When Right Action Is Illegal
What do you do when government forbids you from doing right, or compels you to do wrong? If you find the law abusive, you can avail yourself of exemptions based on the First Amendment religious free exercise clause of our federal constitution, and on other protections provided by your state constitution. You have an unalienable God-given right to do right, and government cannot compel you to do wrong. Your conscience need not be sacrificed at the altar of the state; conscience may be the expression of the Will of God, and the state must not risk offending His Will. Our government was set up in a manner that harmonizes state interests with duty to God, but with the long lapse of time the understanding has been lost. This article will reestablish that understanding, and also help you decide if your objection is based upon a duty to God. You will learn how to explain your objection in terms that government will understand. You will learn that Natural Law is the Will of God Whose sovereignty extends over government, and government cannot obstruct our obedience to Him from whose punishments they cannot protect us. God has given us free will for the purpose of learning life's lessons, and the state cannot infringe upon God's intent that we exercise free will; the role of the state is to protect society from harm, and state action cannot go beyond what is necessary to protect society. Because our system of law is based upon necessity, freedom is the rule and restraint the exception which is why this is a "free country". This legal position is unusual in that it is based upon Natural Law, and our first task is to gain an understanding of what Natural Law is.
NATURAL LAW IS GOD'S WILL
Natural Law governs and regulates all of creation. It includes mathematics, physics, chemistry, psychology, sociology, all the arts and sciences, and the laws underlying social conduct. Since these laws are created by God and subject to His Will, Natural Law is just another phrase for the Will of God. Perhaps the most misunderstood quality of Natural Law is that it is a law of justice. You always get what you deserve, you never get away with anything, you reap what you sow, effects follow from causes, and reactions follow from actions.
Maharishi Mahesh Yogi, perhaps the greatest exponent of Natural Law in the world today, explained how it works:
If you are open with a person, he will be open with you. If you want love from someone, give your love to him. If you want kind and sympathetic behaviour from someone, be kind and sympathetic to him. If you want comfort from him, prove yourself comforting. If you want admiration from others, do something to show your admiration for them. If you are sincere in giving, you receive may times over in return. The teacher learns by teaching; in obeying, the student commands the respect of the teacher. If your son is readily obedient to you he captures your heart as a natural return for his obedience. If you are kind to a child, he will respond to you; if you are harsh to him, he will revolt against you. This is action and reaction. That action and reaction are equal is a scientifically established truth. You react to someone in a certain way and he, in turn, reacts to you. If he does not react to you, then nature will bring the reaction indirectly. If you hurt someone, even if he himself does not react other agencies of nature will bring you the reaction. It is a law of nature that as you sow, so you shall reap. ... The laws of nature cannot be deceived; reaction will come. If a man is jealous of you, you will find, when you search your heart, that you have been jealous either of him or of someone else in the past. Be kind to him and to others and your surroundings will be kind to you; be loving to him and your surroundings will be loving to you. Begin to doubt and your surrounding will begin to doubt you. If you hate, surroundings begin to hate you. If your surroundings begin to hate you do not blame the surroundings; blame your own inner conscience. [The Science of Being and Art of Living, Maharishi Mahesh Yogi, MIU Press, Livingston Manor, New York, 1975, p. 96-97]
Maharishi also pointed out that, just as a mirror innocently reflects an object placed before it, so government innocently gives its constituency what it deserves. Maharishi gave the example of a king in ancient times who complained that he could not do what he knew to be right, and could not resist doing wrong. An oppressive government is just a reflection of the virtue of it's people. Thus, I do not advocate that government change it's form any more than I advocate that a mirror change it's reflection; it is perfect because effects follow from causes. When the people change, government will spontaneously change to reflect it. However, for those who perform right action and do not deserve to participate in the nation's folly, our constitution allows for exemptions.
Another important quality of Natural Law is that all the laws of nature are evolutionary. They carry all of life in the direction of more power, happiness, intelligence, freedom, and whatever may be said to be significant or valuable in life. We experience these laws within ourselves, which is why we always desire and choose more happiness, power, etc. Thus, it is God's Will that we grow. Free will allows us to violate Natural Law; theft and drug abuse which are choices for short term happiness, result in long term suffering. What gives all the laws of nature their evolutionary quality is that any violation always produces suffering, which makes you avoid doing it again. It is nature's feedback mechanism. This quality was recognized by early scholars of Natural Law:
... [T]he study of man proves that man is not only an intelligent but a free being, and he is, therefore, responsible for his actions. The judgment we form of our good actions produces happiness; on the contrary, the judgment we form of our bad actions produces unhappiness. [2 Bouvier's Law Dictionary 8th p. 1884, Law of Nature]
Certainly man is the master of his own destiny. He has free will - the greatest of God's gifts to him - whereby he has complete freedom of action. But having performed an action he has to bear its consequence, for reaction is always equal to action. [Maharishi Mahesh Yogi On The Bhagavad- Gita, Penguin Books, Baltimore MD, 1971, p. 63]
GOD'S INTENT AND MAN'S PURPOSE
Another of my teachers taught that, of all the innumerable beings in creation, only two have free will and Man is one of them. Free will is a rare and precious gift to be protected and preserved. God's intent and Man's purpose for being here on earth is to learn how to use free will by learning how effects follow from causes. All the world's problems are exactly what they should be; we created them. They are lessons in free will, and God does not intervene because this would take away our lessons.
