Due Process of Law, #1: Can a Law be Unlawful?

When you read this post, consider what kind of people it takes to distinguish between lawful and unlawful laws. Consider what kind of people it takes to force their leaders to abide by lawful laws.

Ask yourself this question. Are we still that kind of people?

Necessary and Proper

Lawful vs Unlawful(graphic credit)

By Jeff Rutherford

I’m often tempted to try and devise a set of questions as a litmus test to reveal whether a person leans towards Conservatism or Progressivism.  Here’s a candidate question for such an ideological litmus test:

Can a law be unlawful?

To elaborate the question:  I’m talking about laws that are passed by a state or federal Legislature, following all procedural formalities, and signed by a Governor or President.  Can such a law be unlawful?

What is your first impression?  Is lawmaking just a

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15 thoughts on “Due Process of Law, #1: Can a Law be Unlawful?

  1. If the law violates a civil right right, it is unlawful. Legislators can produce and executives can sign almost anything they want, but is the judiciary decides the law instructs unconstitutional acts, it can be stricken. Constitutional Law 101. It is not a litmus test for conservatives and progressives, but a test for going to law school.

    JMJ

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    1. How simple! Everything now makes sense. We don’t have to think about justice. We don’t have to work for justice. We just have to obey those people who wear those funny black robes.

      What is lawful is whatever judges say is lawful. Thank you for enlightening me. NOT!

      Liked by 1 person

  2. Absolutely, the law can be unlawful. It can also be perverted and distorted. That is why we have so many built in checks and balances, three branches of government, an appeals process.

    There was a cartoon floating around that showed a home surrounded by a swat team with the caption, “think about this the next time you say there outta be a law.” Like it or not, government IS force and the fact that so few seem to recognize that right now is kind of scary.

    Liked by 2 people

    1. I think that the semantics here are a bit tricky. “Unlawful” does not seem to be the right term. Bad, certainly, Potentially unconstitutional, all too often. Improper, wrong, inappropriate, all of those can describe many of the laws (and many of the 100 times as many regulations) we have on the books.

      But as laws, by definition they are “lawful.” In all those cases where they shouldn’t be — and all parts of the political spectrum will agree that some shouldn’t be, even if they don’t agree on which ones — the issue is how best to address the problem.

      That some laws are wrong seems almost trivial. That some regulations are wrong is also a dramatic effect upon our lives, but all would agree that some are wrong. (Thus, as a litmus test, this might not work … unless it is to explore the probably wrong use of the word “unlawful.”)

      The real question, I think, is: What do we do about it?

      ===|==============/ Keith DeHavelle

      Liked by 2 people

      1. Good point. Unlawful is probably the wrong word. Obviously if it’s the law, it’s lawful. Unethical perhaps, but still the law. On the other hand, there really are some laws that are in direct violation of our Constitution and our Supreme Court is supposed to weigh and measure them as such, declaring them unlawful. Doesn’t always work that way, but that’s the theory.

        Liked by 1 person

      2. You have brought up two pertinent issues. With respect to both issues, I disagree with your position. Nevertheless, I concede you have legitimate concerns.

        1. Is “unlawful” the appropriate word? I think it is. Check the definition of “lawful.” The dictionary requires us to reference the definition of “law.” Effectively, a lawful act is one done in accordance with the “law.” Hence, an “unlawful” act is one that disregards the “law.” Thus, an “unlawful law” is a law that is created in disregard for the law.

        Hence, when Congress, the President, and the Supreme Court disregard the Constitution and promulgate laws and regulations that the Constitution clearly does not authorize them to create, their laws are unlawful. And as awkward as that phrase, “unlawful law,” sounds, it is difficult to say it better. Perhaps that is because praise for an “unlawful law” should stick in our throats.

        2. Is the question, “Can a law be unlawful?,” a good litmus test to reveal whether a person leans towards Conservatism or Progressivism? I think that depends upon whether a politician is willing to answer it honestly. Since I have a Congressman who says all the right things, but is unwilling to live up to his words, I don’t expect much honesty from politicians. Hence, to establish what our leaders actually believe, I think we have to check their records.

        What if we could get an honest answer? The typical answer we will get from a modern Liberal or a self-styled Progressive is what Jersey McJones (first comment on this post) gave us. Effectively, modern Liberals and self-styled Progressives believe the law is whatever the judges say it is. These people are naive enough to like big government. Conservatives, on the other hand, fear the rule of men. That is why we insist upon the rule of law, and that’s why we fear for justice when judges rule unlawfully.

        Liked by 1 person

        1. The act of creating a bad law (the executive signing bad legislation or faceless bureaucrats writing bad regulations) may be an unlawful act, but the law then becomes, for however long, part of “the law” and cannot itself be unlawful by the word’s definition, it seems to me. No one disagrees that it is bad and should be ditched. And the selective, incremental mis-interpretation of constitutionality over the years threatens our Republic. It’s a quibble over the word, and not all that significant except for the confusion possible. Hence, I prefer “bad law.”

