Ok so here’s my take on where people are going wrong with their challenges to the unconstitutional shutdown orders. They all focus on the first and second amendments — freedom of speech and assembly and religion and the right to bear arms. I even heard Victor Davis Hanson today and he only talked about the first two amendments. I agree that they will win somewhere down the road, but what will they really win. A decision that their rights were violated but likely little compensation.

So why do I think that someone should be looking to use the fifth amendment? Well I assume most of you equate the fifth amendment with your Miranda rights. However there is much more to the fifth amendment. It contains the due process clause as well as more importantly for this rant, the taking clause which states that the government cannot take your property without just compensation. Now I can’t claim to be a current expert on the law in this area, but years ago I published law review articles on the subject.

I personally can’t think of an action that constitutes a greater taking of your property, other than eminent domain, than telling you effectively that the government is now taking over your business and closing it down until they decide to let you use it. I’m sure that they will claim we only took it for three or six months. Ok pay me for six months revenue that you took.

Quite frankly I am surprised that I haven’t heard of any lawsuits filed on this basis.

Now here’s the beauty of pursuing this option. First and foremost it’s about money not Pyrrhic victories. Next you put the self important would be kings at personal monetary risk. You force them to have skin in the game.

The first suit I would love to see filed would be by a NJ resident who owns a small business in NYC filing a case in federal court, this is what’s called diversity jurisdiction and gets you out of state courts, and to make it even more serious a class action, claiming your property has been unconstitutionally taken and sue Cuomo and deBlasio both individually and in their official capacities. It would be real interesting to see how different they would react if their fortunes were potentially on the line. Make it clear they aren’t playing with house money, or more correctly taxpayer money, and let’s see if their Napoleonic complex might change. Something has to be done to hold their feet to the fire.

i have no idea how this would come out at the Supreme Court, but with an originalist majority, I like my chances.