GOD'S POSITION IN RELATION TO GOVERNMENT
Since God is out of view, government acts as if God has nothing to do with anything. Most of us have never seen atoms, molecules, germs, or oxygen, yet few of us would doubt their existence because our scientists have seem them. Similarly, there are people who can see God through their senses, just as people experience houses and trees with their senses. One of my teachers explained that the first time you see God, you see Him where you are looking; from then on you see Him everywhere. He is omnipresent, there is no place that He is not, totally spellbinding. Until we become seers ourselves, knowledge will be based on someone telling us what they see. Just because most people can't see something, whether God or atoms, doesn't mean they don't exist. Seers tell us what they see, and society honors that vision. If God is not found in common experience, He will not be accorded His status of lawmaker. Nevertheless, when we violate the laws of the lawmaker (whether God or man), we incur a penalty, and because the state cannot protect us from God's penalty, government does not have the authority to prevent us from follow ing His Will. One court said:
[A]ll acts of legislature apparently contrary to natural right and justice are, in our laws and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice. [Robin v. Hardaway, 1 Jefferson 109, 114 (1772); emphasis added]
Chester Antieau provides many citations from before Christ through the 20th century of many authors and legal scholars who regularly claimed that rulers are subject to divine law, that subjects are not bound to obey rulers who act against the laws of God and are even bound to disobey, and all positive laws must conform to the laws of God and reason [The Higher Laws: Origins of Modern Constitutional Law, William Hein & Co., Buffalo, New York, 1994].
YOUR DUTY TO GOD
Your duty to God is to learn the lessons of life you came here to learn, and follow His laws by performing actions that produce happiness in yourself and society. If the law produces suffering in yourself or others, it is your duty to disobey it; you do not have a right to cause suffering.
THE ROLE OF GOVERNMENT
Unless one speaks in terms of education, it is not governments role to prevent wrong action that causes no harm to society. We cannot learn the subtle distinctions between right and wrong unless we do the actions and experience the results. If all we ever did were right actions, our mission would be complete, there would be no purpose for being on the planet, we would be saints, and we would not be here. Nor is it necessary (though it is proper) for government to punish wrong action for the sake of justice, as Natural Law will always provide perfect justice. Since punishment (as well as reward) from Natural Law is often delayed, government has the valid authority to punish the dense minded to teach them that actions do have consequences, whenever the actions cause harm to society. Care must be exercised here, for government may end up punishing right action or oppressing free will. It is safe to punish actions that are wrong, but to punish actions that are not wrong but simply prohibited is a violation of Natural Law that will open the door to societal stress. We are here to learn how to use our free will, but not at the expense of others. The role of government is to protect society from harm by the wrongful use of free will. Government can pass any law to protect the morals, health, safety, and general welfare of society, subject to limitations discussed below. This power is technically called the "police powers." Even the protection of morals which looks like an individual matter, is a societal interest that government can protect, and traditionally under our common law has protected, including prohibitions against sodomy (which damage society's health), gambling (which creates addiction, attracts crime, and places a burden upon society), usury (whereby society is debt enslaved), interracial marriage and incest (which damage the gene pool), etc. The protection by government of individual morals is actually a protection of society, otherwise it would have no basis in Natural Law. How do we harmonize government's role of protecting society from harm, with your duty to exercise free will?
