Kevin DeYoung once wrote, “The only thing more difficult than finding the truth is not losing it.” While he was speaking of theological truths, his statement is universal in its application, and it relates to a letter signed last week by several of our state Senators urging us to get the Covid “jab” and to similar overtures by other government leaders. Now is a good time to make sure we have not lost a truth about civil government and our Constitution that was realized after centuries of struggle.
 
Being lost from our public consciences is the understanding that civil government owes certain clear, identifiable duties to those it represents.
 
Civil government has a duty to acknowledge the rights resident in customary law, i.e., common law, and natural law, both of which precede any establishment of civil government, judicial pronouncement, or Constitution, and this antecedent law serves to constrain civil government’s positive declarations of law. It is from this antecedent law that government’s duty to secure and protect our pre-governmental rights arises.
 

What Rights Do We All Have?

In our country, the “absolute rights” of every person (not just citizens of a nation or state) according to common and natural law were “personal security, liberty, and property.”[i] It was said that “there is no other known method of compulsion or abridging man’s natural free will, but by an infringement or diminution of one or the other of these important rights.”

Absolute, however, means only that these three rights are not derived from government or society; they exist because they come from God. But, absolute does not mean that the three rights cannot be forfeited, as discussed below.

But, as was said in the two Ninth Amendment abortion briefs we were involved with submitting to the U.S. Supreme Court last week, the Ninth Amendment assures us that these three absolute rights are “retained by the people” and that, by virtue of the Tenth Amendment, the power to protect them is “reserved to the states respectively, or to the people.”
 

Application to Government

According to common law, “personal liberty,” which is the right affected by vaccine mandates, “consists in the power of locomotion, of changing situation, or removing one's person to whatever places one's own inclination may direct, without restraint, unless by due course of law." But, as just stated, the absoluteness of this right does not mean a person can go anywhere at any time.

However, it does mean, that civil government should protect everyone’s right to move around and to limit their ability to move around is unjust unless the limitation results from a knowing violation of that which is declared by law to be wrong, proved by means of a fair process, called due process of law.

This is the meaning of the Due Process Clause in the Fifth Amendment, which applies to the federal government, and that in the 14^th Amendment, which applies to state governments.

The trouble is how far should the law go in limiting personal liberty, even if a person is accorded due process of law.
 

What is a ‘Wrong’ For Which Personal Liberty Should be Forfeited?

We would say that a law prohibiting a person from going to work to earn a living and buying essentials for day-to-day living from businesses open to the public is just when a wrong like murder is committed and proved by due process. But not getting vaccinated?

Murder at common law was considered malum in se, meaning wrong in itself, an intrinsic wrong, but not getting vaccinated would be a wrong only because prohibited by civil law, what the common law called malum prohibitum.

When civil government’s pre-existing duty to preserve and protect our three absolute rights is compared to a proposed duty to “keep people healthy,” it can be seen that there can be no fundamental duty on the part of government in regard to the latter.  There is no end to the limitations civil government can place on personal liberty if public health is primary.

If individuals want a right to personal liberty, then they must recognize that they have a corresponding duty of personal responsibility for use of that liberty. But if they want public health more than personal liberty, then they must give up personal liberty.

Under our constitution as adopted, civil government does not have a duty with respect to public health that can trump its duty to protect common law personal liberty.

Even quarantine laws respecting highly contagious diseases that by their very nature lead to death or permanent disablement are temporary measures with an eye to preserving the personal liberty of all those who are healthy. A quarantine law comports with civil government’s duty to protect the right of other person’s to personal security, i.e. life and limbs, as distinguished from general public health, while simultaneously protecting common law liberty to the greatest extent possible.
 

Conclusion:

Government officials have a right to say what they want about vaccines, though it must always be truthful, but they do not have a right to forego their duty to protect personal liberty.

Click here if you want to know my thoughts on how this connects to mandates imposed by those in the private sector.

And if you are interested in understanding the rule of law and why it now exists in name only in our country, listen to this week’s God, Law & Liberty podcast, which puts the rule of law in the context of the abortion brief we filed with the Supreme Court law week.
 

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[i] William Blackstone, Commentaries on the Law of England, and numerous Supreme Court decisions quoting such.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.