Wednesday, March 4, 2015

Right to Rebellion?

I am totally amazed that no one vociferously refutes the assertion that there is somehow a right to rebellion in US law.

The United States Constitution makes it clear in Article III, Section iii that:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
US History shows that one of the main forces in creating a new Constitutional framework from the Articles of Confederation was Shays' Rebellion.  Shays Rebellion even had former rebels such as Samuel Adams saying:
in monarchies the crime of treason and rebellion may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of a republic ought to suffer death.
Other former rebels were similarly appalled by what happened during Shays Rebellion.

US Constitution Article 1, Section 8, clause 15 states that the militia is supposed to suppress Insurrection.

Unless one can prove that the Second Amendment expressly invalidates the two aforementioned clauses of the Constitution, it is hard to say that it gives a right to rebellion.  In fact, any interpretation of the Second Amendment which purports that it allows for the ownership of arms in order to wage war on the government is obviously ludicrous given that it must be internally consistent:
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (or eiusdem generis, Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated; i.e., firearms, or perhaps more narrowly still, handguns. A hypothetical court may have to determine whether a sword, a Japanese throwing star, or a Taser fit into the "other" category of the statute. Here, the term "other dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.

 A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.
There is no way to harmonise a right to rebellion in the current structure of the United States Constitution.

Some people want to use the Declaration of Independence as a basis for this right, but that is also refuted by the US Constitution in Article VI, clause 2:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
This means that the Declaration of Independence is a historic document without legal significance.  Also, there were other circumstances which the people who drafted the Declaration were addressing.  As I pointed out above, there were far more signers of the Declaration of Independence who thought Daniel Shays was wrong than there were the one who thought he was within his rights.

The Jefferson quote "I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical" was written before the French Revolution occurred (30 Jan 1787).  The Terror would later make him reconsider still more, though he never entirely renounced the Revolution.

Still, one quote does not make law--especially if it contradicts the law.

What the Constitution was intended on preserving is a concept called the rule of law, which is the general concept that government as well as the governed are subject to the law and that all are to be equally protected by the law. Its roots can be found in classical antiquity. The vast difference between the rule of law as opposed to that of individual rulers and tyrants is a central theme in the writings of political philosophers from the beginning. In the works of Plato and as developed in Aristotle’s writings, it implies obedience to positive law as well as rudimentary checks on rulers and magistrates.

That said, one cannot claim to be a "Constitutionalist" if one does not believe in obeying the law, and working within the system to change the law if one disagrees with it.

The ultimate point is that the Constitution does not countenance violent overthrow of the government, but using the system to make any change.

1 comment:

  1. Whether it is the Cliven Bundy crowd, the mis-named Oath Keepers (more like gutless oath breakers) or the crazy rebellion minded misnamed Constitutional sheriff's crowd, or those trying to install Christianity as their state religion in the idiot Bible Belt, those who claim to revere the constitution are, consistently, the worst offenders against it, and the most ignorant of what it contains, as well as the historical context that led to the Articles of Confederation (and perpetual union) to be dumped in favor of our current Constitution arrangement.

    These jerks and anti-patriots or at best pseudo-patriots are a blight on the country, and the antithesis of freedom and liberty.