Edwin Vieira, JD, Ph.D
The “covid-19” panic has emphasized in an unique manner the necessity for Americans to ask themselves the perennially relevant question: “Quis custodiet ipsos custodes?”—“Who is to watch the watchmen?”—or, more colloquially descriptive of this country’s present dilemma, “Who is to govern the governors?”
Egged on by the “mainstream” media, elected and appointed public officials and public-health bureaucrats at every level of the federal system (especially certain high-profile Governors in the deepest “blue” of “blue” States) have literally run amok. For example—
On the medical front, they have misjudged the extent of the pandemic by reliance on faulty computer “models” and “projections”, rather than evidence drawn from the real world. They have exaggerated the lethality of the virus, encouraging and facilitating the “adjustment” (or perhaps “falsification” is the more accurate verb) of records so as to inflate the number of deaths attributed to “covid-19”. They have overestimated the need for hospital facilities to treat patients apparently suffering from “covid-19”, while delaying or even denying treatment to patients definitely suffering from other serious conditions. They have denied effective treatments to, or have imposed the wrong treatments on, people with actual or assumed “covid-19” infections, leading to unnecessary suffering and needless deaths. And in concert with their shills, megaphones, and apologists in the “mainstream” media, they have defamed, denounced, and censored medical doctors and scientists in related disciplines who have dared to disagree with their party line on “covid-19”.
On the social front, they have promulgated “shelter-in-place” orders to confine Americans in their homes for extended periods of time, oblivious to the adverse physical and psychological effects such “house arrests” would have, have had, and will continue to have on countless numbers of those so incarcerated—especially children, the elderly, and those Americans dashed against the rocks of depression and despair by the sudden loss of their businesses, jobs, and other sources of income. In addition, under color of highly questionable notions passed off as “settled science” they have required Americans to go masked in public, and to distance themselves physically one from another, thereby unquestionably imposing anti-social isolation on all, and inciting anti-social suspicion and hostility against those who rightly question these dictates. Beyond all this, they have announced their intentions to deploy multiple thousands of “tracers” to ferret out alleged carriers of “covid-19” and discover whomever they may have contacted, rendering potentially everyone’s social interactions subject to the official suspicion, scrutiny, exposure, and control of a full-blown police state.
On the economic front, they have shut down, locked down, worn down, and brought down wide swaths of the middle-class free market throughout this country, causing possibly irreparable damage on a scale certainly unimaginable hitherto. When their States’ tax-receipts contract as a result of this coerced cessation of commercial activity, they will importune Congress to furnish them with multi-billion-dollar “bailouts” courtesy of the Federal Reserve System’s engine of hyperinflation; or crush their citizens under the unbearable weight of new taxes, fees, and other levies; or (most likely) both. And,
On the political front, they have asserted, assumed, and arrogated to themselves unprecedented, draconian, even dictatorial—and often distinctly delusional—“emergency powers”. “Emergency powers” which supposedly override every provision of the Constitution of the United States, as well as of the constitutions of the several States, except (of course) for those provisions under color of which these officials and bureaucrats claim to hold their positions—and, most ominously, “emergency powers” which they clearly intend never, ever to give up.
Through these actions, they have exposed Americans not merely to Orwell’s literary picture of dystopia—that is, “a boot stamping on a human face forever”—but to the full political, economic, and social reality of a police state beyond even Orwell’s imagination. This they describe, with gleeful approval, as “the new normal”. Yet a striking historical parallel to today’s events exists in the situation which confronted Colonial Patriots in 1775, after the British Parliament had enacted the three so-called Coercive Acts (which the Colonists rightfully condemned under the style of “the Intolerable Acts”):
(i) The Boston Port Act closed the major seaport and trading-center in New England, inflicting intense economic hardship on common people throughout the region. Today, lockdowns in State after State have devastated the economy across this country to a degree which makes the Colonists’ plight pale in comparison.
(ii) The Government of Massachusetts Act wrenched political power from the Colonists’ hands, concentrating it in the grip of General Thomas Gage, King George III’s military Governor of Massachusetts. Today, various American Governors’ “executive orders” are doing precisely the same thing in principle, but with far greater sweep and effect in practice than anything General Gage actually attempted or ever contemplated. And,
(iii) The Administration of Justice Act licensed public officials loyal to the King to employ whatever measures of force they considered necessary to put down the Colonists’ resistance to Parliament’s decrees. Today, in addition to witnessing crackdowns on small businesses with the temerity to ignore the lockdowns imposed in various States, Americans have been informed that the Army will soon participate as a “partner” with the Department of Health and Human Services in “Operation Warp Speed”, which aims at vaccinating as many Americans as possible as soon as possible against “covid-19”—presumably, one must imagine, with whatever level of coercion the brass hats might consider necessary to that end.
