Fundamental Law- Bad Law: ARTICLE

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Bad Law and Phony Rights Tread on Rightful Liberty
by Shane Flait (2011)

The U.S. was formed to secure the unalienable rights of its citizens - as stated in the Declaration of Independence – nothing more and nothing less. The Constitution with the Bill of Rights and its further Amendments mapped out some fundamental rights and their protection from government interference. So what should Americans be aware of to maintain their liberty?

Our founding fathers understood the tyrannical laws and procedures that England had imposed on them to maintain its colonial profits above concern for the colonials Rights of Englishmen. The Declaration of Independence outlined the frustrations colonists faced dealing with England’s poor treatment of them and its unresponsiveness to their pleas.

So when founding our government, the fathers knew that bad laws – pushed by special interest groups - would occasionally be passed, because as Jefferson stated, “Experience hath shewn, that even under the best forms (of government) those entrusted with power have, in time, and by slow operations, perverted it into tyranny”.

Prevent government’s interference with (or undermining of) the rights of individuals

It’s our unalienable rights – also called fundamental rights - that are all important. Such rights are individual rights since they pertain to every individual. These include the right to life, liberty and the pursuit of happiness as mentioned in the Declaration of Independence.

Later clarifications of individual rights by the U.S, Supreme Court case law included your right to own property, to parent your children, to choose any lawful career, and more. They explicitly restrict government’s interference in your life. These rights necessarily included the right to a legal process to secure – and ensure – protection of your rights. Any law or process that interferes with your individual rights undermines your rightful liberty.

Thomas Jefferson stated, “rightful liberty is unobstructed action according to our will within the limits drawn around the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

Government Actions that violate rights of individuals

The actions that government imposes on people that violate their individual rights can generally be categorized as:

·         Bad law

·         Phony rights

·         Greater good excuse laws

All categories represent bad law, but I’ll allocate bad law specifically to laws the are vague, severe, and lack of ‘fair’ due process.

Vague law is wrong because it criminalizes people when it’s not clear just what the law means. Severe law imposes punishment far beyond the crime committed – as judged by ‘a reasonable person’.

Lack of due process violates the ‘protection’ right that government owes all of its citizens – to secure their rights unless one’s clearly proved guilty of some appropriate offense. So important is the right to a fair trial (i.e. due process), that Jefferson said, “It is more dangerous that even a guilty person should be punished without the forms of law, than that he should escape.” That’s because without the forms of law (i.e. due process), innocent men will surely be punished.

Phony rights are benefits that the government promises to people. They’re often called ‘entitlements’. I use phony because they’re not unalienable rights and their use of ‘right’ besmirches the importance of our unalienable rights.

Phony rights may be the right to adequate food and clothing, to a college education, to abortion, or a right to health care. Sadly the right to Social Security is seen as an earned benefit; but people, so far, receive generally far more than what they contributed. Government is not to be trusted for any of the benefits it promises. In the end it takes more from the people than it gives back, overall. They ultimately undermine your liberties – your right to property, including your earnings, and opportunities; they restrict freedom.   

Benjamin Franklin said, "Anyone who trades freedom for security deserves neither freedom nor security," Phony rights are proffered as a security to you; it comes at the expense of your freedom – i.e. your rightful liberty.

Lastly is government’s imposition of a ‘greater good’ excuse law that directly violates your individual rights. This is the cry of all tyrannies; that individual rights must be sacrificed for some greater good. Often, only a select faction of society ends up having their rights denied to the greater good of another faction. Propaganda goes a long way to foster its imposition. But our individual rights are the ‘greater good’.

Due process enforced ‘by the people’

Recognizing the nature of government – and their suspiciousness of the judiciary - the founding fathers insisted that defendants or litigants be tried by an informed jury of their peers to protect them against unjust laws or procedures. Some considered this more important than the right to vote.

Jefferson said, “a trial by jury is the only way yet known to man by which a state can be held to the principles of the constitution”.  John Adams insisted on an ‘informed’ jury when he said, “A juror has the right to judge both the facts of the case and the law that will be imposed”. Both statements reflect the active importance of the public – as jurors - in the judicial process to safeguard defendants against bad laws and corrupt judicial processes.

Our Ultimate Right

Let’s also remember that the Declaration of Independence also states, “whenever any Form of Government becomes destructive to these ends [i.e. securing the unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government…”.




Shane Flait is a writer and educator