[This is still a bit rough. The beatings will continue.]
Ethical Resistance in a Constitutional Republic
Are we in the grip of domestic enemies of the Constitution? I believe so. Because I believe so, I have a duty to consider action to defend the Constitution. Much hinges upon two questions:
- Am I correct? and if so,
- What action is appropriate?
I will attempt to answer both of these in a train of thought I call Ethical Resistance. More pointedly, I will try to set up a framework for answering these questions rather than answer them specifically, and hope thereby to teach a man to fish, rather than provide fishsticks.
Duty
Employees of the United States Government including all members of Congress are required to take the following oath before assuming elected or appointed office.
5 U.S.C. 3331:
“An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services shall take the following oath: ‘I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’”
It is clear that there is a duty to defend the Constitution against domestic enemies. In discharging any duty, an amount of diligence is required, or dereliction may still be found even in the most fervent but ignorant and misguided pursuit of “duty”.
I have intentionally not relied upon any formal legal opinions, as I am woefully unqualified to do so, and resistance is only really justified if our system of laws is sufficiently compromised or ill-equipped to deal with the threat. I wish to rely upon those clear pillars of liberty; government limited by the Constitution, and the Constitution defended by a free citizenry. The key difficulty is that a string of case law may provide a legal basis for a point of view, but it is no guarantee that the point is ethical. There is a reason this article is not called “Legal Resistance”, and that is that civil disobedience may be required. I can certainly foresee departure from regulation or the breaking of laws as necessary components of defending the Constitution.
I contend that a good-faith effort, well-defended with reasonable arguments, by reasonable people, is sufficient diligence to pursue duty without being reckless. We may hazard the ship for great goals, but not for small ones.
Enemies
An enemy of the Constitution is probably a lifelong enemy. Defense means different things, based on the threat. An enemy at rest elsewhere is defended against in a deterrent, general fashion, whereas an up-close attacking enemy is defended against in a specific, kinetic fashion.
So let there be two tiers of “domestic enemies of the Constitution”; those who pose a clear and present danger, and those who do not. Those who pose a clear and present danger would be those of credible means who pursue a purposeful and unambiguous course of action which directly threatens a specific, identifiable pillar of our system of government as set out in the Constitution as amended.
Those who do not would be those who espouse or promote systems or features of government for the United States which are not Constitutional and who are not committed to accomplishing those ends in a Constitutional manner.
Actions
Many people are trapped in a false choice between exposure to accusations of treason (or at least sedition) on the one hand, and the forfeiture of rights (or dereliction of duties) on the other, when the conversation develops into justifying armed action against “the government”. As if you could shoot at a government. For me, the short version of the solution to this false dilemma is to refuse to address it at all. There’s a long version as well, but it will have to wait, and hopefully, it won’t need much discussion anyway.
Focus instead on what can be done without force of arms. After all, force of arms is designed not to wound people, but to accomplish some goal typically involving words on paper. So focus on the words and the paper. Meanwhile, keep your powder dry, and work in good faith to ensure that it never needs to be used.
Operate only as far as necessary, not as far as desired.
The purpose of ethical resistance is not to accomplish a conservative restoration of the Constitution. The purpose of ethical resistance is to return our society to a condition where the normal processes of a free citizenry operating in a Constitutional manner may accomplish that restoration. Ethical resistance must not become a bag into which is thrown all hopes and goals, or it is no better than its counterpart, unconstitutional government, and becomes simply another way of imposing a will upon the populace. This is critical: no matter how right you may be, you must operate through Constitutional methods whenever those are available. Only when Constitutional methods are closed off may we engage in resistance and still consider it ethical.
Because we define the threat before engaging in ethical resistance, we have also set a marker for when to revert to normal processes, upon observing that the threat has been mitigated.
So having removed the issue of armed action from the conversation (without ceding any rights or abridging any responsibilities), and set a threshold for ceasing ethical resistance, we have an upper limit on discussion and an endpoint to action. We should now be free to discuss defending the Constitution against domestic enemies.