Howsoever justified the Colonists’ ire at the Coercive Acts may have been, though, at least those measures had been enacted in due course of law by the British Parliament, which did exercise legislative jurisdiction over the Colonies. Today, “the new normal” of police-state oppression imposed under color of the “covid-19” panic is the product—not of statutes enacted by Congress or any State’s legislature—but of “executive orders” concocted by Governors purporting to wield more arbitrary power than even King George III imagined himself to possess.
In 1774 and 1775, the Coercive Acts followed a twisted trail from London, to Boston, to a fiery dénouement at Lexington and Concord, when the Embattled Farmers realized that they had suffered more than “enough” to tolerate any more. “Enough” had become “too much”. Today, that historical hindsight provides insight and foresight as to what might very well transpire if large numbers of Americans even passively refused to coöperate with “the new normal”, let alone actively resisted its demands most threatening to their welfare, such as mandatory injections of experimental vaccines the safety and efficacy of which cannot be rigorously verified.
Nonetheless, as the Declaration of Independence cautions, “[p]rudence, indeed, will dictate that Governments long established should not be changed for light and transient causes”. So, before “enough” becomes “too much” and things get out of hand as things tend to do, Americans need to demand unequivocal explanations from public officials and bureaucrats as to exactly why—and under what legitimate constitutional authority—they have implemented the policies which have so devastated this country. To wit,
(i) Americans need to know whether this mess is the result of, for example, officials’ and bureaucrats’ panic-driven overreactions to a situation they did not understand; their utter incompetence; their errors of judgment; their stubborn refusals to admit their inabilities and mistakes when admissions could have mitigated the damage their original errors had caused; their improper motives (ultimately implicating one sort of conspiracy or another); or permutations and combinations of the above.
(ii) Americans need to know what these public officials’ “defenses” to political and legal liability may be—for instance, “I made a mistake”; “I did the best I could”; “No one could have done more or better than I did”; “I was following orders from my superiors”; “I was taking advice from people with more knowledge and experience than I had”; “I was implementing a plan which was good for the people, but which the people could not understand then and cannot understand now”; and (worst of all) “Whatever my demerits have been, I enjoy complete ‘immunity’ from civil lawsuits and criminal prosecution”.
(iii) Where various Governors’ “executive orders” are concerned, Americans need to know whether the Governors claim that these directives are justified under specific statutes enacted by their States’ legislatures. If so, are those statutes valid under some provisions of those States’ constitutions? If so, are those statutes or provisions valid under the Constitution of the United States? And if the answer to any of these questions is “no”, what penalties should be imposed upon the Governors and their henchmen for the misdeeds they have committed under color of these unlawful “executive orders”?
As things are under present conditions, none of these questions will be answered by the Governors, by public-health bureaucrats, by the States’ legislatures, by Congress, and perhaps even by the President of the United States. And although more accessible in principle by We the People than any of the latter institutions of government, in practice courts throughout the federal system,
with vanishingly few exceptions, can be expected to do little to nothing in a timely and effective fashion to ameliorate or rectify the mess which reckless “executive orders” have created. Indeed, the atmosphere in that domain has become rather ominous with the publication of Chief Justice Roberts’ concurring opinion in the Supreme Court’s recent decision in South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (29 May 2020). It is apparent that those ensconced in the highest echelons of the political class will never accept personal responsibility, and will always evade personal accountability, no matter the harms they may inflict upon Americans under color of responding to the “covid-19” panic which they themselves incited and exacerbated. So what can the Deplorables do, except to turn to other institutions?
At every level of the federal system, the Deplorables need to see to the appointment of Special Commissions of Inquiry which, through wide-ranging investigations, can address and answer all aspects of the question “Who is to govern the governors?” with respect not only to what has transpired during the current “covid-19” panic, but also to how public officials will be allowed to respond to any other purported “public-health emergencies” of this kind which might arise in the future.
Most importantly, these Special Commissions must, in both fact and law, actually be special,
in that they must be conducted in a different manner for a different purpose—namely, quickly and thoroughly to expose the truth rather than cover it up—and therefore must be composed of different people who command different authority from other investigatory commissions which have been set up following certain horrendous events of recent memory, and tasked with painting entirely false pictures of what had actually happened.
