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CC, the Constitution was written by men who were immersed in John Locke. Locke rejected the validity of any government that broke down on the core individual rights, the inalienable ones, life, liberty, property. He would invoke the right of revolution should the defense of those rights be abandoned. That assertion is the basis for the Declaration, and it was and is the principle objective of the Constitution to establish, and to “secure the blessings,” of a government that would consistently defend those rights, that without such a defense in place, a government dissolves to a legal nullity.

There are many evidences within the Constitution of this intended effect. To name just one, consider:

Article IV, Section 4:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Thus, the Constitution obliges the federal to ensure valid governments in the states, and on the assumption that a valid government is still in place, to provide aid upon request to suppress intrastate violence, of which murder is certainly a species.

To make it clear, the Founders would not regard any state that sanctioned genocide as a valid state, nor its laws as valid laws, whether they incur active or passive endangerment of those rights. Such a state represents an untenable absurdity in Locke’s social contract. If the whole point of the social contract is to protect and preserve individual rights (such as life) by mutual agreements that limit violence against those rights (such as murder), then the social contract is broken when that mutual protection is thwarted by the state itself.

Therefore, as a first line of defense, a statute repealing the statute against murder could be challenged as unconstitutional. One attack might be made on the foregoing Article IV grounds, especially if the repealing statute was entirely general, making it immune to an equal protection hurdle. With that fact pattern, I believe it would be a case of first impression, so it might actually fly, despite the tattered history of the Guarantee Clause. However, if a specific class of persons were targeted, such as FReepers, or the unborn, equal protection analysis would probably be more appropriate and more effective, assuming personhood of the victimized class could be established.

Still other approaches may be possible. In the event of a general repeal, and taking a purely textual approach to the 5th Amendment, the phrase:

“nor be deprived of life, liberty, or property, without due process of law”

does not spell out any distinction as to whether it is a state or private actor doing the depriving. I know what the popular opinion is, and I think I know how SCOTUS would process the claim, but the text itself is open-ended on the matter, and a valid question to put to the Court.

The 14th Amendment presses the matter even more forcefully to the states, as they acquire a duty to defend the life, freedom, and property rights of any natural person by means of due process. Though it has been crippled as to private actors by subsequent case law (DeShaney, etc.), I believe it can still be argued the 14th strongly implies a state’s obligation, not only to avoid active infractions of its own, but to avoid passive failures of duty to act against private actors attempting to kill, enslave, or rob their fellow human beings.

Furthermore, an argument for the presumption of a universal, government-independent right to life can be found in the 2nd Amendment. If there is a right to life, there is a right to defend it, by lethal force if necessary. And history suggests that the Founders did include the 2nd as an explicit continuation of a right of self-defense established during England’s Glorious Revolution. It is therefore well-grounded in an individual, inalienable right to live, and stands as the last defense against the failure of government at any level to protect that right from infringement by either state or private actors.

(In fact, in a state with no murder statute, and assuming common law murder disabled as well, governance would tend to devolve to the best weaponists, potentially leading to the demise of the original government doing the repealing. So in one sense it could be viewed as a self-solving problem: Pro-murder governments don’t last long.)

It may well be asked then, if the inferential evidence of inalienable rights is so abundant in the text, why then was the ban on slavery specifically applied to private actors via the 13th Amendment? Fair enough. I take it to mean only that time and distance make it harder for later generations to draw exactly the same inferences as the Founders. The inviolable rights to life, liberty, and property, were to the Founders so obviously the Declaration’s golden apples set in the Constitution’s frame of silver (as Lincoln later described it), that not one of them, I venture to guess, would have believed a time traveler from our period asserting that mass murder could somehow be justified within the constitutional framework they designed.

Therefore, assuming the appeal to the judiciary would fail (based on their traditional reluctance to tinker with even a faulty stare decisis – Dred Scott comes to mind), the second line of defense would be for every constitutional officer at both state and federal levels to man up and assume responsibility for acting on their own understanding of the Constitution with respect to at least this one rogue doctrine. As has been rightly said, the Constitution is not a suicide pact, especially if Locke has anything to say about it. If a rogue state legislature abandons reason and the underlying natural law principles of the Constitution, it is no excuse for those who should know better to stand by and do nothing while murder and mayhem wreak havoc with the Republic.

Which brings us to Nuremberg. In a complete void of statutory law, in the absence of any legal prohibition to the murder of millions, those who clung to their obedience to positive law (“we were just following orders”) were nonetheless held guilty by the world, and by us, with our natural law premise that no one may commit genocide without losing their validity as a government. Therefore, if a rogue state legislature should void the law against murder, and if there should be too few responsible, principled citizens within the state to prevent its wholesale departure from its duty to protect life, liberty, or property, then that state should be regarded as a collapsed and unlawful government, opening it to the full range of remedies applicable to such states.

Even so, military action is neither the first nor the only possible response to such a circumstance. Which is why it would be wrong to box someone into some kind of simplistic either/or mentality. There are too many imponderables that would only be seen clearly in the light of a specific and real fact pattern. We have already had one civil war and it wasn’t fun, and it didn’t do that well in its core mission, either, considering current racial tensions. Whereas sanctions defeated apartheid in South Africa, without offending the principle of local sovereignty, without measurable casualties, and with a more stable social outcome.

So I think the answer to your question lies in how we might reimagine our own civil war. What might we have done better or different? What would work now that wouldn’t have worked then? Who is really in charge when a government breaks the social contract, and who could issue the constitutional appeal for federal aid in suppressing internal violence? I don’t know why you think these are easy problems. They terrify me for their complexity and potential for bad consequences if handled uncarefully. Maybe that’s just me. But I do see one clear and guiding light, that whatever we do, we must be able to justify both means and ends as valid under the Constitution, and under the natural law it was designed to support as well.

Sorry for the length.