You can tell about the soul of a people by looking at who they honor. It used to be that America, more or less universally, admired its founders. But Americans today increasingly fancy themselves more evolved than George Washington and Thomas Jefferson. We imagine that these founders have been “found out.” Their great secret—their hypocrisy and “racism”—enables us, indeed requires us, to tear them down. It’s time to leave them in the past now, and find new heroes.

But where is this rage of pride leading? No sane, healthy society would elevate a person like George Floyd, and yet it would be difficult to name a person more revered in the country today. 

While many Americans are still unable to have funerals, Floyd received a send-off fit for a statesman. And that was just the start of his strange apotheosis. Having first become an angel, he has taken on more godlike proportions. In cities across the South, his colossal, digitized visage lights up the sky.

While it’s bad form to speak ill of the dead, we may make exceptions when the departed are wrongly beatified. This perverse exaltation reflects a timidity and self-loathing that increasingly defines the American soul, qualities revealed by months of acquiescence before unprecedented attacks on the freedom and dignity of the American people. 

These attacks are part and parcel of a radical effort to transform the country politically, historically, psychologically, and culturally. No less than Barack Obama expressed the necessity of starting over again, calling John Lewis a “founding father” of “that fuller, fairer, better America” that could very well take “centuries” to build.

If we’re being honest with ourselves, few men have a better claim to inclusion in the pantheon of this new America, whatever that entails, than George Floyd.Floyd, like Dr. Anthony Fauci, is an omnipresent figure who has played a corresponding role in ushering our creepy, despotic “new normal.” Arguably the most powerful doctor in human history, it is heresy to question Fauci’s mere utterances. Despite obvious evidence of his political motivations, he receives the unyielding adulation of millions of Americans. He is benevolent, unfireable. Even his mistakes are somehow proof of his perfection.

These new founders aren’t necessarily good founders, but they are the founders we deserve. An America with more confidence, self-respect, and jealousy of its liberty would not have lifted them to such prominence.

The original American Founders appealed to “manly firmness.” What would they make of Americans today?

Over the last few months, Americans have faced an unrelenting barrage of commands and insults. We have been ordered to give up work, business, and religion—to suspend human relationships under penalty of law. We have been ordered to hate ourselves, to celebrate the erasure of our heritage, and welcome whatever price America’s “guilt” requires. We have seen Americans denied the basic protections of law. 

To be sure, many protest these things, although many are too afraid to do so publicly. Others may be just credulous. But countless others have been active, willing participants in their own disenfranchisement. For many Americans, it seems, the highest virtue is to be perceived as obedient to unelected bureaucrats and their elected intermediaries, or else appropriately sensitive to the call of “social justice” and its advocates. No matter how arbitrary, absurd, or humiliating, the orders of these two classes of rulers must be followed, and with zeal.

A pandemic of self-righteousness and fear has turned many into willing subjects of the elite. For these, no activity, no matter how “essential” or sacred, that has not received the sanction of “experts” can be countenanced. What’s most remarkable is how many Americans have accepted living under these conditions indefinitely. There is no command too degrading or irrational for them to accept, and some go even further than is demanded. 

Perhaps you have seen people walking around in face shields lately. Eager to obey, they are just as eager to inflict punishment—gratuitous punishment—on those who contradict the superstitious authority of “science.” A deep distrust in the ability of ordinary people to use common sense, to think for themselves and direct their own lives, has led to a large part of the public identifying with an aristocracy of scientists, embodied in the august figure of Anthony Fauci. At bottom is a terror at the thought of risk and of the responsibilities of citizenship, which are readily abdicated to bureaucrats.

The whole spectacle is obscene and un-American, but it does not begin to capture the full extent of America’s abasement. Enjoined to honor as some kind of martyr a career criminal who pointed a pistol at a pregnant woman’s abdomen, many Americans have obliged that command as well. 

The deification of Floyd is a remarkable achievement of the politics of ritual humiliation and a spectacular victory for the new cultural revolution. With stunning rapidity, Americans over the last few months have been led to reject their heritage and accept Black Lives Matter as the nation’s conscience. 

