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Author Topic: The Scope of Oath Keeper Resistance  (Read 1424 times)

Basil Fishbone

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The Scope of Oath Keeper Resistance
« on: November 21, 2012, 01:45:17 pm »

Modified from The Oath Keeper, July 2010

The Scope of Oath Keeper Resistance

By Don Doig

Should Oath Keepers at this juncture go beyond the 10 Points to refuse to enforce any law or engage in any enforcement action or military action which is in clear violation of the Constitution?

I maintain that Oath Keepers should, having studied the Constitution, stand down right now where their own independent judgment and knowledge informs them that their actions would violate the letter or intent of the Constitution. Huge masses of laws are null and void because they are in violation of the Constitution. If something is not specifically authorized by the Constitution as a function of the federal government, the government has no authority over it.

I know this is more easily said than done, and perhaps it will be necessary to prioritize, but Oath Keepers should be fully aware of the constitutional issues involved with their actions.

“The particular phraseology of the Constitution of the United Sates confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.” ~John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802.

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute no been enacted.

“Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. …

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
American Jurisprudence, vol. 16, 177.

Perhaps the distinction should be made between malum in se laws and malum prohibitum laws.

“Evil in itself. An offense malum in se is one which is naturally evil, as murder, theft, and the like; offenses at common law as generally malum in se. An offense malum prohibitum, on the contrary, is not naturally an evil, but becomes seen as such in consequence of its being forbidden; as playing at games, which being innocent before, have become unlawful in consequence of being forbidden.”

Malum prohibitum laws are generally unconstitutional, particularly at the federal level, where the federal government has attempted to insert itself into state and local matters. Our traditional common law dealt with malum in se laws, and the Constitution was built within the common law framework and I believe it is these laws that Oath Keepers should enforce.

If the government only concerned itself with common law it would be much smaller and less intrusive and more in alignment with what the Founders intended.

Americans have several peaceful ways to resist unconstitutional and unjust laws. One is the traditional power of jury nullification, in which people sitting as jurors have the power to judge not only the facts of the case, but the merits of the law itself. If a law is unconstitutional in the judgment of the juror, an Oath Keeper juror would nullify the law and refuse to convict. See for more information.

Another is the power of the state legislatures and governor, representing the people, to nullify federal law. See and

Those who have taken an oath to obey and protect the Constitution in their official duties, should assume the responsibility to study the Constitution and make independent judgments about what they have been asked to do. How many federal and state laws are unconstitutional? What proportion? I think it has to be very high.

Certainly the laws in need of nullification or widespread refusal to enforce them would go well beyond Oath Keeper's 10 Points, which are illustrative of a worse-case scenario involving martial law. Our nation is being destroyed from within by the corrosive effects of thousands of bad laws. We the people can no longer assume that the federal government, and the financial powers behind the scenes, have the best interests of the American people at heart and will act to serve our interests, within the limits on federal power established by the Constitution.

In the end, it is one's independent judgment as an Oath Keeper that will have to answer the question, is my peaceful resistance to this tyranny justified in this particular instance?
« Last Edit: November 21, 2012, 09:09:47 pm by Basil Fishbone »
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