Conscience and the Constitution

This is a bit of a rambler, so stay with me.

Ace asks in another post: "So the certainty I seek is on this question: what is the standard of conscience or the legal test of enmity with the Constitution? I suspect the definition of a foreign enemy is relatively simple, but what of a domestic enemy? What must one do to qualify as a domestic enemy of the Constitution?" Then further: " So what is the relationship between the oath taker and a domestic enemy of the Constitution? In other words, what is the duty of one who has sworn this oath?"

What's happened between the two posts above is that the question changed slightly. I answered the first by stating that a domestic enemy was someone who attempted to subvert the proceedings or authorities of one of the three branches of government. Ace then got to the heart of his question, which is what should one (duly sworn to defend the Constitution) DO if they feel they are witnessing the activities of a domestic enemy of the Constitution.

The first thing to keep in mind is that individual citizens, while certainly charged with bringing to the attention of competent authority transgressions that they believe rise to the level of threats to the Constitution, are not competent authority. Those determinations get made elsewhere. If found within the legislative branch, they are adjudicated in the judicial (and to some extent legislative) branches. If within the Judicial, the legislative and judicial branches apply, and if within the Executive, the same.

Keep in mind--simple transgressions of the law are only tangentially unconstitutional, and do not make up "threats to the Constitution" except through a tortured reading. Yes, breaking and entering/larceny 1) violate privacy (a dubious constitutional right) 2) violate property rights and 3) violate laws made by legislatures with duly constituted authority to do so. But breaking and entering is NOT a threat to the Constitution. A state which seeks to decriminalize breaking and entering would be threatening that document.

Which brings me again to the subject of competent authority and duty. Should someone sworn to uphold the Constitution find conduct threatening to that document, they should seek to alert the mechanisms of competent authority to adjudicate such conduct, in a manner consistent with the gravity of the charge and their responsibility to the Constitution.

Young CW wrote about this ten years ago during the Clinton/Lewinsky mess, in an editorial printed in the Washington Times. In it, I responded to a Marine Corps Major who had been publicly calling for the impeachment of the President--presumably someone who had 1) taken the oath and 2) believed to be responding to threats to that document. Major Rabil likely believed he was upholding his oath--I took issue with that assertion. There were mechanisms available to him--communication with his Congressman, discussions with the US Attorney's office--yet the one he took, a broadside in a major metropolitan newspaper--was improper.

Long and rambling yes, but key take-aways are 1) breaking the law doesn't represent a "constitutional" threat 2) constitutional crimes have constitutional adjudication mechanisms and 3) those who find "unconstitutional" behavior should bring it to the attention of legitimate authority.

And so--let's look at an example, shall we? Let's look at the "is PEBO a natural born American citizen?" First question--Is this a Constitutional question? I think the answer is obviously, yes. Second question--are there leg imitate mechanisms for determining A) the basis of this charge and B) pursuing its endgame through appropriate adjudicating authority? The answer to both is also, yes. Finally, have the appropriate authorities been informed? The answer is also, yes. Suits have been filed, the process is working.

Let's move now finally to the "special" case of someone in the military--someone sworn to defend the Constitution but then also now a protector of the military's unique relationship with modern US political society. What should he or she have done in the case that they "uncovered" the conduct? I would answer--follow my three step process above.