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A Constitution of some authority

Judge Andrew P. Napolitano on

A federal court in Pennsylvania this week has become the first in the nation to rule that the lockdown, social distancing and essential workplace regulations imposed by Gov. Tom Wolf are unconstitutional.

The judge found that the governor's orders were so inconsistent, so bereft of any rational basis or scientific model, and so ignorant of the Constitution the governor swore to uphold that he invalidated all of them.

Here is the backstory.

The whole purpose of the Constitution has been to establish a federal government and, at the same time, to limit it. Some of the limitations are in the body of the Constitution itself. Most are in the amendments. A prudent study of the founding era makes it clear that more than half the states ratified the Constitution only upon the promise by the Constitution's drafters of the addition of a Bill of Rights.

The key figure in the era is James Madison. Madison had three phases in his public career. The first was as a radical, along with his neighbor Thomas Jefferson, urging revolution against the British king because he taxed without representation and interfered with commercial activities and personal liberties.

Madison's second phase was as a promoter of a strong central government, along with Jefferson's enemy, Alexander Hamilton. The Constitution -- which he basically drafted -- offered both a devastation of state sovereignty and a roadmap for regulatory control over economic activities that would permit the new government to pick winners and losers.

 

His third phase was as an anti-federalist, or Democratic-Republican, back with Jefferson, and to which he went as soon as he saw how the federalists during the presidencies of George Washington and John Adams twisted and abused the words he wrote in the Constitution.

The turning point for Madison was the establishment of a central bank. Madison's famous Bank Speech shows a radically transformed thinker. He argued that there was no power in the Constitution for Congress to establish a bank and that the power to do so was intentionally left to the states. He also argued that government can only do what the people authorize it to do, subject to their inherent natural rights.

Some of Madison's motivations might have been personal. But by the time he drafted the Bill of Rights, he was firmly in the Jeffersonian, small government, maximum individual liberty camp. That camp produced what we now have as the first 10 amendments, the essence of which is that our rights are natural, they come from our humanity, and thus, government may not constitutionally impair them without due process.

The ambiguities of constitutional verbiage -- or perhaps Madison's genius -- and the modern judicial reluctance to call a natural right a natural right have produced two due processes: One is procedural, and one is substantive.

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