The country has descended into ecstasies of self-flagellation that only intensify, with no sign of stopping. Americans kneel in penance for their skin color, while elected officials surrender entire cities to mobs of racial extortionists. America is condemned, its history rewritten, almost without opposition. An entire race has been judged as essentially evil. Some have been prosecuted for defending their property while white. None of these incursions have found any kind of organized response. Rather, they are advancing. Americans now support kneeling to protest the national anthem.

So what is this new America that we are all being told to welcome and celebrate like? It combines the worst features of unaccountable aristocracy with mob tyranny. In it, people with lots of letters after their name, and the so-called protected classes (sometimes both), tell everyone else what to do. Anyone who disagrees with them is a bad person who must be destroyed. 

What about the countless people in the middle: people who don’t have Ph.D.s and can’t claim victimhood under the rules of the new game? Simple: they have no part in our politics today, except perhaps to foot the bill. 

Whatever you’d like to call this, it isn’t freedom.

America’s proper founders understood that republics, no less than any other form of government, are not built to last forever. They require people to be patriotic, brave, and guarded of their liberty. But for decades, Americans have lost confidence in America and in their own ability to govern themselves. Self-rule was exported to a class of “experts,” while generations of schoolchildren were taught to hate America and its past. 

Finally, Americans have lost their courage and their esteem for their own capacity to be self-governing. Many seem eager to lighten the burdens of self-governance and follow orders. Others seem, strangely, to enjoy being told how racist and awful they are.

In our arrogance, we imagine that it is we who are disdainfully rejecting America’s Founders. They would want nothing to do with us.

In the small Southwestern Pennsylvania coal-mining town where I grew up, the locals kept to themselves and were notoriously tight-lipped when it came to praising anyone for anything. The elderly residents—mostly descendants of Slovak and Croatian immigrants who came to the town to work the mine—were pessimistic people, distrustful of the Democratic politicians they voted for and resentful of the pretensions of the younger folks who had moved away to bigger cities, such as the 20,000-person county seat 30 minutes east on Interstate 70.

But men like my maternal grandfather did have one particular compliment they doled out as sparingly as the chipped ham or sardines they arranged on slices of white bread: they would note with approval when someone could “handle himself.” This person, usually a taciturn mine worker reminiscent of the cart-horse from Orwell’s Animal Farm or a stout widow who kept her tiny company house in immaculate condition for decades after her spouse’s demise, demonstrated considerable strength in the face of the decay and decline of their dwindling piece of the world.

They matched their personal force, such as it was, against the impersonal force of socioeconomic change. And whether this was right or not, seemingly able-bodied people who complained or even asked for assistance may have received it but were despised for their weakness.

Walter Stechly, the author’s grandfather, in 1942.

Walter Stechly, the author’s grandfather, in 1942.

I spent many summers with my grandfather. My half-brother, older than me by a decade, helped him lay bricks, insulate walls, wire and then test electrical circuits, and replace outdated lead plumbing pipes with PVC. I, by contrast, was given the simpler task of smashing aluminum cans with a rubber mallet. Since he drank 20 or 30 “lite” beers a day—Stoney’s was his preferred brand—the supply of cans never diminished regardless of my efforts.

After I had smashed several hundred cans, he took them to an aluminum recycling facility in exchange for a small sum of money, which he shared with me in proportion to the quality of my efforts. He rarely approved of the way I smashed the cans because the results were usually asymmetrical. He preferred an even crush as he could do himself merely by placing his massive hands on the top and bottom of the can and exerting pressure. “Look at your brother out there shoveling like he has a steam engine,” he’d tell me, proud of the hulking adolescent laborer who wasn’t even his blood relative. “He’s OK. Your brother can handle himself.”

Handling Oneself in Strength

All through my youth, I approached problems and challenges through this lens. Could I “handle myself” against peers, siblings, and abusive parents? The point, as I understood it, was to bear up under the unbearable—not to invite this pain out of some misguided lust for martyrdom, but to endure it for as long as necessary to escape.

For my grandfather, who had served as a medic during World War II and witnessed considerable carnage during the invasion of Italy, there were no victims in life, only survivors. Surviving, by extension, conferred only a limited right to continued existence: you lived to fight another day, for what that was worth. “Still sucking wind,” in his words.

