Posted on 03/13/2005 10:22:40 AM PST by P_A_I
In a constitutional republic, the constitution is the supreme law, superior to all other public acts, whether by officials or private citizens.
Any statute, regulation, executive order, or court ruling which is inconsistent with that supreme law and not derived from it is unconstitutional and null and void from inception.
There are several ways in which statutes or other official acts may be unconstitutional:
It may be contrary to a right guaranteed under the Constitution.
It may not be based on one of the powers delegated to the government under the Constitution.
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 Constitution.
It may neglect to perform some duty imposed under the Constitution.
It may involve the operation of government outside its constitutional jurisdiction.
It may not be applied in the way it was intended by those who wrote and adopted the original act.
It may be vague or incomprehensible to the people who must obey or enforce it.
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.
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.
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.
It may have never been properly adopted, or due process may not have been practiced.
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.
An unconstitutional statute is not a law, no matter how vigorously it may be enforced. Enforcement does not make what is enforced the law. What is enforced is a regime. In a constitutional republic, the law and the regime should coincide. If they do not, the regime is not law but anti-law.
Whenever any person is confronted with a situation in which two or more official acts are in conflict, he has the duty to know which is the superior one, and to obey or help enforce the superior one, which, if one of them is the constitution, means to obey or help enforce the constitution. This duty cannot be delegated to another person: not to a superior, a court, or a legal advisor. It is not a defense that one was ignorant of the law or just doing one's job or following orders. This is sometimes called the Principle of Nuremberg.
The judgement of the consistency of an official act with the constitution is called constitutional review. When this duty is performed by a judge, it is called judicial review. It is not a power of government but the exercise of a duty of citizenship.
Each level and jurisdiction of government has been delegated the power to punish as crimes the deprivation of constitutional and civil rights of persons by agents of government, and some governments the power to punish deprivation of rights by individuals not agents of government.
Statutes to implement those powers have been enacted in almost every jurisdiction, and they cover almost every such deprivation.
Any act performed by an agent of government which is unconstitutional is illegal, and while performing that act the person ceases to be an agent of government or to have any official status, regardless of what trappings of office or color of law he may project. It is also almost certainly a deprivation of the civil rights of someone, and therefore also a violation of one or more of the constitutional criminal laws against doing so.
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There are no "implied contracts" involving government as a party. A constitution is the entire agreement among the citizens, and no benefit received by any person from government legally obligates that person to make any payment therefor, except through constitutional taxes and fees, nor is any person legally obligated to account for any such benefits, or to be subject to penalties for perjury or fraud for misstating such benefits.
Conversely, neither is government legally obligated to provide some minimal level, quality, or distribution of benefits to persons, other than according to constitutional laws.
No level or branch of government has the power to impose criminal penalties, such as deprivation of life or liberty, for violations of civil laws. Only deprivations of property or privileges may be imposed for violations of civil laws. Persons may not be imprisoned for failure to pay a fine unless the offense is criminal and a criminal penalty is authorized for that offense.
No judge may imprison a person for contempt of court unless the constitution delegates the power to do so and a criminal statute authorizes it.
The jurisdiction of a criminal offense is determined by the location of the offender's head when the offense was committed, not by the location of the effects of the crime. The crime is the mental act, not the outcome.
No treaty or compact may contain effective provisions which would require agents of government to exercise powers not delegated to them under the constitution of their jurisdiction. As agents of the people, they may not make powers they do not have elements of any treaty or compact, and no such treaty or compact may confer on them any new powers within the territory of their jurisdiction.
Statutes passed with the intent that they not be enforced uniformly, but at the discretion of law enforcement agents, are unconstitutional.
They violate the Constitutional requirement for equal protection of the laws, and constitute an unconstitutional delegation of legislative authority to executive officials.
The appropriate exercise of the powers delegated in the Constitution is not discretionary, but represent positive duties, and the failure to exercise such powers appropriately constitute violations of the Constitution.
It IS sad when 'Political Correctness' is valued over free speech in a society.
The Federal Gov't is the subject of the Constitution.
So are the States. Many restrictions on State powers are in both the body & the amendments to the Constitution.
The States created the Federal Gov't to perfect the Union and power flows upward from the States.
And power flows upward to State/local/fed governments from the people.
The idea that a State may not enact something that appears to go against the Constitution is bogus, since it may not affect the interests of the Union at all and would be allowed.
Yep, -- and any State enactments that "go against the Constitution"s protections of individual rights are also bogus, --- Agreed?
Thanks
Isnt one reason that you have a Supreme Court to reverse bad "actual case law" that contravenes your Constitution? Whether it DOES that is another question; I've often wondered why the High Court seemingly AVOIDS cases where they COULD make a clear unambiguous ruling in support of the Second Amendment being exactly what it APPEARS to be and TOSS the whole concept of 'gun control' on the ashheap of History where it belongs eh?
