Judge Andrew Napolitano: The Government’s Emergency Powers Myth

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” — Ex Parte Milligan, Supreme Court of the United States, 1866.

Last week, the media in New Jersey began to ask Gov. Phil Murphy when he would surrender his emergency powers. He claimed emergency powers in March 2020, and he also claimed that those powers are not limited by the Constitution when he said on Fox that the Bill of Rights is above his pay grade. His reply to the media inquiries was that he will surrender them when he surrenders them!

I am using the example of Murphy in order to address the concept of emergency powers, but there is no hyperbole here. Murphy quite literally issued executive orders barring folks from doing what the Constitution guarantees them the right to do, and he imposed criminal penalties for violating his orders, and he had folks who defied him arrested and prosecuted. Stated differently, he assumed the powers of the state legislature — which is to write the laws — and he violated his oath to uphold the Constitution.

He claimed that somehow he can interfere with the exercise of basic human freedoms — like going to church, going to work, shopping for food, operating a business, assembling and traveling — because he declared a state of emergency.

If the government declares an emergency, can it thereby acquire the lawful power to interfere with constitutionally guaranteed freedoms? In a word: No.

Here is the backstory.

When the states formed the federal government in 1789, they did so pursuant to the Constitution. The Constitution was written to establish and to limit the federal government. In 1791, just two years later, the Constitution was amended to add the Bill of Rights. The original understanding of the Bill of Rights was that it restrained only the federal government by articulating negative rights.

A negative right restrains the government from interfering with the exercise of a preexisting right. Thus, the First Amendment does not grant the freedom of speech — because it comes from our humanity — but it does prohibit Congress from infringing upon it.

After the War Between the States, Congress sent the 14th Amendment to the states for ratification. Its history is tortuous, and in part repellant, but it was ratified, and it is the law of the land. It has been interpreted and applied by the courts as imposing the Bill of Rights upon the states. Thus, any right expressly or arguably protected from federal interference by the Bill of Rights is protected from state interference as well.

The Ninth Amendment — which today restrains the feds and the states — is the work of James Madison’s genius. Madison, who chaired the House of Representatives committee that wrote the Bill of Rights, wrestled along with his colleagues about the best way to protect unenumerated rights.

The big-government crowd in Congress did not want any enumerated rights to be expressed. They argued that by listing a few, the unlisted rights would be subject to government assault.

The small-government crowd argued that by listing no rights as immune from government interference, the Constitution would invite the government to assault whatever rights it wished.

Madison’s solution to all this was to add a Bill of Rights and include the Ninth Amendment. That amendment recognizes that we all have pre-political, fundamental, natural rights — too numerous to enumerate — and prohibits all government from disparaging them.

During the War Between the States, Abraham Lincoln did more than disparage them. He ordered the military to arrest newspaper editors and even public officials in the North and confine them without trial because he disapproved of their criticism of him. One of them, Lambdin P. Milligan, sued for his freedom, and he won.

In a unanimous decision, cited hundreds of times, the Supreme Court rejected the concept that “emergency” somehow creates or increases government power. The court condemned “emergency” as a doctrine the fruits of which none is “more pernicious.” This condemnation is still the law of the land today, and it applies to the states as well as to the feds.

Thus, no matter the exigency — war, floods, pandemic, fear, myth — individual natural rights, protected from government interference by the Ninth Amendment, trump the unconstitutional words of government officials and invalidate their efforts to enforce compliance. Murphy’s orders contain empty words because they do not have the force of law since they were not legislatively created and they directly contradict the Constitution and the Supreme Court’s most definitive interpretations of it.

When Murphy became the governor of New Jersey, he took an oath to enforce the Constitution. Whatever personal ignorance or mental reservations he may have had, the Constitution is the supreme law of the land, and every public official, federal and state, is bound by it.

If government officials could declare an emergency whenever they wished and thereby be relieved of the obligation to defend the Constitution — and the rights it guarantees — then no liberty is safe.

Because our rights are natural and individual and because we did not all consent to their suspension, no government may morally or constitutionally suspend them, and we must resist all efforts to do so. Of course, there is a dark side to this. The government that has destroyed liberty and property has also immunized itself from financial liability for the consequences of those destructions.

Yet, as Thomas Jefferson wrote in the Declaration of Independence, whenever any government destroys liberty and property, it is the right of the people to alter or abolish it.

PHOTO: Phil Murphy for Governor. Photo by Phil Murphy. Attribution 2.0 Generic (CC BY 2.0). 

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network, and lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He also writes a week column, nationally syndicated by Creators.