Eduardo Vidal | Sunny South Florida | April 2020

This month’s column will address the question of  “Takings in the Time of Virus.”  As everyone knows,  in the United States the vast majority of economic activity has been halted by government orders,  at both federal and state levels,  at least through Thursday,  April 30.  This halt has occurred in order to slow down the spread of the Wuhan Virus,  a product of the totalitarian Communist government of China,  but in the United States such a halt must comply with the requirements of our Constitution,  and in particular the Bill of Rights,  Amendment V,  which provides:  “nor shall private property be taken for public use,  without just compensation.”

Our private property includes our right to work freely,  in order to pursue happiness as proclaimed in our Declaration of Independence,  and at least to provide for ourselves and our families,  so that we can be independent and self-reliant,  and do not become a charge upon the public.  Many people consider that their work is their calling,  and so pursue it to the best of their abilities.  These government orders to stop working constitute,  in effect,  a taking of our private property,  which includes our right to work and engage in economic activity.

The evidence is overwhelming,  however,  that this government-ordered shutdown is destroying our economy,  and therefore our ability to work and earn a living.  During the last two weeks,  nearly 10 million workers have filed for unemployment compensation.  The stock market is down by around one-third from its all-time highs reached earlier this year.  Most economic forecasters are predicting not only a recession,  meaning two consecutive quarters of economic contraction,  but also a full-fledged depression.

The so-called CARES Act,  enacted by the federal government on Friday,  March 27,  represents an attempt to compensate us for our private property that has been taken,  but whether it adds up to just compensation is questionable. These federal reparations do not come close to compensating us for all our private property that has been taken,  and in any event government dependency is no compensation for the independence and self-reliance of a job.

The federal government does not have adequate resources,  even with all the printing presses of the Federal Reserve going at full blast,  to compensate us for shutting down our economy.  In fact,  these bailouts will only make things worse,  further increasing our already nearly-unsustainable federal debt,  and the only way for government to obtain the resources that it requires is to let us get back to work,  plus further tax cuts and reasonable deregulation to spur economic growth,  so that we can have a V-shaped recovery,  instead of the L-shaped recovery from the last financial crisis.  It is typical of government that first it creates a problem,  then pretends to solve it and fails to do so,  then calls for more government intervention to solve the continuing problem,  which only results in the problem getting worse,  and so on it goes.

Then there is the question of what public use or purpose is served by this economic shutdown?  Our public health experts claim that only a total shutdown of all activity can prevent the Wuhan Virus from killing millions in the United States this year,  so they persuaded our governments to shut us down almost completely,  with no end in sight.  Yet during the first quarter of this year,  fewer people died from the Wuhan Virus than from seasonal flu,  childbirth,  malaria,  traffic accidents or abortions.  Most of the fatalities from the Wuhan Virus also had other underlying medical conditions,  such as obesity,  diabetes,  high blood pressure,  lung disease,  weak immune systems or the like,  plus they tended to suffer from the curse of old age.  Heck,  shutting down gyms is contributing to the spread of obesity,  thereby making us more vulnerable.


If it were totally up to these experts,  they would keep the country shut down until our economy was destroyed.  They do not acknowledge that they are confiscating our property,  while offering insufficient compensation,  because whatever  government reparations are possible will not add up to just compensation.  How can it serve a public purpose to destroy our economy?  You will then also have destroyed the means for government to provide us with just compensation.

During the Vietnam War,  an agent of the United States government  declared that:  “We had to burn the village in order to save it!” Today that is the approach of our public health experts:  “We have to shut down the country in order to save it!”   Many of these so-called experts are career-long government bureaucrats who were unprepared for the Wuhan Virus.  Their failure started when they trusted information from China and the World Health Organization,  both unreliable and even malevolent sources.  The global administrative state is failing to address even this crisis, a public health problem of the type that it was specifically designed to solve.  As the Romans asked after they translated Plato’s Republic,  who guards the guardians?  Who holds the experts to account?  Will we let them destroy our American republic with their narrow-minded outlook?  America is not a technocratic republic,  but a constitutional republic.

​Some experts have even called for not only an extended shutdown,  but also  a nationwide shutdown.  However,  America is a continental country and a federal republic,  in order to make room for the diversity of local conditions,  because New York is not Iowa.  We are not a national republic,  with exactly the same regulations applying everywhere regardless of local conditions.

Our response also reflects the growing secularization of our society,  with responses similar to that of pagans confronting pandemics in the ancient Greco-Roman world.  Starting in the year AD 165 a pandemic ravaged the Roman Empire for about a decade,  and during this time Galen,  one of the best-known physicians in the ancient world,  fled Rome for his country estate,  while Christians tended to the afflicted.  Today our secular elites react with similar panic and insistence on zero-risk.

The crisis of the Wuhan Virus represents a government failure,  not a market failure,  with the Chinese government allowing this virus to escape without warning and to terrorize the world,  while the United States government failed to identify the threat and then has over-reacted in response.

In addition,  much of the public health danger in the United States is due to the incompetence and corruption of  governments,  especially in urban areas that have been hit hard by the Wuhan Virus,  such as New York City and New Orleans.  In both cities,  the municipal administrations took a relaxed approach in February and neglected to restock supplies until March.  A few years back New York State failed to replenish its supply of respirators and other medical devices,  and instead invested even more money in a solar panel plant,  but this investment was completely lost when the plant went bankrupt.  Crony capitalism is not much better for public health than totalitarian communism.  The ObamaCare tax on medical devices also discouraged their production,  and the Obama administration failed to replenish the strategic stockpile of face masks after the swine flu pandemic of 2009,  which killed thousands in the United States.

We need to go back to work even before the public health experts acknowledge that the threat is fully solved,  because their solution is more trouble than it is worth,  and their cure is deadlier than the disease.  Shutting down a business constitutes a taking of private property,  for which government in the United States must have a public use and pay just compensation.  These shutdowns should not be extended beyond April,  and come May let freedom ring throughout this land!

References:  (1)  “Takings:  Private Property and the Power of Eminent Domain”  (1985),  by Richard Epstein,  Professor of Law at The University of Chicago;  (2)  “Love in the Time of Cholera”  (1986),  by Gabriel Garcia Marquez,  winner of the Nobel Prize in Literature,  from Colombia;  and  (3)  “Vicksburg:  Grant’s Campaign That Broke the Confederacy”  (2019),  by Donald Miller,  Professor of History at Lafayette College in Pennsylvania.

Ed Vidal

About Ed

Mr. Vidal is a corporate lawyer with over 30 years of experience in New York and Chicago firms