The most infamous of these, of course, was the Warren Commission, which whitewashed the murder of President Kennedy. To be sure, its Report was uniquely useful, because it revealed to Americans the existence of a miraculous Italian Carcano rifle of World War II vintage, which apparently could fire bullets that, although missing the target from behind, could turn around in flight and strike the target in front, quite contrary to the laws of exterior ballistics. This remarkable discovery aside, the Warren Commission held no one accountable for the crime except the self-described “patsy”, Lee Harvey Oswald, who, having himself been conveniently silenced through assassination, could thereafter always be described as “acting alone”, to the extent that many wags now treat those two words as part of his name. And it singled out for blame not a single high-ranking figure in public office, civilian or military, who had failed to detect the plot, let alone to take a single step to thwart it. Moreover, because JFK’s murder involved only one victim along with only one perpetrator, both of them deceased, somnolent Americans from the 1960s to today have disregarded it as a precedent which poses no threat to them.
More recently, the 9/11 Commission Report on the destruction of the World Trade Center’s Twin Towers and damage to the Pentagon, along with the ancillary NIST report on the demise of WTC Building Number 7, rationalized “the global war on terror”. To be sure, these Reports were useful, because they informed Americans that two ultra-modern, multi-story skyscrapers constructed to the highest architectural standards from ton upon ton of steel and concrete could suddenly collapse in their own footprints after each was hit by an aluminum airliner, and a smaller but no less well-designed office building could collapse in its own footprint even without being hit by an airplane of any sort, all quite contrary to the basic laws of physics. These astounding discoveries aside, the 9/11 Commission and NIST Reports propped up the tall tale that a gaggle of scruffy Middle-Eastern “terrorists”, all of whom had conveniently immolated themselves in their kamikaze attacks on the Twin Towers and the Pentagon, not only had outwitted every one of the United States’ national-security forces and intelligence agencies, but also had demonstrated the ability to fly jumbo jets in maneuvers beyond the competence of the world’s best pilots. And those Reports, too, managed to identify not one high-ranking figure in public office, civilian or military, even whose simple negligence (let alone whose criminal culpability) had contributed to the disaster. Moreover, notwithstanding that the attacks on the Twin Towers and the Pentagon caused the deaths of thousands, since then insouciant Americans have largely disregarded the possibility of future threats of that kind. To most people living today, those attacks were unique events in the distant past; the victims and the perpetrators are all dead and largely forgotten; and that is that.
Unfortunately, an official whitewashing of the “covid-19” panic akin to the fictions concocted by the Warren and 9/11 Commissions would arguably be easier to perpetrate today than ever before, and with far worse long-term effects.
First, in stark contrast to their doubts about JFK’s assassination and the 9/11 Event, many Americans do not believe that they can afford to be skeptical about either the lethality of “covid-19” or the necessity of the supposed preventive measures which Governors and public-health officials have imposed upon them.
Second, although many Americans are sufficiently familiar with how a bullet behaves when fired from a high-powered rifle to dismiss as fiction the Warren Commission Report, and with the significance of an office building’s collapse at “free-fall speed” to describe as fantasies the 9/11 Commission and NIST Reports, few could critically analyze the report of a “covid-19” commission which “scientific” cover-up artists larded with the impenetrable mumbo jumbo of virology, epidemiology, molecular biology, and so on.
Third, obvious to everyone is that rogue public officials are using the “covid-19” panic as their opportunity and excuse to strip Americans of fundamental constitutional freedoms. Nonetheless, a “covid-19” commission backed up by rogue judges could easily fabricate and pass off facile legal apologies such as Chief Justice Roberts laid out in his concurring opinion in South Bay United Pentecostal Church v. Newsom:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where these broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. [590 U.S. at ___ .]
One wonders whether this passage was penned by someone—perhaps some law clerk recently brainwashed at an élitist law school—with little to no sound training in constitutional law.
It may be that “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement”. But not “subject to reasonable disagreement” are the constitutional rights of tens of millions of Americans suffering from draconian “restrictions on [their] particular social activities” which amount to “house arrest” without even probable cause. Axiomatic is that
[i]n cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. The case of confiscation [of property] is illustrative, the ultimate conclusion almost invariably depending upon the decisions of questions of fact.
Crowell v. Benson, 285 U.S. 22, 60 (1932). Accord, Ohio Valley Water Company v. Ben Avon Borough, 253 U.S. 287, 289 (1920); Saint Joseph Stock Yards Company v. United States, 298 U.S. 38, 51-52 (1936). And constitutional rights pertaining to “life” and “liberty”, of course, are no less—arguably are much more—important than those pertaining to “property”.
