Principles of constitutionalism: malum in se versus malum prohibitum

Renew America ^ | April 28, 2015 | Tim Dunkin

[Yashcheritsiy]

In previous essays in this series, I have tried to emphasize that genuine constitutional republican government rests upon a foundation of the rule of law, which restrains government to fulfilling only certain, constitutionally-defined roles. Within legitimate governments, these roles are, in turn, defined by the principles of natural law and should serve to reinforce, rather than to undercut or overrule, the natural rights of the citizens. Our American Constitution was designed by our Founders to operate within this system of limits upon the power of government, as were the governments of the several States through the constitutional stipulations that each State shall be guaranteed a "republican form of government."

One concept that is of great importance to all of this is the distinction made in law between laws that find their basis in malum in se and those which are grounded as being malum prohibitum. These concepts are really quite simple, and correlate quite well with the principle of natural law as a basis for right legislation and government.

Malum in se is a term which means "Evil in itself." It is referring to laws which forbid those things which are, or at least should be, understood as being inherently wrong by any reasonable person who is sound in mind and morals. For example, any reasonable person understands that murder, rape, theft, and other offenses against the person or property of another are wrong. In pretty much every human society that has ever existed, there has been at least a dim awareness of the evilness of these things, no matter how debased and degraded a primitive society might have become. The near-universality of the recognition that murder or robbery are evil points to these being wrong by nature, i.e. that natural law, not just human legislation, affirms the inherent wrongness of them, as is doubly affirmed by the revelation of the God who created nature and sets its laws in motion.

On the other hand, malum prohibitum refers to the legal principle that something is wrong because legislators have said that it is wrong, and have legislated against it. Yet, there is no outstanding natural law reason why the prohibited act or object is inherently wrong. It is wrong only because "society" has said so. Nearly all of the laws that exist in the United States (and indeed, across the entire world) are of this type. There is, for instance, no natural law reason for why removing an arrowhead from a natural park is inherently wrong (yet it is illegal, and indeed quite severely punished, under U.S. federal law). This act is only "wrong" because U.S. federal legislators, at the instigation of environmentalists and other special interest groups, have declared it to be so, and have said that the government will punish those who do so. Yet there is no impelling reason why it would "naturally" occur to any reasonable person why this should be.

These legal principles intersect with the principles of constitutionalism in that they directly affect the size and scope of any government, and therefore will play a large role in determining whether any government is being confined within a natural law-rule of law system, or whether a government is acting on an arbitrary, ad hoc basis as determined by a commitment to legal positivism.

It can fairly be said that our Constitution, to the extent that it even involves itself with criminal or regulatory law, assumes that laws will be based upon the principle of malum in se. Pretty much the only crime that is actually mentioned in the Constitution is that of treason – which any reasonable person recognizes is an offense against God and man, and therefore against natural law. The rest of what can be said from the Constitution must be drawn from the negative evidence of silence. Congress is nowhere granted powers to create the sort of malum prohibitum types of laws that constitute the vast majority of our present legal code. Unenumerated powers not granted to Congress nor denied to the States are reserved to the States, or to the people themselves. But even then, this should not be understood as granting the States carté blanche to expand their governments to as totalitarian a reach as they might desire. Article IV, Section 4, among other things, guarantees each State a republican form of government. For the founders, the term "republican" meant much more than just that a government holds elections and makes a show of giving the people a voice. It means that a government operated under principles of limited, constitutional government confined by the rule of law and natural law. If it did not have this, then it was not a "republic," but a "tyranny."

Essentially, neither the federal government nor the State governments are free to infringe upon the natural rights of their citizens. This infringement nearly always takes the form of malum prohibitum types laws. Yet, constitutionally speaking, no government in the American system can legitimately ban you from growing food in your own garden and giving it to your neighbors, ban you from producing unpasteurized milk, ban you from using your own property because it has been declared a "wetland," ban you from building on your own land, force you to bake a cake for anyone else, ban you from owning weapons or defending yourself, or any of the tens of thousands of other things that are found in the various State and federal codes. As our Founders intended, our Constitutional system was to affirm freedom by simply not giving government the power to pick it apart through a myriad of little regulations and prohibitions. As I said, this applies also to the State governments – the 10th amendment does not serve as a nullification of the 9th.

The question then naturally arises – should governments act to ban everything that may legitimately fall under the banner of malum in se? I dealt with this question a few years ago when I discussed natural law versus natural lawlessness, and noted that not everything that can be said to be morally wrong, according to revelation and to natural law, should necessarily be the object of government action. This is because, as is often the case with governments created by men, the "good intentions" of banning something bad ends up creating a worse evil by providing the inroads to infringe upon the natural rights of the citizenry.

The examples of this par excellence are laws prohibiting drugs. Our nation is in the grip of a "War on Drugs" that has not stopped the use, production, or importation of narcotics one little bit, but has instead increased them as the black market makes them more lucrative, hence increasing the drive to produce and sell them (some wags have observed this and suggested that we next declare a "War on Jobs" and "War on Prosperity" to see if we can get the same effect). What the "War on Drugs" HAS been singularly successful at doing is to provide the government and its agents all kinds of excuses for overthrowing and destroying our constitutional rights. Because of the "War on Drugs," agents of the state are now allowed – for "public safety" reasons – to pull people over and search them without a warrant, set up warrantless roadblocks and checkpoints, engage in warrantless no-knock raids, confiscate property on the basis of accusation only without a conviction, collect DNA swabs without a warrant, and so forth – all things that any person with the least little bit of common sense would understand to be violations of our 4th amendment rights. The same reasons are also used to restrict gun rights, undermine our rights to a trial by a jury, and even our rights to not have to allow agents of the state to invade and "take over" homes to use as bases for "drug stings" (i.e. violating that almost-forgotten 3rd amendment).

Are drugs immoral? Sure, no doubt they are. Does someone have a "natural right" to partake of them? No, not really. Is banning them worth the inroads to big government that are opened up against our natural liberties? Certainly not. Even in matters in which natural law is legitimately concerned, it is better to err on the side of liberty, rather than "security." This is especially the case when we consider that, as I noted at the beginning of this series, the Constitution should take precedence over any and all subsidiary laws, regulations, or other acts of government.

And that's really the point to the discussion of malum in se versus malum prohibitum – law, as a principle, should acts to affirm and support natural liberty, rather than oppose it. The latter type almost never does this, while even the former can form a springboard for big government if not closely watched and carefully crafted. Our constitutional system was set up to limit government at all levels from invading the liberties of the people with the sort of regulations and prohibitions that found no basis in natural law and which most reasonable people would understand to not be infringements on their rights. Nobody has the right to murder someone else or steal from someone else, and it's patently ridiculous to claim as a defense that you do – but it's not at all apparent why citizens should have to apply for permits to build a barn on their own land. Our Constitution, if followed, would answer questions like that by simply preventing the government from such non-natural intrusions, as would any constitutional system that similar sought to affirm and protect the natural liberties of its people.

[gattaca]

bmp for later

[ripley]

What a wonderful smorgasboard of food for thought.

IMHO

[spodefly]

I read every article that has Latin in the title ...