The Patriot's Dilemma
Copyright © 1995 Constitution Society. Permission to copy with
attribution for noncommercial purposes
The Duty to Resist
Sooner or later most Americans take the oath: To preserve, protect, and
defend the Constitution of the United States against all enemies, foreign or
Actually, all Americans have the duty expressed in the oath by being
citizens. Taking the oath just formalizes it.
Under our constitutional republican form of government, the Constitution is
the Supreme Law. That means that it is superior to any statutes or other
official acts that may be adopted later, if there should be a conflict between
the Constitution and such statutes or acts. Indeed, any such statutes or acts
derive their authority from the Constitution, and statutes or acts not based on
it are null and void from their inception.
Under the Social Contract which precedes the Constitution, citizens have the
duty to both obey all laws that apply to their situation, and to help enforce
such laws. But if the situation should arise in which there is a conflict
between laws or acts, the citizen has the duty to resolve the conflict by
obeying or enforcing the superior law or act, especially if one of the laws is
the Constitution itself. Indeed, if the statute or act violates some right or
exceeds delegated powers, it is most likely to be a violation of law itself, and
so the duty of the citizen is not just to not obey or help enforce it, but to
actively resist it, by enforcing the law which it violates.
Under the prior Law of Agency, the citizen is responsible for the acts of
his agents, including their abuses if he fails to take action to correct them,
and under the Social Contract, he is personally responsible for resolving legal
conflicts and for the legal decisions he makes. Therefore, he cannot delegate
the responsibility for making such legal determinations to others, such as
judges, superiors, or legal advisors. He has the duty to make an independent
determination of the constitutionality of any law or act with which he my become
Varieties of Unconstitutionality
There are several ways in which statutes or other official acts may be
- (1) It may be contrary to a right guaranteed under the Constitution.
- (2) It may not be based on one of the powers delegated to the government
under the Constitution.
- (3) It may violate the provisions for the structures and procedures of
government, such as the delegation of legislative or judicial powers to an
executive agency in violation of the separation of powers principle of the
- (4) It may neglect to perform some duty imposed under the Constitution.
- (5) It may involve the operation of government outside its constitutional
- (6) It may not be applied in the way it was intended by those who wrote and
adopted the original act.
- (7) It may be vague or incomprehensible to the people who must obey or
- (8) It may have been intended to be applied selectively, or have come to be
applied selectively, in violation of the equal protection provision of the
Constitution that all laws must be applied uniformly.
- (9) Proper notice of the law or act may not have been given in a way that
would allow people subject to it to become aware of it.
- (10) The aggregate of laws or regulations may become so burdensome that it
becomes unreasonable for everyone subject to it to be sufficiently familiar with
it to comply with all of it.
- (11) It may have never been properly adopted, or due process may not have
- (12) Information needed to make a proper determination may have been
withheld or distorted in a way that is intended to mislead or which has that
effect through negligence.
The Magnitude of the Conflict
Now, when the conscientious patriot surveys the present state of statutes,
regulations, judicial decisions, executive orders, and other official acts, he
finds that the body of such acts which is incompatible with the Constitution is
vast. Major bodies of legislation and entire federal agencies and their
operations are unconstitutional. Yet they are being enforced, and that
enforcement backed by the entire power of government. What is worse, most of the
people are unaware of this conflict, or unconcerned about it. Too many people do
not place enough emphasis on compliance with the Constitution.
Is it the Patriot's Dilemma, then, that he is obligated by his oath to not
only not obey or help enforce major areas of governmental activity, but to
actively resist it by all available means? No, his dilemma is that there are so
many matters on which he is obligated to resist that he does not have the
resources to fight all the battles. It is all too easy to expend all his
precious resources on less important matters, and thereby neglect the more
important ones. Just as a warrior must sometimes make a tactical retreat,
yielding territory in order to preserve his ability to fight and win more
important battles, so must the patriot also make some strategic and tactical
decisions about which battles are important, and which must be temporarily
This dilemma also causes disagreement among patriots about which battles to
fight and which to retreat from, leading to divisions and accusations of
betrayal if some of the battles are considered important by some patriots. For
patriots to be effective in restoring constitutional government, they must unite
and agree on priorities.
The following are some guidelines for deciding priorities.
- (1) High priority must be given to developing and maintaining unity,
organization, and communications among patriots. We can't do anything else if we
are not united.
- (2) We must develop and maintain the physical means to defend our rights
and enforce compliance with the Constitution. The most important parts of that
are weapons, local militias, and communications systems.
- (3) We must educate the public to the problem and its importance, and
thereby increase the numbers of activists and the level of public support. One
way to do this is to bring it to the attention of the public and public
officials at every opportunity, and make it an issue in election campaigns.
- (4) We must focus on those mechanisms by which official corruption and
abuse can be investigated, exposed, and prosecuted. This mainly means grand
juries and public access thereto, public access to official information and
exposure of misconduct concealed by improper secrecy classifications, and public
access to the mass media and the means to propagate such exposures.
- (5) We must focus on those officials with primary responsibility for
criminal investigation at the local level. This mainly means elected sheriffs,
constables, judges, and prosecutors.
- (6) We must get constitutional judges and sheriffs appointed or elected at
all levels, and get rid of those who are not.
- (7) We must make sure elections are conducted honestly, such as by
insisting on paper ballots and public counting of them.
- (8) We must make sure trial juries are fully informed of their right and
duty to judge the law as well as the facts in a case.
- (9) We must improve the quality and depth of constitutional education in
the public schools, colleges, and law schools, and the attention given to
constitutional issues by the media.
- (10) We must work for measures, such as public financing of election
campaigns, which might make candidates less dependent on special- interest
- (11) We must take over both major parties, beginning at the local level,
replacing establishment figures with constitutionalists, with the focus on the
- (12) We must work to repeal unconstitutional legislation, based on their
unconstitutionality and not just on our policy preferences, and to reduce
funding for unconstitutional federal activities if we cannot completely
- (13) We must be prepared to support some constitutional amendments to
delegate powers to government for which a consensus has developed.
- (14) We must identify excessive, unbalanced, and unchecked concentrations
of power in both the public and private sectors that need to be reduced,
balanced, or checked. We need to establish better mechanisms to make officials
accountable, especially law enforcement officials themselves, through
independent institutions with powers to investigate and prosecute them.
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