I went on to endure my own hardships, absurd, and avoidable difficulties precipitated by my parents’ criminal behavior, and I tried to overcome them with ceaseless exertion. Strength, I reasoned, had to be met by strength. As I listened to lectures on early Christianity during college—a period when I worked 40 hours a week to pay my way—I contemplated those rich Romans who, upon discovering the religion in the wake of blood-soaked contributions made by its original martyrs, had sought to acquire their patinas of saintly suffering in the marketplace of public religiosity.

I puzzled over those patricians who gave away or sold their luxurious country villas and accompanying latifundia to journey to Asia Minor and set up residence in a cave or atop a high pillar, punishing themselves in various ways to resist what they perceived as their basest animal urges. Their decisions to openly embrace weakness, as contrasted with those humbler martyrs and hermits who had no choice but to suffer for their faith, gave them a special status during a time of imperial decline: they were “athletes for Christ,” experiencing intense privations to showcase their spiritual mettle even as their civilization declined in power due to plague, warfare, and bureaucratic mismanagement.

I recount all of this backstory because, at least in this case, the shortest way home—meaning to that home described in my first few paragraphs—happens to be the long way round. There, the distinction was made between those members of the community who could “handle themselves,” often in spite of insurmountable odds, and those who begged for assistance even when presumed capable of standing on their own. Help was always given to the latter by relatives, grudgingly of course, with the assumption that those in tight spots eventually wouldn’t be.

In other words, these “victims” of life itself were thought to occupy a temporary position. They might have fallen short, but the belief was that they could regroup, redeem themselves, and restore their lives to whatever status quo ante was in place before their troubles. That didn’t always work out in practice back in the 1980s, and with the town’s population in 2020 half of what it was then while opiate intake is probably many orders of magnitude greater, it likely works out even less often now.

Nevertheless, “handling myself” was the mental construct that carried me through a significant stretch of poverty and mental anguish. I wasn’t absorbing blows for the sake of absorbing blows, like a flagellant in a medieval procession or wrestler Cactus Jack in a blood-soaked hardcore wrestling match, but rather to reach the other side, wherever that was.

I would meet strength with strength, whether competing at a powerlifting event, arguing my case in a moot court tournament, or debating with peers in a graduate seminar. I harbored no delusions of grandeur but intended to hold my own. If I received criticism, I would address those issues and improve my performance. Much of my early adolescence, lost in a fog of ill-considered Child Protective Services actions, amounted to one loss after another, but that simply afforded me a deep foundation from which to rebuild.

The Strength of Woke Weakness

But this intellectual beau monde for which I had rebuilt myself, with books and barbells and 12 years in graduate school, is not one that prizes the ability to “handle oneself.” No, this brave new marketplace of ideas is monopolized by those who exhibit the strength of weakness, a strength of weakness that might be somewhat familiar to those late imperial Romans who were thinking of selling the estate and riding off into the high desert to drop some denarii on the salvation of their immortal souls. I write somewhat for a variety of reasons, most notably that a Roman circa 400 A.D. was still convinced that his soul would transmigrate somewhere after death, whereas today’s aggrieved peddlers in this “wokeconomy” propelled by the tail-winds of outrage are very much concerned with their life in this world.

I had not anticipated the development of a world in which status in some agreed-upon, academy-determined category of victimhood would prove sufficient to foreclose discussion of a particular subject. I failed to realize that mere reference to weakness, in particular to having and showcasing the most unimpeachable and immutable weaknesses, would confer such profound discursive advantages. The classic appeal of the late 18th- and early 19th-century abolitionists—“am I not a man and a brother?”—was how my father, who in spite of his myriad other faults had always embraced his own interracial family, explained human relations to me. Anthony Hopkins’ classic line from David Mamet’s script for the 1997 movie “The Edge” stuck with both of us, too: “What one man can do, another can do.” And Jacques Rancière’s emphasis on “the equality of intelligence” in his book The Ignorant Schoolmaster had carried me through my later years, fueling me with the conviction that anyone can teach anyone else anything, provided both parties are sufficiently motivated and open-minded.

Moreover, much of this boasted-about weakness was feigned. The truly disadvantaged—the invisible or less visible poor, disabled, “BIPOC,” what have you—had no stall or kiosk in which to sell their wares in the marketplace of ideas.

