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The Elastic Clause, COVID-19, and Tyranny

Monday, June 22, 2020


Alexander Hamilton and Thomas Jefferson's Debate on the Constitutionality of a National Bank actually is a good foundation upon which to discuss the "necessary and proper" clause.


The American government makes quite a bit out of the “elastic clause” - using it to justify many actions it takes to "provide for the general welfare of the United States."


Jefferson's argument was that simply because something was "beneficial and convenient" - did NOT make it "necessary and proper."


The "and" is also important. Something could be "necessary" but NOT "proper" - and something could be "proper" but not "necessary".


My thoughts on the constitutionality of the government's response to the COVID-19 pandemic in the United States:


Some people see how the government is addressing this “crisis” as, if not necessary, at least beneficial – even if NOT convenient. And that is enough for some people to support all the measures the governments (not just national government, but each state and local government) impose. Because, yes, these are measures that are IMPOSED upon us.


Some see the benefit as worth it - and then there are those who are questioning whether or not these measures being imposed upon us are constitutional.


In my view, they are not. Why? Not just because of Amendment 10 – which would simply put the power in the hands of the states, but because of the elastic clause, Amendments 1, 3, 4, and 5 (and 2, but to understand that would take an in-depth examination), the idea of natural rights – and Locke’s social contract - the premises upon which The Declaration of Independence was written - as well as the U.S. Constitution.


The response – and especially the continued response after we know more and understand more – falls FAR outside “necessary AND proper” - and to be clear, most actions taken have not even been beneficial. And ZERO actions have been “convenient.”


In fact, very little that has been done has been necessary – nor does most of it fall into the government’s purview of having enough power to protect rights without enough power to take them away (this is where the conversation on natural rights and Locke’s social contract comes in).


However, some of what has been imposed upon us has been beneficial. Unfortunately, none has been convenient, and even less has been proper. (I know there can be nothing less than “none.” I am instead referring to fewer actions can be considered proper than the number of actions considered beneficial.)


I am not going to debate the "science" - even though I could talk about herd immunity, the ineffectiveness of masks in the infection rate of respiratory illness, the mutation of the virus, the asymptomatic rate, etc...


Most Americans, apparently, won’t see what is happening in response to COVID-19 as negative – as long as what? It protects one person’s health? Saves one person’s life? Makes people feel better? Feel safer?


It is important to understand that the other side of the coin of freedom is INDIVIDUAL RESPONSIBILITY.


Also to note: The answer to government interference that might lead to tyranny is a stronger and larger CIVIL SOCIETY.


What we have seen in 2020 in response to COVID-19 is outright despotism – and it isn’t even that soft. Americans have given up their individual responsibility and thus freedom for a sense of security. But in reality, Americans aren't even given anything like security in return because most people do NOT feel safer as FEAR is driving most behavior. And why is FEAR driving behavior? Because of the way the narrative is being framed. The fear is orchestrated. That alone should be troubling.


And because of the science I did not mention, those who do feel safer - it is a FALSE sense of security. "Just in case” is a term I’ve heard people use…”just in case these measures DO help.” JUST IN CASE!!! Wow. What we are willing to give up...just in case.


Equally, if not more, important, we have also seen a weakening of and destruction of the bonds that keep civil society strong – churches not meeting, sports teams not practicing, sports seasons cut short, graduations put online, weddings postponed, funerals and memorial services prohibited, events that bring people of common interest together – like conferences – CANCELED. No graduation or birthday parties. No huge anniversary celebrations. Schools closed. Parks closed. Businesses closed. Restaurants closed. Malls closed. Theaters closed. No concerts. No adult day care for our lonely elderly. Libraries closed too. Doctor offices closed. Speech therapy, occupational therapy, social interactions adapted to screens. No orchestra, band, community sports or activities. Festivals and fairs closed down. Clubs and bars closed/fined. Salons and gyms closed. Beaches closed. Charities prohibited from operating – and losing donations in the process. The list goes on.


Weaken these bonds. Diminish the benefits that come from a strong civil society – like cooperation, self-reliance, self-initiative, trust – take away the sense of belonging, the sources of moral authority – take away citizens’ meaning and purpose…Then take away actual human contact – not just the hugs, handshakes, and back slaps, but the friendly voice, smiles, teamwork, joviality, and small acts of kindness that help people bond.


Even the average American could understand why there is an increase in anxiety, mental health problems, and suicides.


As a lover of freedom and a constitutionalist, I see the potential end of the Great American Experiment in front of me RIGHT NOW (One of the reasons I founded Freedom Academy). Many in the media and government think this is all about the November election. If only.


I have watched the American people respond – reporting on neighbors, bullying fellow citizens into compliance with nonsense rules, reacting in hostility and suspicion – driven by FEAR. And for most, it appears to be real fear. Does it really matter who wins? Will that determine whether or not we “bounce back”?


And if we do "bounce back", what will the American response be next time? What does “next time” even look like if most Americans don’t recognize what is happening THIS TIME – and instead have politicized the very foundation upon which the freedoms we have taken for granted was built?


What will it take to have Americans destroy their own freedoms permanently? What freedoms have you been willing to sacrifice for the general welfare of the United States? What further liberties are you willing to give up? What is the “red line” for you? What makes that the red line? And what would you be willing to risk if the government stepped over it?


Your reputation? Your friends? Your job? Your health? Going to jail? Or...Nothing? because this is America...and if you just stay quiet, you believe it will all blow over and it will someday just correct itself and get back to "normal".


Alexis de Tocqueville DID say, "The greatness of America lies not in being more enlightened than any nation, but rather in her ability to repair her faults."


But he also said: "“Tyranny in democratic republics does not proceed in the same way, however. It ignores the body and goes straight for the soul. The master no longer says: You will think as I do or die. He says: You are free not to think as I do. You may keep your life, your property, and everything else. But from this day forth you shall be as a stranger among us. You will retain your civic privileges, but they will be of no use to you. For if you seek the votes of your fellow citizens, they will withhold them, and if you seek only their esteem, they will feign to refuse even that. You will remain among men, but you will forfeit your rights to humanity. When you approach your fellow creatures, they will shun you as one who is impure. And even those who believe in your innocence will abandon you, lest they, too, be shunned in turn. Go in peace, I will not take your life, but the life I leave you with is worse than death.


That's where I am today. I am shunned as impure because I don't believe the measures that were imposed - but more importantly that are NOW being imposed - are necessary and proper.


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