“No matter what the law is, we did what was right”

| February 5 2013
Christopher Cook

Watch the video in the previous post for the context of that quote, and the proximate inspiration for this piece.

Lately, we’ve seen states and local sheriffs responding to the possibility of laws coming from the federal government that they believe would infringe upon state and/or individual sovereignty. They are passing state laws and making statements (respectively) to the effect that they will not uphold or enforce any laws that constitute such an infringement. In some cases, they are also establishing that attempts to enforce said laws by federal officials may be legally actionable. Gun laws, Obamacare, and other impositions of federal authority are the most common.

In response, we have people across the internet—including numerous comments in threads on this site—saying that such actions by states and the sheriffs are “against the law.” They ask where in the Constitution we find the authority for such things. People, you are missing the point.

1. Government exists at the pleasure of the people.

Government exists to secure and preserve the natural rights that individuals enjoy in full measure in a state of nature. It exists to fulfill a limited set of functions that we alone cannot exclusively fulfill. It exists because we consent to its existence.

If a law is passed that violates this compact, we do not throw up our hands and say, “Oh well, that’s what the law says—we have to obey it.” If a law violates a natural right, we do not look to the law to justify the violation.

No law that violates this compact is legitimate. No government that routinely violates this compact is legitimate. Government has power only because the people give it power.

 

2. The federal government exists at the pleasure of the states

Centralizers may not be happy about it, but that is the fact. The states made the federal government. They agreed to form a union. They demanded a Bill of Rights. How this relationship has played out over the years has been changing, but that doesn’t change the original fact of our national construction.

A law that violates individual sovereignty is not legitimate, no matter what the law says. In the same way, if the federal government goes too far and violates state sovereignty, this too may be illegitimate. There is a line that the federal government can cross, whereby the states can simply say NO. It such a case, we do not turn to the the letter of the Constitution, we turn to a true understanding of its intent.

Which brings us to our final point . . .

 

3. The Constitution is not holy writ

The Constitution is a brilliant document. It was one of the first, and remains one of the best, extensions of natural human rights into a political society. The “social contract” is almost always a philosophical construction. Our Declaration and Constitution remain among the very few instances in human history where the social contract was actually signed. Anyone who reverences human rights should get the chills just thinking about it.

But the Constitution is not perfect. Forces bent on circumventing its intent have succeeded in circumventing its intent. If it were perfect, they would not have gotten away with this.

Thus, when statists cross a line and violate the sovereignty of states or individuals, it is not legitimate even if justification for the violation can somehow be wrung out of the letter of the Constitution. Similarly, resistance to such a violation is legitimate, even if stipulation for such resistance cannot be found in the letter of the Constitution.

 

Bottom line: Right is right, and wrong is wrong, no matter what the law says.

7 comments
phoenixlaw
phoenixlaw

We have traveled down the road fairly well for more than two hundred years with our version of representative democracy, and the thing that has always bound us together and kept us mostly on the right track was the Constitution.  I agree with you that right is right and wrong is wrong, no matter what the law says.  But the Constitution provides for an orderly and consistent manner  to change laws, even the Constitution itself, if the need arises.  Resistance to laws,  felt by some to be unjust or just plain wrong, should come through the orderly process spelled out in the Constitution which has provided us with a pretty good road map so far, rather than in the streets as you suggest.

WesternFreePress
WesternFreePress moderator

 @phoenixlaw You are correct; that is the ideal pathway. However, state legislation designed to clarify their stance towards federal legislation isn't action "in the streets." Another problem, though, is that not everything is clear. There are times when the Constitution is either silent or unfixed to a clear pathway. For example, do you remember the Buddhist Temple scandal and Al Gore's "No controlling legal authority"? It was creepy and gross, but in a way, Gore was right. Short of impeachment, who could take action against any crime that may have taken place? Similarly, what if a president of the United States were involved in a much more urgent crime than something like Watergate or subornation of perjury? What if, say, a president committed armed robbery, rape, or homicide? Something that couldn't wait for the House to hold hearings. Would he be arrested? Who would do the arresting? Or take a real example: There is an argument that the senate's failure to submit and pass a budget over the last three years isn't just lazy or irritating, but actually illegal. Let us say that this is true. What authority can judge them? How can they be held accountable? Are elections the only way? These things aren't clear.

 

Then there was the Nullification Crisis of 1833. The dramatic centralizations that took place in 1865 and again in the 1930s. Not everything is settled within the Constitution. How we see the relationship of the states to the central government has "evolved" from the place where the Framers of the Constitution left it.

 

How about the political prisoners held by Wilson or the internment of the Japanese under FDR? Sometimes, the system simply gets it wrong.

 

I agree that the Constitution is brilliant, and provides a pathway we must follow whenever possible. But the scope of the question goes beyond that as the exclusive formulation for the full range of our options, and there are unknowns.

phoenixlaw
phoenixlaw

So then, under your theory, each group - or individual - is free to decide which laws they like and agree with and will follow, or which laws they disagree with and will not obey - right??  Some are arguing that local sheriffs should band and not allow enforcement of Federal law in their jurisdiction.  What would happen if an equally powerful group decided they didn't agree with a vital law in a different area and worked to block its enforcement?  Sounds like chaos and the start of anarchy to me.

Econ101
Econ101

 @WesternFreePress  @phoenixlaw Remember too the civil rights marchers of the 1960's and the suffragettes of the early 20th century.  Both were very much "in the streets."  The latter resulted in a constitutional amendment.  The former resolved an egregrious conflict between the Bill of Rights and state laws / southern governors (all Democrats by the way).

WesternFreePress
WesternFreePress moderator

 @Econ101  @phoenixlaw Econ101's answer is a solid one.This is either a strawman or a misperception of our position. To clarify . . .

 

Minarchy is not anarchy.

 

Resistance to laws that are obviously violative of natural human rights is not the same as random, capricious, casual resistance to any old law.

 

We're not a casually rebellious lot; we not like those foolish children who draw anarchy symbols on their math books, wear black bandanas over their faces at anti-G8 rallies, and dream of "Tearing the whole freakin' system down, man."

 

But we do understand the social contract. We know that our rights preexist government. And we reserve the right to withdraw consent if the social contract is violated or abrogated. Right now, I would describe the social contract as being "exceeded," which is the last step before outright violation. We would very much like to see things head back in the direction where the contract is respected.

Econ101
Econ101

 @phoenixlaw So then, under phoenixlaw theory, each group - or individual - is duty bound to obey every law to letter including heinous laws that rob them of natural unalienable rights like freedom of speech, assembly, religion, self-defense, property, etc.  Correct?  Sounds like the start of tyranny to me.  

 

Your statement as well as my parallel statement (paragraph above) represent argument via petulent, juvenile, strawmen extrema. Neither yours nor mine is worthy of serious consideration.

 

It's all a matter of degree, and surely you know that (or do you?). Look at what Thomas Jefferson said about disobedience and revolution against his king: 

 

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, ,,,. "

 

Conservatives favor limited and minimal government.  People on the left love to equate this with no government and no laws at all.  It's convenient for the left to do so, but it's also intellectually lazy and hardly worthy of further response.