Why is it that “[w]hen [public] officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad’”? On the one hand, if those “medical and scientific uncertainties” cannot be resolved at all (somehow being impenetrable mysteries), then how could the courts ever determine that “these broad limits [on public officials’ powers] have been exceeded” or not? Would not such a situation exclude “judicial review” altogether, and render “medical and scientific uncertainties”—that is, professed ignorance—blunt weapons with which power-hungry officials could always bludgeon the Constitution into submission? On the other hand, why cannot courts resolve those “medical and scientific uncertainties” which are resolvable just as they do all other factual conundra presented to them, by the production of evidence and the exercise of discursive reasoning?
Finally, why should public officials—whose motives, even more than their knowledge, should always be suspect—“not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people”? Leave aside the obvious non sequitur that public officials are “accountable to the people” when they can regulate, restrict, and curtail entirely any and every “social activit[y]”; when their dictates cannot be effectively challenged in the courts; and when the people must wait sheepishly for the next election possibly to bring them relief, while they suffer irreparable damage in the interim. In a situation of this sort, are not the courts bound in legal duty to determine whether “politically accountable officials” actually have the necessary “background, competence, and expertise”, and are using their supposed education and experience properly to make the correct decisions? After all, “second guessing” implies disagreeing with someone who is himself of sufficient competence to come to a reasoned conclusion and of sufficient integrity make an honest decision. Whether some public official satisfies those criteria is always the question to be answered, never the answer to be assumed.
Fourth, the assassination of JFK and the 9/11 Event were each of them unique. They will never happen again. But the “covid-19” panic can be run over and over, whenever power-hungry public officials and public-health bureaucrats need to invent a new “pandemic” horror-story as an excuse for usurpation and tyranny. The very same script, even many of the selfsame crisis-actors in official positions, will suffice—with just a different disease, or simply a different “strain” of “covid-19”, as the monster in the drama.
For these reasons, We the People cannot allow public officials to whitewash the “covid-19” panic in the manner employed by earlier official investigatory commissions. This will require, though, that “the usual suspects” not be put in charge of any investigation. We the People themselves must investigate what happened, why it happened, and especially through whose influence and at whose instigation it happened. We the People themselves must set up Special Commissions of Inquiry in each of the several States, along with one for the United States as a whole. These Special Commissions must be independent of the present-day political establishment in terms of both their mandates and their personnel. They must wield governmental authority fully adequate to compel the attendance of witnesses who have held or hold public office and the production of documents and other evidence in public records. And their findings must be used, not only to educate the American people, but also to compel enforcement of the laws of the States and the United States against whichever wrongdoers may be exposed.
What governmental institutions, though, can be expected, let alone trusted, to establish these Special Commissions; to recruit all of the patriotic experts in various disciplines, all of the patriotic investigators, and all of the patriotic lawyers needed to perform the Commissions’ work; to assist in the widest-possible dissemination of the Commissions’ findings in the face of the “mainstream” media’s hostile propaganda; and especially to put into effect the Commissions’ recommendations with respect to enforcement of the laws against high mucky-mucks in the political establishment whom the Commissions may charge with wrongdoing? Not a single one, except the institutions which are not now involved in the thick of the “covid-19” monkey-business and thereby compromised—the institutions composed of We the People themselves who have the most vital personal interests in exposing the truth—the only institutions to which the Constitution explicitly assigns the authority and responsibility “to execute the Laws of the Union” against anyone and everyone who violates those “Laws”, without exception. That is, the Special Commissions have to be established and run by the Militia.
While the “covid-19” iron is still hot, President Trump could set up these Commissions in each State right now, under (say) the authority of Section 253 of Title 10 of the United States Code. If he did, he would bask in tidal waves of approval, applause, and active support from the Deplorables for doing so (and, one might surmise, be assured of re-election this coming November). As of right now, though, with respect to “covid-19” Mr. Trump seems akin to a tennis ball, being hit back and forth across the net by players drawn from different departments of the Deep State. With a stroke of a racket on one side of the net he flies off on a trajectory marginally favorable to the interests of the Deplorables, whereas the stroke of a racket on the other side impels him on a trajectory distinctly unfavorable to their interests. And being only a ball in someone else’s play, all his bounces, to and fro, remain squarely within the Deep State’s court.
