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January 27, 2011

Law Prof Gets It Wrong On Right To Revolt

Do Americans – indeed any people – have the right to take up arms against their nation’s government when they live in a democracy? According to one law professor, Carl T. Bogus of the Roger Williams University School of Law, such a right does not exist in a democracy.

We must be eternally vigilant about government errors and abuse. But we must recognize that differences of opinion are the normal order of things. In a constitutional democracy, we correct errors through constitutional means.

It will not do to say that we must be armed and ready to go to war with our government in the event that it becomes tyrannical. There are always those who believe that government tyranny is not a future contingency but a present reality. That may not have been the case with Jared Loughner, but it was the case with John Wilkes Booth and Timothy McVeigh.

There we have it – since we are a society that operates by democratic means, that means that the very notion of taking up is illegitimate. Or so argues Carl Bogus. Indeed, he dares to classify those of us (and I gladly include myself in that number) with a presidential assassin and a murderous terrorist. But what he fails to grapple with is the truth of the principles that he tried to explain away as valid only in the historical context of the American Revolution – the words of the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[72] that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 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, to throw off such Government, and to provide new Guards for their future security.

Notice, please, that this cornerstone of our nation’s independence does not limit its principles to just one time and place – it states a universal truth. Whenever ANY FORM OF GOVERNMENT becomes destructive of people’s liberties, it is inarguably the right of the people to make a change in that government – and when such a regime becomes despotic, it is their right and duty to THROW OFF (overthrow) said government.

Of course, does this necessarily mean the use of violence to achieve change? Certainly not – the use of violence should, ought, and must be reserved for only the most rare of circumstances. But is the use of violence precluded because a government calls itself democratic, perhaps retaining the form and trappings of a republic while becoming despotic and beyond the control of the people in reality? No, it is not – and indeed it cannot be so precluded if we are to remain faithful to the founding principles of American independence.

How, then, does Bogus reach his flawed conclusion? He does so by assuming that at all times and in all circumstances the American government (and any democratic republic) is the people’s government rather than something alien to them which is imposed upon them without their consent. And therein lies the flaw of his argument.

Consider circumstances in which a relatively closed cabal of oligarchs manages to secure control of the instruments of government. They could certainly pass and implement laws and have them held to be valid in the courts upon which members of that elite sit, even as they ride roughshod over the will of the people.

We see such a situation in the wake of Proposition 8 in California. The people passed a proposition banning gay marriage, only to have members of the legislature pass bills that would have authorized it and courts rule that the vote of the people was without force due to a tortured reading of the state’s constitution. Upon the amending of that constitution by the vote of the people, the executive branch refused to carry out its obligation to defend the amendment in the courts and the courts in turn ruled the amendment itself to be a violation of the constitution to which the people had appended it at the ballot box. In effect, the forms and trappings of democracy exist, but the reality is something quite different. I’d argue that such a situation cries out for the use of force by the people to take back control of the reins of government from those who have shown blatant disregard for the will of the people – at least in theory. Provided, of course, that one could make a cogent case that this is part of “a long train of abuses and usurpations” of such severity as to have created the very sort of despotism that makes the government of that state a hollow democracy which is not, in fact, the people’s government. At that point it would have become the very sort of alien government that Bogus posits that the British Crown and Parliament were in the 1770s.

Bogus, however, speaks specifically to the issue of the use of Second Amendment rhetoric in response to proposals to undercut the very right to keep and bear arms guaranteed by the Second Amendment. He would, no doubt, find my words here to be the very sort of frightening stuff that undermines faith in democracy and which no doubt is the very reason that rights under the Second Amendment (and probably the First Amendment, for that matter) ought to be restricted and limited by government. And therein we return to the same problem noted above – when government is not merely wrong, but is in fact impinging upon the liberties which our fundamental law guarantees to us, does violence become an option? Bogus would argue that it never can in a system that claims to be a democracy.

The Jeffersonian answer, on the other hand, is that it does remain an option – that the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. And I, for one, will stand by that principle – but suggest that said tree, like a cactus, must be watered sparingly and only when absolutely necessary lest it die from a hyper-abundance of the very substance that would otherwise guarantee its survival. Such “Second Amendment solutions” are therefore only to be used in extremis, not in every instance of disagreement with any given policy.





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Comments on Law Prof Gets It Wrong On Right To Revolt

Bogus' argument is totally bogus!

|| Posted by Hube, February 3, 2011 06:30 PM ||

Professor Bogus is appropriately named.

Jefferson and the rest of the Founders did not equivocate about the right to revolt. It is inherent in our nature as free people. The government is granted powers by the people. The people are not supplicants who beg the government for conditional boons.

|| Posted by Walking Horse, February 5, 2011 07:13 PM ||
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