When the states formed the federal government in 1789, they did so pursuant to the Constitution.
The Constitution was written to establish and 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 governments 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.
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.