Their actual weakness, in many cases, had been assumed by well-educated spokespeople, who claimed to “do the work” on their behalf. Much of this “work,” insofar as I could understand it at all, consisted of accusing other people of not doing the work, not “organizing” (organizing what?), not “doing the reading” (reading what?), not educating themselves (you weren’t “paying them to educate you,” and believe me, I wouldn’t have). Such peremptory statements were meant to function as the end, not the beginning, of a conversation.

In fact, most conversations with others, even others ostensibly allied under the same political “big tent” who conceivably might support a project such as Medicare for All, were no longer possible at all. Only the divisions, which multiplied alongside the contradictions, mattered.

Social media in general and Twitter in particular are not reflections of life itself, the real life in which most good people live and die, but they do provide a cracked-mirror image of the life of the mind. And the life of the mind, insofar as it exists on Twitter, is enfeebled. You might even say that Twitter serves as the life support of the mind. “What a waste it is to lose one’s mind, or not to have a mind is being very wasteful . . . how true that is,” former Vice President Dan Quayle told the United Negro College Fund three decades ago, though these incoherent remarks would certainly have more salience if applied to the ad hominem tweets exchanged between two journalists attempting to “do the work” of getting each other fired from the same legacy media publication.

I don’t believe these people, enraptured by the power afforded them through frequent resort to the strength of weakness, are engaged in “grifting” any more than I believe that some Roman senator who elected the life of an ascetic was some kind of secret atheist looking to score social brownie points for his sacrifice. When they call each other “grifters”—an overused term I used to think applied solely to the kind of schemes depicted in Jim Thompson pulp novels—that is vulgar projection on their parts; it is weakness talking to weakness, insecurity at its most profound. They are enraptured by the strength of weakness, but this over-reliance on that form of power has shaken their belief in even the “woke” morality they profess so cheap and hold so dear, and thus they end up pretending to believe in the amorality of everyone else. It is a mug’s game, turtles all the way down.

Not Handling Themselves

The larger problem is that the strength of weakness, regardless of its merits as a tool for advancing up the intellectual or bureaucratic ladder, is profoundly destructive. It turns its adherents into parasites, after a fashion: their weakness draws power from and is only relative to the strength of others, which must, in turn, be leveled. Everything high must be laid low.

The strength of weakness can topple any social structures in its path, which is perfect for austerity-obsessed bureaucrats and politicians looking to outsource the running of the country to Amazon, but it cannot build them anew. Rome preserved and enriched the inheritance of primitive charismatic Christianity, but as a polity, it eventually became Greek in the East and fractured into a thousand pieces in the West. The “boy who cried wolf,” as shop-worn a fable as they get, allowed the boy to draw the villagers’ attention to his phony plight up until the moment he couldn’t, the moment when an actual wolf attacked his flock.

Of course, this state of affairs, like any other, cannot last forever. The country faces a wholesale financial collapse, with foreclosures, evictions, and a wave of small business closures looming as summer turns to fall, events likely to forever alter the American economy. Out of so much uncreative destruction, precipitated by incoherent and frankly schizophrenic policy-making related to pandemics and protests, we may have the opportunity to rebuild the razed country from its deepest foundation.

Such work cannot be done by those who “do the work” of purporting to speak for the weak, yet in actuality cannot afford for the weak to become strong lest they lose their hard-earned roles as their mouthpieces (“Pity would be no more, if we did not make somebody poor,” wrote poet William Blake, “and Mercy no more could be, if all were as happy as we”).

No, this is hard labor for hard people—people who can shoulder the load and carry the weight, who would even the playing field by strengthening the weak instead of weakening the strong. It is all we can do, those of us who believe we are all men and brothers and strong in both body and spirit, because we must.

Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped.” When George Orwell wrote those prophetic words in 1984, he couldn’t have imagined how quickly they’d be implemented in America.

The latest salvo in the Marxist Left’s attempt to destroy our history is a New York Times article titled: “I’m a Direct Descendant of Thomas Jefferson. Take Down His Memorial.” Written by Lucian K. Truscott, the case is completely unoriginal and intellectually dishonest and only serves to rehash the tired “let’s-erase-the-Founders-because-they-owned-slaves” argument.

Though the Left’s war on the Founders is an abomination, it serves as a good example of a classic leftist tactic: the appeal to emotion. 