HARMONIZING GOVERNMENT'S ROLE WITH DUTY TO GOD
Your duty to God to learn how to use free will and perform action that produces happiness in yourself and society, is already harmonized with government's duty to protect society from those who abuse free will. This is because our system of law was, and still is, based upon necessity:
The doctrine that the police power is really a law of necessity forms the key, it would seem, with which to unlock the mysteries, so far as practicable, of what is within and what is without the limits of such power. [State v. Redmon, 114 N.W. 137, 142 (1907)]
Absent necessity, the state cannot restrain you from doing whatever you want; freedom is the rule and restraint the exception, which is why this is a "free country":
While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. [Wolff Co. v. Industrial Court, 262 U.S. 522, 534 (1922)]
Having a democratic (or republican) form of government is not what makes us a free country. In a democracy, the majority (or their representatives) can regulate all aspects of individual life. In a free country, the majority is forbidden from acting except out of necessity; rights yield only to necessity. Just because a police law promotes the general welfare, doesn't mean it is legitimate. A court gave an example of how an expert on healthy living could suggest good rules to follow; the temperature of the air, size of the rooms, the hours of sleeping, retiring, and rising, the amount and kind of food to eat, the number of meals, amount and kind of exercise,
... and other things too numerous to mention might be suggested for legislative interference, each with a provision for a severe penalty for its violation, with a division of the penalty, perhaps, between the informer and the public, till one would be placed in such a straight-jacket, so to speak, that liberty and the pursuit of happiness, the incentive to industry, to the acquirement and enjoyment of property, -- those things commonly supposed to make a nation intelligent, progressive, prosperous and great, -- would be largely impaired and in some cases destroyed. That such an extreme would be regulation run mad and is quite improbable, 'tis true, but it would be possible without limitations of some sort, if a police law be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort or convenience. [State v. Redmon, 114 N.W. 137, 141 (1907)]
The limitation hinted at in the above case is that all statutes and codes must be based on necessity; to go beyond necessity is a potential infringement upon the Will of the Creator. By following the necessity criteria, the interests of the state are harmonized with the intent of the Creator and individual duty to God. If we have a problem with governmental abuse today, it is because the correct application of necessity has been lost.
WHEN IS LAW BASED UPON NECESSITY?
In our system as originally designed, it was not and still is not necessary for the legislature to prove necessity. This is as it should be. It is only necessary that the law be "reasonable." It is not prudent to require the state to prove necessity because some things are unprovable or difficult to prove, and to require proof could jeopardize the safety of society. However, there is a big difference between "necessity" and "reasonable", and in order to safeguard our freedom there must be a point in which the necessity question is answered, otherwise government will eventually regulate every aspect of human behavior by using reasonable laws. I have identified three protections: the jury, supremacy of conscience, and waiver of statutory rights. The power of the jury to protect still exists, though this power has been corrupted. Supremacy of conscience under religious free exercise is alive and well, which is what this paper is about. Waiver of statutory rights is a principle unknown today, which can easily be applied once you know what it is. Next we will see how all three protections provide exemptions, as well as protect from bad law.
THE ROLE OF THE JURY
One safeguard against abusive law, or abusive application of law, is the jury. Since no written law can handle all possible circumstances, and since what is right action in one case may be wrong in another, the jury is the means whereby society determines whether a statute is appropriate to apply to the case at hand. The jury is the point at which the statute, the facts of the case, and Natural Law (as expressed or manifested in the jury's conscience) intersect. That man's law is a law of justice is only true to the extent that it conforms to Natural Law, the prime source of Justice. We have a feel for what is right and wrong, what is good and bad, what is just and unjust, because Natural Law manifests itself in our hearts and minds. Right, by definition, is Natural Law. Justice cannot occur when only facts and statute are considered; there must be a link to Natural Law in the form of the jury's conscience. In today's legal system the judge decides the law, and the jury decides the facts; the jury is not permitted to decide the law. Actually, the jury traditionally had, and still has the right to judge the law, but the judge is not required to tell the jury, and may even attempt to forbid it. The following court opinion succinctly states the situation:
"What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative [to judge the law], and approval of its existence as a 'necessary counter to case-hardened judges and arbitrary prosecutors,' does not establish as an imperative that the jury must be informed by the judge of that power." [U.S. v. Dougherty, 473 F.2d 1113, 1136, (1972)]
Thus, the only question given to the jury to decide is: "Did the accused do the act or not?" They are not told they have the right to judge whether the law is just as applied to the case at hand. Even by current rules, appropriateness of law should be a question of fact since it is dependent on the facts, and therefore within the scope of the jury. When the judge decides the law and the jury decides the facts, and appropriateness of the law is not questioned, then Natural Law, the source of justice is missing. We have had cases where jury members apologized to a defendant for convicting him. Plus, the question of necessity goes unanswered. The term for allowing the jury to nullify bad law is "jury nullification."
THE SUPREMACY OF CONSCIENCE
God's will expresses itself differently in different people, and people have different lessons to learn. As long as a person is willing to accept responsibility for his actions which tend to good order and cause no harm to society, the person must be allowed to follow his conscience. Who can say that the persons desires or conscience is not the expression of God's Will? Can the state forbid harmless behavior above God's Will? Since the state is not in a position to decide what is and is not God's Will, it must be presumed to be God's Will whenever such a claim is made. When government is limited to passing laws out of true necessity, conscience will seldom conflict with law. When a law is passed out of erroneous necessity (we know there are laws like this because of the grumbling we hear about them), government must be prepared to routinely handle exemptions. Today, exemptions are not routine; the law is crammed down your throat. But they are available.
