Perhaps the biggest question that needs to be asked during this time of crisis is can the government restrict our movements as they have? Judge Andrew Napolitano, a former judge of the Superior Court of New Jersey who’s written nine books on the U.S. Constitution says “freedom is the default position.” The rights that we have come not from the State but are rooted in our humanity. We know they come from God, but that’s just the point.
Non-Aggression Principle
Imbedded in the US Constitution is what philosophers call the non-aggression principle. “All aggression against persons and property even by government is immoral.” Individuals have the freedom to do as they please as long as they don’t violate the God-given rights of others. So, the question remains, can the government “confine persons against their will in order to protect public health?”
Locking People Up & Due Process
Let’s think biblically as we wade into an answer. Can we lock someone up for committing a criminal act like theft, murder, or enslaving others? Answer? Yes. Can we lock someone up who has not committed a criminal act? Answer? No. Can we lock someone up who looks like they might commit a criminal act at some point in the future? No, we can’t do that. Can we lock someone up for being a racist? As reprehensible as racism is, we can’t do that. What if someone is hurling empty threats and insults at me as I go on my merry way? Can we imprison him? It’s no violation of my rights if someone hates me, insults me, or even hurls empty threats at me. We can’t put him in jail. But what if someone is pointing a loaded gun in my face, says he’s going to kill me, pulls the trigger, or makes an aggressive move? Can I or someone else stop him? Do I or someone else have the right to use deadly force in that instance as self-defense or in defense of others? The answer to each of those question is yes. Moreover, if the individual were stopped before he got a shot off, or if his shot missed, he would be imprisoned for attempted murder. The difference between him and the guy hurling empty threats is just that: empty threats are not criminal. But when one violates the liberty of another or is imminently about to do so, he is guilty of criminal activity and subject to imprisonment after due process and conviction at a criminal trial.
Forced Quarantine & Due Process
With those biblical principles in mind, hear Napolitano on whether the government then may quarantine someone for reasons of public safety. “The short answer is yes, but the Constitution requires procedural due process. That means a trial for every person confined. Thus, a government-ordered quarantine of all persons in a city block or a postal ZIP code or a telephone area code would be an egregious violation of due process, both substantive and procedural. Substantively, no government in America has the lawful power to curtail natural rights by decree.”
Why due process? To determine if one is an actual threat. Napolitano puts it this way: “Procedurally, notwithstanding the fear of disease contagion, the states and feds may only quarantine those who are actively contagious and will infect others imminently. And it must present evidence of both at a trial at which it bears the burden of proof. While the non-aggression principle permits offensive aggression in self-defense when an attack is imminent and certain, that is a high standard for the government to meet, as it should be. Freedom — even the freedom of a madman or a dangerously sick and contagious person — is the default position. Infringing upon it without procedural due process is always constitutionally impermissible.”
Inconvenience of God-given Rights
In another piece, Napolitano points out that the Supreme Court unanimously rebuked President Lincoln during the Civil War when he imprisoned persons who challenged a number of decisions he made. He claimed he was acting for the good of the citizenry – for public safety. The point they made was that whether in war or in the midst of a global pandemic, the Constitution protects our God-given rights “and its provisions are to be upheld when they pinch as well as whey they comfort.”
Submission to Totalitarians
Many governors during this crisis are acting in a totalitarian way and in so doing are violating the rights of tens of millions of persons. They have no right to do so constitutionally nor do they have the right to do so biblically. Would Paul tell the Roman church they had to submit to Nero if he wanted to enslave them or kill them? Jesus said when they persecute you in one city flee to another (Matt. 10:23). Paul said if you’re converted while a slave, don’t worry about it. But, if you can be free, use it (1 Cor. 7:21). The point is that Christians do submit to government for God’s glory and their witness. They are not troublemakers but good citizens. However, our submission is not absolute. The Hebrew midwives defied the decree of Pharaoh (Exodus 1). Daniel openly disobeyed the decree of King Darius (Daniel 6). The apostles defied civil authorities and never ceased to preach the gospel (Acts 4).
Part of our problem is a surface interpretation of Romans 13. Many Christians believe God gave government for the public, civic good, and it implements God’s righteous decrees. Yet, Paul rebukes the Corinthian church for taking their lawsuits before the unrighteous civil authorities. How dare you do such a thing he says (1 Cor. 6:1f). He also says that Jesus must reign until He has put all enemies under His feet. Those enemies include all earthly rulers (1 Cor. 15:24f). Psalm 2 says the rulers of the earth are against Christ. Daniel says that the kingdom of God will smash all other earthly kingdoms to pieces in the end (Daniel 2). The point is that earthly governments are not God’s representatives. They are his servants just like Satan is. And, they have a measure of authority, but they do not have the right to violate the rights of others. Authority and rights are two different things.
Again, Christians may submit to imprisonment or martyrdom for the sake of the gospel. But they may also flee. Jesus told Christians to flee when they saw Roman imperial troops surrounding their city (Matthew 24). Paul tells slaves to submit to their masters. Do they have authority? Answer, yes. Do they have a right to enslave others? Answer? No. Husbands have authority, but they don’t have the right to violate the rights of their wives. These principles are basic. Government has authority, but it doesn’t have the right to violate our rights. From Napolitano again: “The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. And the Due Process Clause of the Fourteenth Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault. The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owner’s chosen lawful use of his property. . . Add to all this, the protection in the First Amendment of the right to associate and the judicially recognized right to travel — both of which are natural rights — and it is clear that these nanny state rules are unconstitutional, unlawful and unworthy of respect or compliance.”
Trading Freedom for Safety
Why is this happening? Because people are always willing to trade freedom for safety. Benjamin Franklin said people who do such are worthy or neither. A lot of Christians are clamoring for the government to do what they’re doing in the name of public safety. With all due respect, you have the right to sacrifice your freedom, but you don’t have the right to sacrifice mine.
Anthony Fauci is talking about round two of this next year. Are we going to tolerate shutting the country down on a regular basis? We need Christian leadership here. There’s a difference between being a good citizen and allowing the government to take away the freedoms of everyone. That’s not being a good citizen or loving your neighbor. Christians leaders above all should be leading here. I’m not calling for revolt. But I am calling for the church to speak with clarity and boldness; to speak up for the least of these; to bring a biblical worldview to the public square on this issue; to take a seat at the table; and to preach the gospel and it’s implications for civil government and society in this hour of need. Too much is a stake to remain silent, and way too much is at stake if we roll over and shill for the US government, something the Scripture calls a rival kingdom to the kingdom of God.
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