Truscott’s article brings nothing new to the table, but because it’s written by a descendant of Jefferson’s, the reader is supposed to take a step back and say “Wow, if even a descendant of Jefferson favors destroying his memorial, I guess there’s some point to it.” It offers little in the way of reason.

The hypocritical thing about these appeals to emotion is that the Left only accepts them if they further their own policy goals. Does anyone think for a moment that the New York Times or Washington Post would publish an article titled: “My family was murdered by an illegal alien. Here’s why we should stop illegal immigration”? Maybe ask Kate Steinle’s family about that.

Truscott claims that Jefferson doesn’t need a memorial in D.C. and argues Monticello is enough because its exhibits on slavery reveal him “with his moral failings in full, an imperfect man, a flawed founder.” It’s ironic that Truscott cites Monticello as a good memorial, considering Jefferson’s former estate does the exactly the opposite of what Truscott claims. Monticello’s exhibits don’t simplistically characterize Jefferson as an evil, irredeemable slaveholder—much to CNN’s chagrin, I’m sure— but as a complex individual with both positive and negative traits; a man renowned for his genius, inventiveness, and rhetorical skills.

Despite Truscott’s reprehensible effort to poison his ancestor’s legacy, Thomas Jefferson deserves to be memorialized for his vital service to our nation. He wrote the Declaration of Independence, which in itself would have been enough to earn him a proud and much-deserved place in the history of our nation. But he also wrote the Virginia Statute for Religious Freedom, which guaranteed freedom of religion in Virginia and was the inspiration for the First Amendment (another thing the Left is now busily trying to dismantle). Among his other accomplishments, he established West Point as America’s military academy, doubled the size of our nation with the Louisiana Purchase, fought a successful war with the Barbary Pirates, and—inconveniently for Truscott and other detractors—Jefferson also abolished the slave trade.  

America As Uniquely Evil in the World

The last point is especially vital because Truscott insists that, though Jefferson wrote in the Declaration that “all men are created equal,” he “never did much to make those words come true.” This is a disgusting lie. 

Yes, slavery continued to exist until Abraham Lincoln (who, coincidentally, is also on the Left’s hit list) issued the Emancipation Proclamation and the 13th Amendment was ratified. But the fact that Jefferson ended the importation of slaves to American shores from overseas was a huge gain for the anti-slavery forces and certainly directed momentum toward the eventual eradication of slavery.

In establishing our nation, Jefferson and the other Founders also put slavery on a course to ultimate extinction. They could not have insisted on its abolition when drafting the Constitution, because they knew the slave-holding southern states would never agree, and the nascent nation would have been destroyed before it was even born. Yet they ensured that a future generation would have the ideas it needed to fight to abolish the evil of slavery and—at the cost of over half a million American lives—eventually, it did.

Truscott specifically, and leftists in general, don’t really care about the individual legacies of the Founders. Not even the greatest Founder, George Washington, is exempt from their fury, even though he freed his slaves in his will, guaranteeing that the sick and the old would be taken care of by his estate, and ensuring that orphaned slaves would be taught “reading, writing, and a useful trade.” But instead, Washington is also on the chopping block along with Jefferson, with more and more leftists calling for his blacklisting from our history.

What underpins all of the Left’s historical assumptions is the idea that America is uniquely evil; they ignore the evils perpetrated by almost every other society throughout history. 

They never discuss how the Ottoman Empire abducted Christian children from their crying parents, enslaved them, forcibly converted them to Islam, and then sent them as Janissary troops to massacre their own people. They don’t mention that the Aztecs sacrificed 80,000 human lives to dedicate the Great Temple at Tenochtitlan, killing 14 victims a minute. Neither do we hear much about the Mongols, who murdered millions of innocents in horrific fashion and destroyed flourishing cultures. 

In the Left’s view, none of these crimes against humanity matter—only the West is guilty, with America being the worst among a band of criminal nations. 

This is the great irony in the neo-Marxist worldview; they fully embrace moral relativism but only when it suits them. They insist that there’s no black and white, only gray. They ignore the crimes of liberal icons like Franklin Delano Roosevelt, who placed 120,000 Japanese-Americans in internment camps and openly admired Joseph Stalin, one of the worst butchers in human history. They idolize Che Guevara, ignoring his crimes and his calls to nuke the United States. They praise Communist Cuba, which has a horrendous track record in human rights and subjects its citizens to grinding poverty.

