Legal Obedience
What laws are we morally obligated to obey? Help with the answer can be found in "Economic Liberty and the Constitution," a 66-page pamphlet by Jacob G. Hornberger, founder and president of The Future of Freedom Foundation.
Hornberger offers a hypothetical whereby Congress enacts a compulsory church attendance law that requires children to attend church service each Sunday. Parents are penalized if their children fail to comply. Would there be any moral or constitutional legitimacy to such a congressional mandate? The law would be a clear violation of one's natural, or God-given, rights to life and liberty. As to whether it would be constitutional, we have to see whether mandating church attendance is one of those enumerated powers of Congress found in Article 1, Section 8 of our Constitution. We'd find no such authority. Our anti-federalist Founding Fathers didn't trust Congress with religious liberty, so they sought to protect it with the First Amendment to explicitly deny Congress the power to mandate religious conduct. Suppose there's widespread popular support for a church-going mandate and the U.S. Supreme Court rules it constitutional; do Americans have a moral obligation to obey the law?
You might say, "Williams, while there are gray areas in the Constitution, the U.S. Supreme Court would never brazenly rule against clear constitutional prohibitions!" That's nonsense. The first clause of Article 1, Section 10 mandates that "No State shall ... pass any ... Law impairing the Obligation of Contracts." During the Great Depression, the U.S. Supreme Court upheld a Minnesota law that restricted the ability of banks to foreclose on overdue mortgages, thereby impairing contracts made between lender and borrower. To prevent this kind of contract impairment — routinely done under the Articles of Confederation — was precisely why the Framers added the clause.
Another, perhaps more egregious example of the Supreme Court's impairing contracts came during President Franklin Roosevelt's New Deal, when the government nationalized gold and made it a felony for any American to own gold. Not only was gold ownership made illegal but it nullified all "gold clauses" in private and government contracts. Writing contracts in gold was a way people protected themselves against government theft, namely inflation. The Supreme Court upheld federal nationalization of gold and nullification of gold contracts in the famous Gold Clause Cases. Today many Americans have turned to gold, driving its price to an all-time high, as a safeguard against what they see as pending inflation. Here's my question to you: If Obama and Congress enacted a law demanding that you turn in your gold, would you be morally obligated to obey such a law?
Decent people should not obey immoral laws. What's moral and immoral can be a contentious issue, but there are some broad guides for deciding what laws and government actions are immoral. Lysander S. Spooner, one of America's great 19th-century thinkers, said no person or group of people can "authorize government to destroy or take away from men their natural rights; for natural rights are inalienable, and can no more be surrendered to government — which is but an association of individuals — than to a single individual." French economist/philosopher Frederic Bastiat (1801-50) gave a test for immoral government acts: "See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime." He added in his book "The Law," "When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law."
After reading Hornberger's "Economic Liberty and the Constitution," one cannot avoid the conclusion that the liberties envisioned by the nation's founders have been under siege, trivialized and nullified. Philosopher Johann Wolfgang von Goethe explained that "no one is as hopelessly enslaved as the person who thinks he's free." That's becoming an apt description for Americans who are oblivious to — or ignorant of — the liberties we've lost.
Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.
COPYRIGHT 2011 CREATORS.COM 
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6 Comments | Post Comment
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I find myself wanting to tell political candidates as they offer their answer to all the problems of the world: Most of this is NOT THE GOVERNMENT"S JOB!!!
Comment: #1
Posted by: partsmom
Mon Aug 22, 2011 8:29 AM
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The liberal gun grab will ultimately fail even if they mandate (like England and Australia) that the people turn in all their guns. It goes to the citizen who must break the law to protect themselves against "law breakers'. Many people were wise to the tactics years ago concerning registration moving on to banning of certain guns. Nothing does more to defend our 2nd Amendment rights as the "Arab Spring" (protection to citizens against radicals and government), illegal immigration, and home invasions (which have become more popular with the influx of illegals). Australia and England are particularly wake-up calls due to their policies on immigration and failed muti-culturalism.
Just a comment and a great column. Keep up the good work and I wish more people had access to your writings!
Comment: #2
Posted by: Charlie
Tue Aug 23, 2011 10:45 AM
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Professor Williams, your writing is an inspiration, always. Bastiat, and Hazlitt, are also great sources to refute the fallacies of statists.
