In 1886 the US Supreme Court ruled, “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” (Norton v Shelby County 118 U.S. 425, 442)
What has happened in the last 123 years? Why does Congress pass laws that violate the Constitution? For example, the PATRIOT Act violates at least 6 of the 10 amendments that make up the Bill of Rights. States consistently pass laws that violate the rights and liberty of their citizens. What is an individual to do?
Frederic Bastiat writes, “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.”
This leaves you with one option, the long standing practice of Civil Disobedience. While the term was popularized by Henry David Thoreau, the concept is much older, dating back to at least Socrates, who vowed in the Apology that he will disobey the lawful jury if it orders him to stop philosophizing.
Thoreau’s conception of civil disobedience has two principles. The first is that the authority of the government depends on the consent of the governed. The second is that justice is superior to the laws enacted by the government, and the individual has the right to judge whether a given law reflects or flouts justice. In the latter case the individual has the duty to disobey the law and accept the consequences of the disobedience nonviolently.
Another “hero of Civil Disobedience” (Ghandi) called his practice “satyagraha,” a Gujarati word meaning “firmness in adhering to truth.” Satyagraha, free of the defects of passive resistance, introduced six elements into the theory and practice of civil disobedience:
* First, its moral basis was grounded in truth, a basis much deeper than that provided by the theory of consent. To be binding, laws had to be truthful. All untruthful laws had to be resisted, though civilly—that is, by truthful means.
* Second, civil disobedience presupposed the obligation to obey the state: only those had the right to practice civil disobedience who knew “how to offer voluntary and deliberate obedience” to the laws of the state.
* Third, commitment to nonviolence was an essential component of civil disobedience. The commitment in question could be either moral or tactical, depending on the moral aptitude of the practitioner.
* Fourth, the practice of civil disobedience required a minimum degree of moral fitness, to be acquired by the exercise of such virtues as truthfulness, nonviolence, temperance, courage, fearlessness, and freedom from greed.
* Fifth, a practitioner of civil disobedience had to accept the punishment consequent to the disobedience voluntarily, and without complaint.
* Finally, engagement in civil disobedience had to be complemented by engagement in organized social work.
For Gandhi, it was not enough to seek to improve the state; it was equally necessary to seek to improve civil society.
So, the next time you have a chance to, please practice “Satyagraha” and disobey unjust or unconstitutional laws, because they are “as inoperative as though it had never been passed.” it is your right, nay, your duty to stand up for your rights, your freedom and your liberty!