Without President Trump’s leadership, and with various States’ Governors being the sources of the problem, We the People have to undertake the task under the auspices and with the protection of Local governments, in many places the only governmental institutions which enjoy any constitutional credence. The model for action should be the “Second Amendment Sanctuary” movement which sprang from the grass roots in Virginia in late 2019 and early 2020. That movement organized the Deplorables for a negative outcome—We the People’s and their Local Governments’ refusals to comply with supposed statutes which violate the Second Amendment. Now the People must organize for a positive outcome. They and their Local governments must band together to set up Special Commissions of Inquiry drawn from patriotic Americans within the so-called “unorganized militia” recognized by various statutes in the several States. Each State’s Commission will derive its constitutional existence and authority from Local public officials’ employment of whatever powers they may exercise for that purpose, in obedience to their oaths of office. But this action must be taken soon—before his faithless and feckless advisors trick President Trump into actually asserting some “emergency power” even more phantasmagorical and more likely to engender disastrous consequences than any invoked heretofore during the “covid-19” panic.
Few readers of this commentary have not watched the press conference held on 15 May 2020 in the White House Rose Garden, in which President Trump waxed triumphant over “Operation Warp Speed”.
The plan is to deploy the Military in order, by early 2021, to be able to inject huge numbers of Americans with one or another admittedly experimental “covid-19” vaccine to be produced (in Mr. Trump’s own words) with “record, record, record speed”. Also, reason exists to believe that these vaccinations will be mandatory for every member of the population.
Obviously, this plan is extraordinarily unrealistic, if adequate testing for safety and efficacy is to precede actual injection of some novel vaccine into the bodies of tens of millions of ignorant recipients. (On questions of responses to “covid-19” in general and vaccinations in particular, See Robert F. Kennedy, Jr.’s web site, <https://childrenshealthdefense.org>.)
Worse yet, “Operation Warp Speed” is certainly irresponsible, and more than likely illegal, because it would amount to experimentation on human beings, doubtlessly without their informed consent—that is, consent neither coerced nor fraudulently obtained, but instead based upon full disclosure of the risks involved and of each individual’s right to refuse to participate in the program. (On the impermissibility of medical experiments performed on individuals without their informed consent, see, e.g., 12 Code of Federal Regulations §§ 50.1, 50.3, 50.20, 50.25, and 50.27.)
As an Army General told the reporters gathered in the Rose Garden, “Operation Warp Speed” is planned as a coöperative effort between the Department of Health and Human Services and the Department of Defense. According to him, the “mission is about defeating the enemy”. If that would not make any patriot’s blood run cold, what could? For it implicitly poses the question: “Who is really ‘the enemy’ here—a virus, or the American people?” That is a valid inquiry, because, as a general proposition of international law established by the United States and other nations in the aftermath of World War II, and still recognized by the United States, “medical” experiments conducted by rogue public officials on unwilling human beings are condemnable as crimes against humanity, for which no defense is allowable.
More specifically, employment of the Military to enforce such experiments on the civilian population within the United States through what amounts to “martial law” plainly violates not only the Constitution, but also the Declaration of Independence, which indicted King George III because (among other of his derelictions) “He has affected to render the Military independent of and superior to the Civil power”. As a practical matter, mandatory vaccinations of ordinary Americans effected through military coercion will, in the course of such an operation, necessarily “render the Military independent of and superior to the Civil power”, because no “Civil power” at any level of the federal system will be able in fact (whatever its authority in legal theory) to interpose itself between “the Military” and ordinary citizens dependent upon that “Civil power” for protection.
To be sure, apologists for the “vaccine lobby” contend that all constitutional questions relating to compulsory vaccinations have been decided in favor of compulsion. In support of this fantastic assertion they usually invoke the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), which Chief Justice Roberts cited with approval in his concurring opinion in South Bay United Pentecostal Church v. Newsom (quoted above). One who critically parses the Court’s opinion in Jacobson, though, will realize that reliance on it would be ill-advised. With respect even to the arguments against compulsory vaccinations which it actually considered and rejected (on insufficient grounds), it holds about as much water as a sieve. And as to other arguments never presented to the Court, especially those which could be predicated on actual scientific research conducted since 1905, the opinion provides nothing but judicial silence. Detailed destructive analysis of the demerits of Jacobson must be left to another commentary, though.
In sum, the “covid-19” panic shows that the question is not: “When are Americans going to say ‘enough is enough’?”—for they seem to be saying that already, a few at a time. The question is: “When are Americans going to say ‘enough is too much to take anymore’?”—and then do something constitutionally effective about it. That question needs to be answered. Time is running out.
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