You misunderstand how it’s supposed to work.
OpenSSL does not prevent you from signing anything.  It can’t; for example,
you could use other software and generate the signature.

Instead, when the recipient gets a certificate, and verifies the chain, it
should reject the chain because the signing CA was not legitimate (pathlen
exceeded).





Hi Rich, 

following lines are copied from RFC 5280:

   The pathLenConstraint field is meaningful only if the cA boolean is
   asserted and the key usage extension, if present, asserts the
   keyCertSign bit (Section 4.2.1.3).  In this case, it gives the
   maximum number of non-self-issued intermediate certificates that may
   follow this certificate in a valid certification path.  (Note: The
   last certificate in the certification path is not an intermediate
   certificate, and is not included in this limit.  Usually, the last
   certificate is an end entity certificate, but it can be a CA
   certificate.)  A pathLenConstraint of zero indicates that no non-
   self-issued intermediate CA certificates may follow in a valid
   certification path.  Where it appears, the pathLenConstraint field
   MUST be greater than or equal to zero.  Where pathLenConstraint does
   not appear, no limit is imposed.

I assumed openssl would conform to RFC standards and therefore I supposed
that it takes care of pathlengths specified in CA certificates. 



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