IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Before I move on to my general argument about the nature of law, I will take a minute to point out the obvious about the argument made above: it’s not internally consistent. On the one hand, the author asserts that we should dispense with rule of law because a) we’ve already done so on numerous occasions and b) rule of law often gets in the way of expediency. On the other hand, the author asserts that certain parts of the rule of law should be upheld. But if you’re going to appeal to rule of law, you can’t dismiss it when you disagree with it and support only when you do agree with it. That is not rule of law, it’s a desire to be a dictator.
Anyhow, the main point I’m driving at is this: the simple truth about rule of law is that it simply does not exist. Any behavior that is not successfully prosecuted is practically legal. Any behavior that is successfully prosecuted is practically not legal. Either way, it doesn’t matter what moral codes might suggest, what legislation might say, what penal codes might say, or what laws are on the books. At the end of the day, only the actions that are punished are illegal.
As such, the constitution has never truly been in effect, since its application was always dependent on its interpretation by men. Sure, the first amendment says that congress has no authority to regulate speech. However, the reality is that congress at one point passed the Alien and Sedition Acts. This behavior was perfectly legal as evidenced by the fact that no one was prosecuted for violating the first amendment, in spite of what would appear to be its distinctly clear language.
Thus, rule of law is and always has been a myth because laws cannot enforce themselves; laws must be enforced by men. Doing away with the constitution, at this point, would not be that big of a deal, because it wouldn’t fundamentally change the operation of law in America. The truth is that the law is applied by men, and those men only consult the constitution, or other governing statutes, when it suits their purpose. Fraud, for example, is statutorily illegal. Many people are arrested for this crime, but not all who are guilty of fraud end up being prosecuted (see: Sachs, Goldman). This is the very essence of rule of man, and is currently the practical system of law.
Therefore, having established that the rule of law is a myth at best, and having established that rule of man is currently in effect in the United States, it should be clear that the most logical course of action is to simply junk the constitution and end the charade of rule of law. Since we already have rule of man in place, we may as well be honest about it.