Charlie, Australia did the gun grab under the Howard government, an opportunistic agenda that sucked in only the law-abiding citizens. But there was enough of the old ocker spirit to prevail somewhat. I think the fact that the crims paid no attention helped. Now, different states, and different laws but if you jump through enough hoops -- and don't mind the exorbitant fees -- you can legally own firearms again. It took me two years to succeed.
Gold ownership hasn't been hit yet, but there is a dormant clause in the Banking Act of 1959 that, if initiated, would be an FDR redux. Not common knowledge. There is no limit to the perfidy of governments.
(And what webmaster in his right mind would choose poor contrast and small fond for comment boxes?!)
Comment: #3
Posted by: Novista
Tue Aug 23, 2011 8:24 PM
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Professor Williams, another outstanding article. In reading the comments I became aware of something that I had not previously noticed. Your writings attract comments and commentators of high intellect (Myself possibly excluded). This is in contrast to the comments found on the pages of other journalist.
Comment: #4
Posted by: William H. Howcott
Wed Aug 24, 2011 1:56 PM
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Professor Williams refers to "... one's natural, or God-given, rights to life and liberty." Why do people conflate the natural rights theory of the law with its potential justification in a religion? As Judge Andrew Napolitano noted on his Freedom Watch program, there are people that are not religious who espouse the natural rights theory of the law (cf. legal positivism, which is regnant in the American legal system today) .
An individual has a natural right to life because of the nature of life. Life is a process of self-generated and self-sustaining action, so that any individual life-form must have the freedom to act as necessary to survive and thrive--else it dies. But an individual human being, in order to survive and thrive, must live in a society. This permits the members of the society to engage in a social system of production of the values necessary to survive and thrive. This social system of production entails trade and specialization, leading in turn to potentially ever-higher levels of productivity and the concomitant ever-higher standards of living.
All other individual rights are merely elaborations of the individual's right to live. A society requires a government to secure individual rights; but in order to do this, a government must be able to employ overwhelming physical force against individual members of the society and their nongovernmental associations. This means that, although the government's function is to secure individual rights, the government is potentially the greatest violator of these rights. To discourage such malfeasance, the society must take great care in constituting a government--structuring and empowering the government in a manner to preclude the government's violation of individual rights. Of considerable help in this effort to constrain the government is the general recognition in the society of the individual's right to liberty.
The right to liberty is the individual's freedom to act without any governmental restraint except as necessary to permit the government to secure individual rights generally. The general recognition of this right to liberty, as well as the right to pursue happiness, is a powerful inhibition against the government's violation of individual rights. Happiness is the natural reward of life--the motivation for the effort to live, and the general recognition of the individual's right to pursue happiness emphasizes that the individuals under jurisdiction of the government are not servants of the government or any association that the government may claim to be an agent of.
Finally, the right to property is the freedom to acquire, possess, use, and dispose of one's work product and that which is acquired in trade therefor. This is an elaboration of the right to live, as are the rights to liberty and the pursuit of happiness.
Whether man is the product of a supernatural being that endowed man with characteristics entailing natural rights--i.e., the freedoms to act as necessary to survive and thrive according to man's nature--or man is a product of natural evolution that endowed man with characteristics entailing natural rights, either way, natural rights are inherent in man's nature.
Comment: #5
Posted by: Terry D. Brown
Wed Aug 24, 2011 5:45 PM
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Mr. Brown, you wrote “Why do people conflate the natural rights theory of the law with its potential justification in a religion?”
Believers see our Creator as a religious entity and it is from our creator that all things emanate. The existence of a creator is simply the recognition that everything must have a beginning. A creator, by definition, is able to bring into existence that which did not exist in the past, does not exist now, and would not have existed in the future. Within these qualities lies the ability to self create.
And so, there are two possible answers to the question, “Where did it all began?” Answer 1, “I don't know” which is a non-answer, and answer 2, “A creator”. The thesis of a creator is perfectly consistent with all that we see around us. And so, as long as alternative 2 is not dis-proven, and in the absence of any other competing alternatives, we do as science has always done; we accept the only remaining rationale alternative. We accept that it all began with our Creator; mass, energy, space, time and yes our natural rights.
Here in lies the connection that believers see between our Creator, believed for obvious reasons to be a religious entity, and our natural rights.
Comment: #6
Posted by: William H. Howcott
Wed Aug 24, 2011 8:15 PM
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