Communist crimes are downplayed, and any atrocities are justified as necessary for “the greater good,” the justification of all blood-soaked psychopaths in every period of history. Is it any surprise that the Left today justifies rioters’ destruction of minority neighborhoods by declaring that “property can be replaced”? It’s all for the greater good! 

The Left’s Power Play

The Left’s war on history was never about righting historical wrongs, otherwise the Marxists wouldn’t currently be destroying statues of Lincoln, the Great Emancipator who ended slavery; of Ulysses Grant, who fought tooth and nail throughout his life against both the Confederacy and the Ku Klux Klan; and, most absurdly, of Frederick Douglass, an ex-slave and one of the most influential abolitionists in our history.

Rewriting history is all about gaining power. If the Founders were evil, then surely the fruits of their labors—the Declaration, the Constitution, freedom of speech, freedom of religion—are all tainted by association. Surely we should give power to our new benevolent dictators to erase everything that came before, and remake our nation in their own image. If this sounds like too much of a slippery slope argument, stop and think: could anyone have imagined only four years ago that increasing numbers of leftists would want to destroy the legacy of George Washington, the father of his country?

The Jefferson Memorial lists several of Jefferson’s quotes on its walls, but the one most appropriate for this moment is the quote directly under the dome: “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” Marxists’ attempt to erase history is an egregious form of tyranny over the mind, and just like Jefferson, we must fight it with all our might. The Left may succeed in tearing down the Memorial, but Jefferson’s words are eternal.  

In mid-March, governors across the country began issuing broad shelter-in-place orders in response to the coronavirus outbreak. The orders contain sweeping restrictions on individuals’ freedom of movement and activity in every sphere of life. They preclude people from going to work, running their businesses, convening to worship, visiting their own properties, taking a drive, attending school, and visiting with family or friends.

The orders are based on the belief that the coronavirus poses a dire threat to the health and safety of the populace. Drawing on the expertise of epidemiologists and other public health officials, as well as the statistical projections of various models on which those officials have relied, governors issued their orders under the belief that “social distancing” will slow the spread of the disease and spare the healthcare system from being overwhelmed.

Most people initially accepted the premise for the orders and complied with them. But as more and more data have become available, it is clear that the models the public health experts relied on for their projections were wrong.

Moreover, as the shelter-in-place orders continue with no end in sight, public-health officials seem to have moved the goalposts to suggest the orders should remain in effect until there are “no new cases, no deaths.”

Meanwhile, the economy is crumbling. As a result, Americans have begun questioning the scope and duration of the shelter-in-place orders, resulting in various protests and rallies.

Beyond Reasonable Necessity

Even as President Trump has created an advisory council and implementation plan in an effort to reopen the country, state governors insist they have plenary authority to make decisions about the scope of their shelter-in-place orders within their states, and continue to extend them, in some cases to extremes that strain credulity.

Police in California arrested a paddle boarder in the Pacific Ocean who was nowhere near any other individual. A man in Philadelphia was forcibly dragged off a bus for not wearing a mask. Numerous states have banned or restricted fishing. In San Diego police cited people for watching the sunset from inside their cars. In Colorado a man was arrested for playing t-ball alone in a field with his daughter. In Michigan, the governor’s order precludes the sale of seeds and gardening supplies.

Police in some locales are directly interfering with people’s exercise of enumerated First Amendment rights. In Kentucky people were issued “quarantine notices” and their license plate numbers were recorded after they drove to a parking lot to attend an Easter service from inside their cars. In North Carolina police arrested a woman for assembling to protest the shelter-in-place order. Apparently forgetting about those pesky fundamental rights, the police then tweeted, “Protesting is not an essential activity.”

These actions are well beyond what is reasonably necessary to address the risks of the virus. But what is the source of authority for state shelter-in-place orders, and what are the limits on that authority? People increasingly are raising these questions, and now would seem an opportune time to review the long history of legal rulings that address them.

The U.S. Supreme Court held in Jacobson v. Commonwealth of Massachusetts that the police power of a state embraces “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” In Jacobson, the court upheld the conviction of a man who refused to comply with the state’s mandatory smallpox vaccination. The court concluded that the state retained control under the 10th Amendment of “all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states.”