WAIVER OF STATUTORY RIGHTS
In order to protect our rights, we must allow individuals to waive any statutorily granted rights. For example, the illegalization of certain forms of alternate cancer treatment has forced people to go to Mexico to get treatment. When a doctor and patient cannot consentually waive the protection of the law, such law becomes oppressive. The individual is made a ward of the state without power to decide what is best for himself. Individuals must be able to consentually waive rights which, if imposed, would compromise their God-ordained purpose to learn life's lessons through the exercise of free will.
IS IT GOD'S WILL?
How do you know if the act that you want to do is the Will of God and therefore subject to a religious exemption? The answer is: It doesn't matter. It might be God's Will, and that's all that is important. Let's suppose that all parties had absolutely no doubt that the act was God's Will. Would the state try to assert it's sovereignty over God? Clearly not; the state would accept God as sovereign, to whom people owe a superior allegiance. Now let's take the more likely case in which we are not sure whether the act is God's Will or not. Would the state try to assert it's sovereignty in this case? If the state did so, then, presuming that half the time it was God's Will, the state would be violating God's will half the time, incurring a penalty for doing so. Certainly we would not want to routinely violate the will or intent of Him who created us; who would defend such a position? The only way to preclude offending God's Will is to allow people to claim their exemption as long as the act tended to good order and did not harm society. While a wise state would only pass laws based upon necessity, the need for exemptions will still arise because drawing the line of necessity is difficult in gray areas. That's why we have judges. Next we will see what government looks for in an exemption to law based on religious free exercise. Government does respect the supremacy of conscience and your duty to God.
YOUR RIGHT TO THE PURSUIT OF HAPPINESS
Both state and federal constitutions protect your right to the pursuit of happiness, yet the courts have construed this right to be equivalent to the right to property:
Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. [Slaughter House Cases, 16 Wall 36, 116]
It is all right to derive the right to property from happiness, but it is wrong to transform happiness into property and thereby destroy the right. How you feel is a spiritual matter, while property is material. When government has methods that harmonize, by what theory of law can government choose methods that oppress? Since happiness results from right action, while suffering results from wrong action, the right to the pursuit of happiness is also the right to perform right action. Prohibitions or compulsions not based upon necessity will violate one's right to the pursuit of happiness.
WHAT GOVERNMENT LOOKS FOR IN AN EXEMPTION
Our founding fathers set up our laws to allow conscience to take precedence over government authority. They designed a free country, which is why laws can only be passed out of necessity to protect society from harm, and we are otherwise free to do as we please. Quoting American Jurisprudence, a legal encyclopedia:
The fundamental reason which prompted adoption of the constitutional guaranty of religious freedom was the fear of state authority over the human conscience. [16A Am Jur 2d Constitutional Law, § 471 footnote 51]
In a case on conscientious military exemption, the Supreme Court said:
The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's "Supreme Being" or the truth of his concepts. But these are inquiries forclosed to Government. As Mr. Justice Douglas stated ... : "Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others." Local boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious. But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact--a prime consideration to the validity of every claim for exemption as a conscientious objector. [U.S. v. Seager, 380 U.S. 163, 184]
Chief Justice Hughes said:
[P]utting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field." [Seager, 176]
The Chief Justice says that your practices have to tend to good order, and he argues about the supremacy of conscience within its proper field. We want to expand the field of conscience into the realm of daily life. Natural Law is not something only practiced in church. In order to qualify for an exemption to the law based on religious free exercise, your exemption must be based upon religious training and belief in a relation to a supreme Being involving duties superior to those arising from any human relation, but not including essentially political, sociological, or philosophical views or a merely personal moral code. These considerations are reserved for government. [Seager, 165]
Government defines religious free exercise in terms of duty to God, and does not want to jail people who refuse to violate their conscience or duty. When law is not in accord with Natural Law, it will cause you suffering, a kind of crying out inside yourself. This merits an exemption based on your duty to God, since suffering is the result of violation of God's will by government. Exemptions have been provided by our Founding Fathers as the remedy to this type of violation, which in other eras have been solved by revolutions and wars. The exercise of free will is not optional when the non-exercise of it causes you suffering, which makes it your duty to do it. The right to the pursuit of happiness, the right to follow Natural Law, the right to do the right thing, and the right to do the Will of God are the same right. And since individual suffering is a seed of social disharmony, it is in society's interest to keep individuals happy by allowing them to exercise these rights.
I hope this article will reestablish the underlying principles that created this once free, prosperous, and happy country in harmony with the Will of God. I hope that future politicians will find it of value in integrating the theory of Natural Law with it's practice.