Define terms
In order to do this, let us attempt to define or imagine samples of a domestic enemy. We would have to state the nature of the attack and then identify the actors, or no action of ours can be effective. Finally, and perhaps most difficult, we must demonstrate that a given complaint actually does rise to the level of action by a domestic enemy which requires from the oath-bound (and permits from the general citizenry) a defense of the Constitution.
Anything which is the result of our elected representation in Washington doing their jobs, no matter how poorly, is off-limits. That is to be addressed through the simple political process, and does not come anywhere close to invoking the clause I focus on in this article, from “defend” to “domestic”.
As a first stab at this, I propose that defining a domestic enemy of the Constitution be tied strongly to actions and conditions, and not individuals. Individuals are only enemies of the Constitution so long as they remain engaged (not minute to minute, but in general) in the threat activity.
Also, actions chargeable under various criminal laws are not to be considered as fair grounds for accusations of enemy status. More on that later.
The government is not the Constitution
The government itself is indeed capable of acting as an enemy of the Constitution. If this were not the case, oaths would be sworn to the government instead of the Constitution, the duty of the oath-bound would be to support and defend the government, and the ultimate source of authority would be the government itself. So any attempt to defend the actions of the government by claiming that the government and the Constitution are the same are not true.
Unlike various other systems, in the United States the President is not the personification of the government, and neither the President nor the government is equal to the Constitution. Neither the President nor the government is the object of our allegiance.
So long as the President and the government act as loyal agents of the Constitution, as they are required by their own oaths, by law and in the case of the President by the Constitution itself, then they are not open to designation as “enemies” of that Constitution. But it is far from given that this is always the case. In an academic, statistical sense, I would say that it is only a matter of time before a government emerges which is hostile to the Constitution which binds it. The question is therefore not if, but when. That we have a duty to determine whether that time is now is not even slightly in doubt–we always have that duty.
That said, I do not see how the actions of “the government” can be squared with my proposed definition of a domestic enemy of the Constitution, so this is more a philosophic matter than functional. An attempt to bring action against “the government” would probably not be separable from action against the Constitution itself because neither is imbued with a corporate will. It may be hair-splitting, and in all honesty I am having some difficulty describing the distinction, but I feel it is necessary as a matter of pedigree for scrutiny of more closely identified actors. If the government itself is not above the charge, then no agency, officer, or employee of government can claim an inherited immunity from scrutiny, and this is where things get interesting.
Government employees can be domestic enemies of the Constitution
Frankly, government service is the only place I would expect to find enemies of the Constitution. If we exclude mere criminality from consideration, (as a problem with a more tractable solution) then what is left is actions which are not criminal in nature, or potentially criminal actions committed by those who are for some reason immune from prosecution. I believe, but I am not certain, that these restrictions limit the scope of consideration to political activity of a non-trivial nature. Even if Congressman Jefferson’s freezer full of ill-gotten cash (nearly $100,000) is an assault upon our system of government, the fact that it is chargeable as a mere crime will cause us to ignore this in the current context.
On the other hand, a Congressman who introduced legislation to break the Republic into “more manageable chunks” would be immune from criminal prosecution, despite the clear case which can be made that the action is an obvious and immediate threat.
For me a borderline case is reform of the electoral college. It was much-debated by the Founders. It is finely balanced and a critical defense against tyranny. I am convinced in my bones that this is a threat to the Republic, that it constitutes and end-run around the clear intent of the Constitution, and that its proponents are acting contrary to the Constitution.
On the other hand, many good-natured but poorly thought through criticisms of the electoral college are uttered; it was expected that at some point, another serious legislative effort to “reform” it would be put forward. So long as the actors involved are operating in good faith, no matter how misguided, does it constitute “enemy” action? This is an important and timely question.
If the government itself is capable of being an enemy of the Constitution, then so too is an individual who works for the government, whether as elected or appointed leadership, political or career track types, management or labor. A position in government, even at the top, is no insulation from consideration as a domestic enemy of the Constitution.
Finally, while the government could be the enemy, we choose to exclude government itself, and focus instead on restoring a besieged government to functioning in a Constitutional manner. We are not anarchists. Part of supporting small government is supporting government. Destruction is for radicals, which we are not.
