Horowitz: What ever happened to the right to breathe freely?

News & Politics

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” ~Union Pacific Railway Co. v. Botsford (1891)

For how long can American governments continue denying the basic human right to breathe freely without showing a modicum of evidence that masking is effective, necessary in all circumstances, and outweighs the cost to liberty and human health?

Some rights are so natural that they need not be enumerated in the Constitution

We know there is a right to freely exercise religion or bear arms, but how do we know there is a right to breathe without the cruel and draconian covering of our mouths? Sadly, our court system seems to believe that no such right exists, even as judges concoct novel rights to numerous privileges and enshrine them in the Constitution nearly every day through ordinary litigation. However, some rights are so natural and inalienable that they need not be written. Breathing without a dangerous bacteria and carbon dioxide trap over our mouths is a pretty obvious one.

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In fact, in many ways, this is why Madison initially opposed the concept of a written Bill of Rights – because it would imply that only those rights listed are inalienable and that rights only come from government and are not indeed self-evident truths of nature. Even as he was pragmatically introducing the Bill of Rights on the House floor on June 8, 1789, Madison noted that some objected to it on the grounds that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”

While introducing his first draft, Madison even conceded that he found this argument to be “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.” The only reason he felt he “guarded against” this concern was because of the language he originally proposed in “the last clause of the 4th resolution.” That original draft language was very strong and categorical:

“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Although part of the spirit of this clause remained in the final versions of the Ninth and Tenth Amendments, the language is not as strong as Madison’s original draft. Perhaps the fact that we think government can indefinitely regulate human breath is a fulfillment of Madison’s original concern.

On Friday, the Supreme Court, yet again, slapped down a California executive branch edict using COVID to interfere with freedom of religious worship. In a 5-4 decision, the court issued an injunction on the California health department’s rule banning home-based group worship or Bible study during the reign of COVID terror. “The government has the burden to establish that the challenged law satisfies strict scrutiny,” wrote the unsigned order. “To do so in this context, it must do more than assert that certain risk factors ‘are always present in worship, or always absent from the other secular activities’ the government may allow.”

I found myself shouting “Amen!” while reading this, but at the same time wondering why the courts only seem to apply strict scrutiny to COVID rules affecting a selection of very specific liberties, such as religious practice or gun rights, but not the more fundamental natural right to move freely and unrestricted, without one’s nose and mouth being restrained, or shutdown orders in general. Somehow it seems like our court system only recognizes unenumerated rights when they are fabricated and not rooted in natural law.

Even without questions of cruel and unusual punishment or a violation of the Fourth Amendment’s dictate against illegal search and seizure, it’s obvious that making someone cover his or her nose and mouth – to the draconian extent the government has applied it – violates the most basic definition of individual liberty itself. As defined by Blackstone, individual liberty is “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” William Blackstone wrote that the right to “personal security” includes “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, [and] his health,” as well as “the preservation of a man’s health from such practices as may prejudice or annoy it.” [1 Commentaries *125, *130.]

It’s one thing to mandate masks for a limited time on certain people in certain places – for example, for people with clear symptoms, in health care settings, or on mass transit. But to mandate them indefinitely in order to move freely, obtain vital goods and services, and basically live life in any way clearly violates the most basic individual liberties that never needed to be enumerated in the Constitution. And to do so without showing evidence that someone is a threat or aren’t already immune, or that the masks even work, violates the Fifth and 14th Amendments’ due process clause.

Ex post facto criminalizing human breath

The Supreme Court stated in the landmark Calder v. Bull (1798) case that a legislature cannot go so far as to violate natural law even if the “authority should not be expressly restrained by the constitution or fundamental law of the state.”

Chief Justice Samuel Chase stated: “An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” Chase was referring to the idea of a state criminalizing behavior ex post facto. His point was that even if Art. I Sec. 10 of the Constitution didn’t explicitly bar legislatures from passing ex post facto laws, “To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.”

In many ways, the mask mandates going on indefinitely forever for children to obtain an education or for humans to live a free life is the ultimate form of ex post facto “law,” which was defined in Calder v. Bull as making “an action done before the passing of the law, and which was innocent when done, criminal.” We were all born as humans and are forced to live and obtain certain services. It’s one thing to force someone to wear a mask for a limited time, place, or scope. But to do so essentially all his life or for a child in school when healthy is retroactively criminalizing human existence predating COVID.