However, Jacobson recognized constitutional limits on a state’s right to enact health and safety regulations, noting,

A local enactment or regulation, even if based on the acknowledged police powers 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, or with any right which that instrument gives or secures.

Jacobson affirmed that even in the case of health laws designed to protect the public from communicable disease, a state may not interfere beyond what is “absolutely necessary for its self-protection.”

Thus, as Jacobson and other cases have recognized, the Constitution provides a backstop, such that the state’s authority ends where the Constitution’s authority begins. Health and safety laws are no exception.

Limits on State Police Powers

One constitutional limit to state authority over health and safety laws is the Commerce Clause contained in Article I, Section 8, which authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

In an 1824 case called Gibbons v. Ogden, the Supreme Court affirmed that the Constitution confers upon Congress the exclusive power to regulate interstate commerce. Even if a state law is designed to affect only economic activity within its state, Gibbons concluded that the Commerce Clause gives Congress authority where the activity regulated has some commercial connection with another state. Notably, the Court in Gibbons noted that quarantine laws are not merely health or police laws, but “they are also laws of commerce.”

Another limit to a state’s ability to enact health and safety regulations is found where a law infringes upon fundamental rights guaranteed under the Constitution. The 14th Amendment guarantees no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This protection ensures substantive liberty rights, not just process.

The most familiar of the liberties protected by the 14th Amendment are in the Bill of Rights. They include, of course, the First Amendment rights to free exercise of religion, free speech, and the right peaceably to assemble; they also include the Second Amendment right to keep and bear arms. In addition, the Supreme Court has held that the liberty interests secured by the Constitution exceed these enumerated rights and includes “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

Where a state imposes a substantial burden on a fundamental right, the state has the burden of showing that it has a compelling state interest and that the state is taking the least restrictive means toward achieving that compelling interest. This test, known as the “strict scrutiny” standard, has its roots in a case called Skinner v. State of Okl. ex rel. Williamson (1942). In that case, the Supreme Court invalidated a broad Oklahoma law that required the forced sterilization of people with multiple convictions for crimes of “moral turpitude.” The strict scrutiny test ensures that a state’s power to enact laws in the name of health and safety will not become an unreasonable pretext for overriding liberty interests secured under the Constitution.

Various state courts have explicitly recognized that states’ authority to protect against epidemic does not justify such arbitrary and unreasonable state action.

A California case (In re Shepard) from 1924 is instructive. In that case, a woman was arrested on a prostitution complaint and was ordered isolated and quarantined based on the suspicion that she was “infected with a contagious, infectious, and communicable disease.” In vacating the quarantine order the court held that the constitutional guarantees of the right to personal liberty and personal security override “mere suspicion” that someone must be isolated due to disease.

How Many Liberties Are We Willing to Cede?

Americans should be questioning whether the coronavirus presents an “immediate, imminent, and impending” threat that justifies the suspension of civil liberties and the decimation of the national economy. Whatever benefit of the doubt states had a month ago has dissipated as we have learned that the data and models the states relied on as authority for their restrictions were wrong. The states’ arguments of a compelling interest were based on dire predictions of 2 million dead Americans. Those models were wrong, and Americans should scrutinize just how “compelling” the states’ interests remain. And when governors are banning people from buying gardening supplies or citing them for watching a sunset, Americans should scrutinize whether states are employing the least restrictive means.

Over the past several months, Americans have witnessed—and in many cases accepted—a not-isolated series of infringements on their civil liberties. At the same time we continue to learn of civil rights abuses by the FBI through the use of federal court orders put in place under the USA Patriot Act after the September 11, 2001 terrorist attacks on our nation. While two decades apart, the situations are not dissimilar and are equally troubling.

As a nation we should understand that fear has a way of driving us to do things we later will regret—things like blatantly trampling on people’s constitutional rights, or, worse, simply surrendering those rights.

Americans should not be complacent, nor should they allow panic or fear to lead them to acquiesce to unreasonable restrictions on constitutionally guaranteed liberties. Instead, Americans must insist that states display a compelling interest and that the restrictions they impose are the least restrictive means necessary to address that interest. The Constitution requires nothing less.