Old Rule: A Law in Violation of the Constitution is No Law at All.

I’ll go further than that, actually, a law in violation of basic human rights, regardless of whether it’s explicitly called out in the Constitution or not, is no law at all.

So, on the Book of Faces, there was this:

People keep making up new rules, for their own convenience (although I kind of like the one given in the response to Mr. Rubin).  And they never seem to be bothered by the old rules.  You know, like the Constitution which is supposed to spell out certain specific enumerated powers of Congress, the President, and the Courts and none beyond those specified.  Further, in the Bill of Rights, certain things are intended to be made off limits to Congress.

It’s popular in certain circles to claim that the Constitution is a “living document” and thus to be reinterpreted to suit the political whim of the moment.  Try doing that with any other legal document (like, say, your mortgage contract) and see where that gets you.  It’s even more popular, in much the same circles to flat out lie about what it means.  No, the Second Amendment was not about letting the government, whether State or Federal, arm its own troops.  That’s not what the “militia clause” means.  I have discussed this elsewhere.  Notably here, here, and here.

Living Constitution folk claim that we can never really know what the Founding Fathers actually meant.  We can’t get inside their heads and read their minds.  Thus, any modern interpretation of the words they wrote is as good, as valid, as any “original intent.”  That’s a pure smokescreen.  We don’t need to “read their minds.” They used certain words and constructions which had well understood meanings at the time the Constitution was written, and again as each of the various amendments were added.  We can take their “intent” in the words they wrote–that what they said, in the words they used according to the way those words were normally understood at the time, is what they meant.  That is what “original intent” is.  It’s not rocket science.  It might take some study of how words and constructions were used at the time (phrases like “establishment of religion” and “well-regulated militia” had meanings quite at varience with what modern “interpreters” try to inflict upon them).

Moving away from the Constitution itself, and as an excuse for violating it, people will mumble about “will of the people” and the “right” of the “people” to pass whatever laws they want but, well, if you follow that logic, that anything government does is okay so long as it follows whatever process it has to passing laws, then the very idea of rights is lost.  Once again, I’ve discussed this here.

That’s the general case where “law” does not mean “right” but in the special case where the government exercises powers not granted to it by the Constitution (or amendments thereto), and particularly when it involves things specifically forbidden to the government, then it is not even “law” in truth because the government has no authority to pass such law.  It may have all the appearances of law in that Congress held a vote saying “the government can do this”, the President may have signed it, police may arrest people who violate it, and the courts may allow their conviction to stand.  But in all of that, it is the government that is breaking the law because that’s what the Constitution is, the Supreme Law of the Land.  Period.

That’s the ideal.  Unfortunately we live in the real world.  And while ideally, the Constitution should be all the “gun permit” I should ever need.  No, even more basic than that, the basic right to life, and thus the right to defend that life against threats, and thus again the right to effective tools to defend that life, should be all the “permit” I need.  But if I try to act on that, then Men With Guns^TM will come and throw me in jail or outright kill me (depending on if they see me as an immediate threat). And while the government is wrong to deny me that right, all I would accomplish at this juncture is my own end.

And so the government breaks the law, the Supreme Law of the Land, on a regular basis.  And most people sit and watch, waiting.  Nobody wants to be the first to take direct action against the illegal actions of the Federal and State governments.  Act too soon and at best, you’re John Brown, hanged for treason.  You may become a name people rally around later but…hanged for treason.

And so people wait.  As Jefferson put it:

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 that people continue to suffer evils, and raise at most vocal outcries as Federal and State governments continue to illegally assert powers not granted by the Constitution, does not make those actions in violation of the Constitution legal any more than any criminal, able to get away with his crimes for an extended time is not a criminal.

So, old rule:  If you’re passing laws in violation of the Constitution, you are the lawbreaker.  Not me.