Mind you, Chase was speaking of a law duly passed by both branches of government, not the government edicts we have today. The notion that the CDC can simply mandate masks on two- and three-year olds, which fundamentally violates their bodily integrity and their cognitive abilities in the most basic function of their individual liberty, shocks the conscience. It’s mind-numbing how there hasn’t been a major lawsuit on this issue. This is especially jarring given the lack of evidence that children pose a risk of spreading the virus or that masks are even effective.

It’s impossible to harmonize COVID fascism with decades of case law on right to privacy

It’s not like we haven’t lived through decades of the courts inventing novel rights that aren’t written in the Constitution and most certainly aren’t natural. For example, in 2017, the Supreme Court, in Packingham v. North Carolina, ruled that the state’s law restricting child sex offenders from accessing social media was not enough of a “compelling interest” to outweigh what the court believed to be an important right, even though the state clearly had a much more compelling case for blocking pedophiles from social media than masking children for COVID.

The court in Packingham designated social media a place “to engage in a wide array of protected First Amendment activity” like streets and parks and noted, “By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

Think about that: One has a right to access social media even as a convicted child sex offender because one basically can’t live life properly without it, according to the court. Yet, at the same time, government can restrict human breathing in nearly every setting without having to provide any evidence one is a threat or that the experimental medical device of masks – authorized only under an emergency use authorization – even works. They can place people at risk for shortness of breath, headaches, lack of cognitive function, bacterial infections and rashes, and self-contamination, all without showing that they work.

Justice William Douglas was able to suggest in the famous Griswold v. Connecticut (1965) case, “The First Amendment has a penumbra where privacy is protected from governmental intrusion,” even though there is no right to privacy in the Constitution. Justice Arthur Goldberg stated in his concurrence that birth control is covered by the unenumerated rights of the Ninth Amendment. “The concept of liberty … embraces the right of marital privacy” and The right of privacy is a fundamental personal right.

Well, if birth control is a concept of liberty and privacy so fundamental as to serve as the backbone for Roe v. Wade to kill babies, then what about the privacy and liberty of breathing? If anything, in this case it’s worse because you are not asking to take an action (consume birth control), but to refrain from an inaction and not have government force you to wear an experimental medical device that has not been approved for respiratory viruses.

As Clarence Thomas stated in his famous dissent in Obergefell:

“In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

The court punctuated this right to privacy under the 14th Amendment by stating in the Lawrence v. Texas (2003) sodomy case, “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Think of how they are demeaning the existence of people who are in pain and have trouble breathing under a mask and are controlling the destiny of the most sensitive parts of our body with these Chinese face burka edicts. Mandatory mask-wearing for long periods of time to obtain vital services (especially outdoors) clearly violates the liberty of “bodily integrity” enumerated in the landmark Glucksberg (1997) case among those liberty interest secured under the 14th Amendment.

Moreover, a person certainly has a greater right and compelling human need to breathe without oxygen reduction and rebreathing their own toxins left on a mask than to engage in sodomy. This is especially true for children being forced to exercise and play sports for a protracted period of time with a face covering that undoubtedly compromises their intake of oxygen and exfiltration of CO2 while laboring with rigorous physical activity.

In Roe v. Wade, the court said, “The abortion decision in all its aspects is inherently, and primarily, a medical decision.” The court applied that even to when that decision is 100% directly killing a particular baby. It’s extremely hard to see how that doesn’t apply to human breathing, especially when there is no evidence that an individual is carrying the virus, has the ability to spread it, is a danger to a particular individual, or that said governmental regulation even helps.

When the court established the right to bodily integrity in the aforementioned Union Pacific Railway Co. v. Botsford case, Justice Gray noted, “The right to one’s person may be said to be a right of complete immunity; to be let alone.” That would imply that perhaps the forcing of a human to place something over his nose and mouth might not even be subject to any government interest balancing test. But even if we are to believe that the pandemic would align bodily integrity more in line with a typical right, like any fundamental right, it can indeed be regulated to some extent, but the burden of proof must be on the government to demonstrate it is necessary and efficacious in that particular circumstance, not the other way around.

Indeed, 80 years into the Supreme Court’s crusade to invent new rights not mentioned in the Constitution, the only rights the justices won’t recognize are those that didn’t even need to be stated in that document, such as the right to breathe.

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