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Thursday, May 14, 2020

Hope for the future in this unconstitutional lockdown

When President Donald John Trump plucked Don Willett off the Texas Supreme Court for a circuit judgeship, I felt sorry for Twitter (Willett's tweets were amusing) and the state of Texas. But it turns out Texas has plenty more judges where Willett came from.

Governor Greg Abbott appointed Jimmy Blacklock to succeed Willett. The judge had worked for the governor when he was attorney general.

Readers may recall a judge threw Shelley Luther in jail for seven days because she refused to apologize for re-opening her beauty shop -- Salon à la Mode in Dallas -- amid this unconstitutional and ineffective lockdown.

The governor and the Texas Supreme Court sprang her from jail after two days, and Ted Cruz got a haircut. End of story, right?

But Shelley Luther is not the only star in this farce. Blacklock wrote the majority opinion. He made it so simple, even I could understand it.

He began with a quote, "The Constitution is not suspended when the government declares a state of disaster."

Then he crisply explained it.

Blacklock wrote, "All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.

"In the weeks since American governments began taking emergency measures in response to the corona virus, the sovereign people of this country have graciously and peacefully endured a suspension of their civil liberties without precedent in our nation’s history. In some parts of the country, churches have been closed by government decree, although Texas is a welcome exception. Nearly everywhere, the First Amendment 'right of the people to peaceably assemble' has been suspended altogether. In many places, people are forbidden to leave their homes without a government-approved reason.Tens of millions can no longer earn a living because the government has declared their employers or their businesses 'non-essential.'

"Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate — both to its citizens and to the courts — that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.

"Ideally, these debates would play out in the public square, not in courtrooms. No court should relish being asked to question the judgment of government officials who were elected to make difficult decisions in times such as these. However, when constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances."

That's the whole decision.

That is judicial restraint. He gave the elected officials plenty of rein -- elections do have consequences -- but, as Glenn Reynolds noted, "The courts will let the government move fast in a crisis, but not forever."

If the crisis has not passed in two months, your methods are never going to fix it. And surely as the deaths of nearly 80,000 Americans shows, the lockdown did not destroy the virus. But it sure wrecked the economy.

As depressing as that is, the decision by Blacklock encourages me. He's 39. I get that justices give the easy work to the new kid to see how he will do. But even in T-ball, home runs take effort. He knocked that one over the fence.

The Wisconsin Supreme Court on Wednesday shutdown its governor's lockdown. More judges need to stand up and just say no.

The American Revolution was fought during a smallpox epidemic that killed one-third (33%) of those who caught the disease.

Covid-19 kills less than 1% of those infected.

Come on, open the country again.

And keep an eye on Justice Blacklock. He seems to know what our constitutions are and why they are important.

I'd say most of this nation's idiot governors do not.


  1. The judge (a woman) who wrote for the majority in the Wisconsin case Is named Patience. Hers had run out. So has mine.

  2. Amen. To both of your comments.

  3. You need people to file lawsuits.

    It was 5 years between the Boston Massacre and Lexington and Concord.

    19 counties are rebelling in PA. Churches are rebelling in CA. Citizens are revolting in MI.

    Sounds like we're way ahead of schedule.

    1. Things move faster in our modern world. Thank God for the internet or the constant MSM news blackouts would work and the truth would never see the light of day. I guess I should say here, thank God for Don Surber. - Gary B

  4. Were opening tomorrow in Eastern Oregon. Kate the Brown has no power here She's the wicked witch of the West-and to the East is Idaho....

  5. "More judges need to stand up and just say no."

    Careful what you wish for. We've had liberal judges saying no to the Constitution for years.