movement of people that scares me. It is the using of a “crisis” to exert state power where the state has no authority to do so, that puts us on a dangerous path toward a police state that has me very worried.

Constitutional Summary.

The current situation has state and county governments exercising police power to the contravention of the Constitution and the rights guaranteed therein. Furthermore, we have a minority of persons, i.e. elected officials and unelected bureaucrats, who are, in fact, supported in their action by the authority and police power of the State, dominating the majority. CoVid-19 metrics compared to other cause of deaths and past pandemics are not of the same magnitude, nor did past pandemics involve travel restrictions, therefore it is my opinion that states have not established a compelling interest to justify restricting the right to travel, nor to order businesses to close. We have allowed a very dangerous precedent to be set.

Closing

I have been appalled at what has transpired in the country over the past month. There has been little, if any dispassionate analysis, and a whole lot of fear driven reaction.

Is the CoVid-19 virus harmful? Yes, to certain demographics. Will more people die? Sadly, yes. Do I feel uncompassionate for those who may suffer and die from CoVid-19? No, it heartbreaking for sure. It is heartbreaking anytime a first responder, service member, or honestly anyone dies. However, at heart, I am a realist and I know that death is part of life. We do our best to postpone death, which in the case of CoVid-19 means practicing good hygiene and having the common sense to stay home if one is sick; go see the doctor if a fever persists more than a few days. Hospitals should certainly be prepared while public agencies and private enterprise work together to develop a vaccine. Travel restrictions to highly infected areas outside the country were smart, and legal. But beyond these steps is where all governments’ action should end. Our compassion must extend to the living, including society wit large, as well as those suffering, or who are most vulnerable to this virus.

There is a saying in aviation, “No fast hands in the cockpit.” There ought to be equivalent sayings in government, “No fast bills in the legislature” and “No fast enactments of regulations, executive orders or signing of bills.” In the rush to do something, politicians often do far more harm than good. The current situation with CoVid-19 is a perfect example. Because of panic, shortsightedness, lack of perspective and rational thought, politicians have trampled on the rights of citizens, destroyed wealth, prevented recovery, and are saddling our grandchildren with yet more debt. Why?

Politicians, who are only human, in this still Constitutional Republic are supposed to work for us, the People. However, like a drug addict, every hit becomes easier and easier to take, every hit needs to be stronger and larger to maintain the high; it is the same with politicians and power. Every time we allow governments, who are run by human politicians, to infringe on our rights, it becomes easier for them to do so the next time; and the next time they do, they will do so even harder. It is up to us to hold them accountable, not only at the ballot box, but every day.

We must keep in mind that the Constitution is not something we discard or set aside because we feel that it is inconvenient at the moment. There are no asterisks in the Constitution stating, “* except in time of pandemic or when a state governor declares an emergency.” The Constitution applies at all times. We must strive defend it, along with the ideals and rights embedded therein, even during the most challenging of times, the most difficult of circumstances. Will we occasionally fail? Of course, we will; like the politicians, we are all only human. But we must keep vigilance, quickly realize when we have failed, and take corrective action sooner rather than later.

No, this discussion will not help the economy, nor the virus situation, any time soon. Yes, healthcare professionals are at high risk. However, I strongly feel that this we, as a society, must begin to have this conversation. It is my opinion that many governors, while they may have been well intentioned in their desire to protect the public, have severely overstepped their bounds, have indirectly caused grave financial damage and put us on a dangerous path, which if not turned away from soon, may prove impossible to do so without dire consequences. Good intentions often have terribly high costs and consequences. The road to hell is paved with good intentions.

Our nation was birthed from the fangs of tyranny. For anyone who has not read the Declaration of Independence in some time, I encourage you to reread it. Compare what Jefferson wrote, and what those 56 brave men who pledged their “Lives, our Fortunes and (our) sacred Honor” to support, with what is going on today. It’s not very far removed. Our liberties, freedoms and rights, which so many have fought, and died for to protect and preserve, are worth far more than temporary, unconstitutional, restrictions against a virus that is likely no more deadly that the flu and will kill far less than heart disease, cancer, or a host of other causes that the Grim Reaper has at his disposal. In the words of Mr. Franklin, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” We, the People of the United Sates of American, should, should, deserve both liberty and safety. However, we must always remember, neither are free, and both must be eternally protected and fought for. Once carelessly relinquished, the costs of recovering them will be far graver than anything we might imagine CoVid-19 capable of.

If you’ve made it to the end here, thank you for reading!

If you agree, please sign the petition, write your representatives, call them! If you don’t, that is fine, but let’s have a respectful and honest conversation about the differences of opinion.

Namaste all,

Mark

Endnote & Postscript

This was my first article on LinkedIn, originally published on April 6, 2020 and republished here on February 1, 2021. There was no artwork or imagery with the original posting, however, I've added my own sarcastic image here!

The White House petition mentioned has now either been removed from the web or buried in the Trump White House archives; if I find it, I will re-link it in the article.

It is interesting rereading this in light of the events that have transpired in the intervening 10 months.

Mark Stansell

Update February 8, 21021

I've separated the first paragraph and added a PDF copy of the letter to the mayor of Huntersville, NC from March 27, 2020.

Update October 9, 2021

Buried in my files, I found the text of the original White House petition, which I had posted on March 31, 2020.

Tell governors to cease & desist with the CoVid-19 “Lockdowns;” they violate numerous clauses of the Constitution!

Article I, §10, C1: Contracts Clause

Article IV, §1: Privileges and Immunities Clause

Article VI, C2: Supremacy Clause

1st Amendment: Right of Association

5th Amendment: Due Process & Takings Clauses

14th Amendment, §1: Due Process

SCotUS affirmed in Jacobson v. Massachusetts that while a state may use police power to enforce a regulation, such as for public safety, in doing so, a state must not contravene the Constitution nor infringe the rights embedded therein.

SCotUS has affirmed in multiple cases the right to freely travel throughout the union.

Governors are trampling on our rights and doing irreparable harm to the economy. It is time to get the country back to work.