CONSTITUTIONAL CONVERSATIONS
What Law Governs Us?
by
M.E. Boyd, Esq., “Miss Constitution”
What is clear in listening to several Congressional hearings is that some of the members of Congress are cavalier about the law. Perhaps they simply do not know the law that governs the country. Let’s go over what it is.
Our society is governed by what I call “bundles” of law. There are four bundles. The first (only because it is the most common) is POSITIVE LAW and includes all Constitutions, statutes, ordinances, administrative rules, and common law (judicial decisions of English, colonial, and state courts). Positive law is what most people think of as “the law” and is enforceable with penalties and punishments by states, localities, and the federal government. The United States Constitution is the Supreme Positive Law in the land – Article VI, United States Constitution, any state law or judicial decision notwithstanding.
There is also MORAL LAW, or how we as a society define right and wrong. We have to decide what is right and what is wrong to create enforceable positive law that comes with penalties for ignoring or disobeying. Military law, for instance, is a type of positive law with very strict penalties but it, too, is undergirded by what is right and what is wrong. Orders by commanders must have a moral component even though the purpose of that order or orders results in death and destruction. It cannot be wanton death and destruction. It cannot be death and destruction for the wrong reasons. Sometimes a soldier simply refuses to obey a military order thought morally wrong as, technically, repugnant to his or her conscience. Refusing to serve in the military as a conscientious objector is upheld, if sincerely felt, by the Supreme Court of the United States. Many Quakers were conscientious objectors. Our notions of what is right and what is wrong are founded in the tenets of our Judeo/Christian heritage. Those new to our country pledge allegiance to this law although they may be of other religious or philosophical persuasions. In other words they must follow our law even though the basis for it is not part of their belief system.
Then there is NATURAL LAW – the law that undergirds the Declaration of Independence of 1776. We, as a society, agree that all people are equal relative to status (no birth-right aristocracy); that as living beings God has endowed us with unalienable rights that no government can touch – life, liberty, and the pursuit of happiness. Natural law tells us that God is organic to our culture and that to maintain personal liberty and pursue our own way governments are instituted to serve this purpose. The Supreme Court has recognized that God is organic to our nation even though we have no established or official national religion following the constraints of the 1st Amendment to the United States Constitution. The Founders rejected theocracy.
We also agree as a society that all people are equal relative to positive law. This means that the Hollywood star; the corporate CEO; the prominent politician; the five-star general; a beloved personality; are subject to prosecution and punishment for ignorance of or disobedience to positive law then on the books. It also means that everyday people are subject to equal protection under the law that the well-connected and famous enjoy. We know, of course, that the enforcement and protection of positive law is uneven and it has been an ongoing struggle to make the phrase “equal protection of the law” a reality in our country. NATURAL LAW is not enforced the same way positive law is enforced but it is nevertheless a critical bundle of that which we have a duty to honor.
Finally, there is UNWRITTEN LAW. This is the law of courtesy, comity, and good will. It is enforced by others speaking out; by admonishment; by shaming; by not laughing at certain jokes; by example. Unwritten law asks all of us to be tolerant and polite and respectful of ourselves and our fellow citizens. This law is the lubricant for our society and is crucial for the smooth running of our social order. The rude, the tactless, the defaming remarks I have heard from members of Congress in hearings before them are not proof of their intelligence they are proof of their unfitness. The Kavanaugh hearings were a disgrace in this regard and the Barr hearing was little better. This bundle of law will continue to be broken until WE THE PEOPLE put a stop to it. The President also has a duty by his own choice of words to set an example for all Americans regarding this bundle of law.
Courtesy and good manners must be taught in every home, in every business, in every church, temple, or mosque, in every school, law school, and university, and must be practiced by every public servant, by every parent, by every child, by every teacher, and by every business and sports person. Rude speech is not free speech under our Constitution it is simply a violation of unwritten law. It has no legal protection. It is outside the bounds of our civil society. Obscenity is also outside the bounds of civil speech.
Many Americans have never been taught the four bundles of our law and their meanings. It is apparent to me that some of our elected officials have not been taught them either.
Copyright©2019 M.E. Boyd, Esq., Miss Constitution