          (There’s a third source of bad law; court rulings. Not just SCOTUS, but local and appellate court rulings a regular makers of mistakes that do not make it to higher courts. One of these cost me, personally, millions of dollars, and it was evidently powered by very partisan appellate judges who found out I was a conservative.)

          The great majority of liberals hold that the Citizens United ruling resulted in bad or “unlawful” law, despite this holding being by the US Supreme Court. (They hate the idea of corporate “personhood” despite this notion being hundreds of years old. But unions are persons, oh yes!)

          The law is or should be whatever progressives want, and they accept only SCOTUS rulings that agree with their positions, of course. While the same charge could be laid at the feet of Constitutional conservatives, the guiding principle is not a statist utopia but rather adherence to the limited government and maximized personal and economic liberty espoused and envisioned by the Framers.

          ===|==============/ Keith DeHavelle

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      3. Hi Keith. When you copied this same comment over onto my blog (where the “Can a Law be Unlawful” article originated), I wrote the following reply…then I came over here to Citizen Tom’s and found a rich debate in progress. So I will join in here by repeating my reply:

        In the article, I specifically used the word “unlawful” — and avoided the word “illegal” — in order to stay away from the perception of tricky double-talk. The word lawful as I used it means “consistent with Western civilization’s concept in ‘free societies’ of unalienable rights and consent of the governed, where The People are above the government in the hierarchy of sovereignty.”

        In my original article, I gave a fair caution to be careful about taking my question (“Can a Law be Unlawful?”) as superficial, and to be careful about answering too superficially. I think some folks here have gotten at least one foot caught in that trap.

        Here’s why I plead NOT guilty of semantic trickery:

        You said, “ ‘Unlawful’ does not seem to be the right term. Bad, certainly, Potentially unconstitutional, all too often.” I take it you are agreeing that bills passed by Congress are often unconstitutional. Ok, so we’re on common ground there. Now let me quote from Article VI of the Constitution, adding some bold emphasis:

        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.”

        Keith, if the Constitution is the Supreme Law of the Land, then why am I “probably wrong” in using the word unlawful to characterize an unconstitutional statute? Can’t the word “unconstitutional” be fairly defined as “something which is violation of The Supreme Law of the Land” ?

        To reiterate, I didn’t use the word “illegal” — I said “unlawful” because in subsequent articles I’m going to talk more about the deeper moral obligations that our Constitutionally-sworn public servants are often shirking. Where I’m going, there are about 4 more layers below the superficial top layer of potential semantic trickery that made you suspicious. I do recognize, though, that you’ve left the door open to hearing me out. Thank you.

        I would also observe that it’s clear your (and Citizen Tom’s) greater interest is in “What do we do about it?”, and you’re not necessarily as interested in hearing the full case for why it’s morally wrong for the government to pass bad, unconstitutional, improper, wrong, inappropriate, laws. But there are a LOT of people who never even pause to question the behavior of lawmakers like I am doing. It’s them I am primarily addressing, not a studied conservative like you. Why? Because I believe that educating unsophisticated voters to question their government’s actions is THE BEST thing within my control to help “do something about it.” Clearly, the impeachment avenue that was provided by the Constitution will never seriously be used, because there’s too much political posturing and media subterfuge in the modern political arena for impeachment to be practical. So influencing moderates, independents, and new voters in their teens and twenties that they should be careful and effective with their voting power is what I’m all about….especially in this series I’m writing. I’m trying to fight against the spread of moral relativism.

        Regards (to Keith, and to all others here at Tom’s),
        – Jeff

        Liked by 1 person

      1. You make some interesting points, Citizen Tom. I tend to perceive a law as being unlawful based on the amount of force that must be used to enforce it. That’s what’s often missing from the progressive/liberal ideology, they flat out don’t seem to understand what force and authority is all about. They just want to ban things and the idea that anyone could possibly disagree with them, doesn’t even occur to them. Here in progressiville, we’ve got signs up, 6 months in jail and a 20,000 dollar fine for putting your recycling in the wrong bin, for goodness sakes. The implications don’t seem to register on their radar.

        For me it always comes back to politicians who seem to have that servant’s heart. Are they there to serve the people or their own agenda? It doesn’t matter if I agree with their agenda or not, if they believe they have the right to force it on people, it’s not about representing us anymore.

        Liked by 2 people

  3. I always understood “unlawful” meaning an act contrary to law. In other words, “unlawful” involves acts, though not illegal, which are disapproved of by the law (e.g., unlawful assembly). Unlawful and illegal are often used synonymously, but there is a subtle difference.

    Liked by 1 person

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