Ah then it's 'editorial' which explains the lack of other attribution...thanks sourcery :-).
What ought to be and what actually is are often different. It should not happen since the States created the Federal Constitution and the States are closer to the will of the people. However, some States seem bound and determined to go their own way and if not challenged will indeed do so. Remember, States are corporate entities and not subject to morality and other normative behavior.
Good questions..
I predict you will not get a rational answer from RP, -- as he supports a States 'power' to ignore the 2nd.
The Federal Gov't is the subject of the Constitution.
So are the States. Many restrictions on State powers are in both the body & the amendments to the Constitution.
The States created the Federal Gov't to perfect the Union and power flows upward from the States.
And power flows upward to State/local/fed governments from the people.
The idea that a State may not enact something that appears to go against the Constitution is bogus, since it may not affect the interests of the Union at all and would be allowed.
Yep, -- and any State enactments that "go against the Constitution"s protections of individual rights are also bogus, --- Agreed?
What ought to be and what actually is are often different. It should not happen since the States created the Federal Constitution and the States are closer to the will of the people. However, some States seem bound and determined to go their own way and if not challenged will indeed do so. Remember, States are corporate entities and not subject to morality and other normative behavior.
I'll remember. -- Thanks for your agreement on the principles.
An idea may be bogus. But an enactment is beyond bogus, it has become real.
Yep, its become a 'real' infringement on our individual rights.
See Californias "assault weapons" enactments.
"Wrong. -- "In a constitutional republic"
Really? So my ermployer has to let me put up "this place sucks" signs on my office wall? He does have to grant me "free speech", doesnt he?
Seriously, read the constitution again. There are no laws in there for private citizens, only protections. Laws (and therefore goverment) are subject to the constitution. Pprivate citizens are not.
"We are all obliged to support the Law of the Land. -- You need to reread Article VI."
"This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby"
See where it says "and the
Judges in every State shall be bound thereby" at the end? It applies to goverment, not private citizens. I'm not saying we cant be arrested, however, we are arrested under statutes, not constitutional law.
I suppose it's in the way you look at a situation. I like to use analogies to illustrate an event.
-- THe USSC has no more real power today than it's ever had.
This is true. If we use the analogy of a permissive father who has more "power" (or "authority" if you wish to use another term) than his rambunctious son, but refuses to disclipline the son, the question arises: has the unruly son "gained" more "power (or authority) than he originally had because his father shirked his duty?
What we have are the two fed branches, [along with the States,] that hold all the true power in our system, -- refusing to use their powers... For political reasons.
Again, we come back to the father-son analogy. An apathetic Congress can cede its power to another branch by refusing to use its constitutional authority. Conversely, one branch can gain power over another branch if it correctly senses that it can do so without retribution.
I think socialism has totally corrupted our politics. And the politicians who are supposed to check & balance the Courts..
We are both in agreement on this point. The obvious question is what do we do about it?
Yes. Ever since the 1803 landmark case, Marbury v Madison, the U.S. Supreme Court has been the final arbitor and interpreter of the U.S. Constitution. The U.S. Supreme Court decides (it is totally up to them) if it will hear a controversial case. Their ruling is then final.
This usually happens when there is a conflict between two lower federal courts rulings on similar cases.
"I've often wondered why the High Court seemingly AVOIDS cases where they COULD make a clear unambiguous ruling in support of the Second Amendment being exactly what it APPEARS to be ..."
Sure. A lot of down here wonder why the U.S. Supreme Court takes some cases and avoids others. Usually the case is simply not a good one to rule on due to various complications in the case.
When it comes to the second amendment, however, I believe the U.S. Supreme Court is waiting for a challenge to some federal gun control statute, not a state law. The second amendment does not apply to state law (bet you thought it did, huh?).
Private citizens are not subject to the constitution.
We are all obliged to support the Law of the Land. -- You need to reread Article VI.
See where it says "and the Judges in every State shall be bound thereby" at the end?
It applies to goverment, not private citizens. I'm not saying we cant be arrested, however, we are arrested under statutes, not constitutional law.
Anyone can be arrested for violating Constitutional law. -- But rarely are because State/local laws apply to most offences. But you better believe, if your boss violates your individual rights he can be arrested.
The constitution only applies to the goverment.
Wrong. -- "In a constitutional republic,
Really? So my ermployer has to let me put up "this place sucks" signs on my office wall? He does have to grant me "free speech", doesnt he? Seriously, read the constitution again. There are no laws in there for private citizens, only protections. Laws (and therefore goverment) are subject to the constitution. Pprivate citizens are not.
Still wrong. --
" -- the constitution is the supreme law, superior to all other public acts, whether by officials or private citizens. Any statute, regulation, executive order, or court ruling which is inconsistent with that supreme law and not derived from it is unconstitutional and null and void from inception.
A citizen not only has the duty to obey the law, but to help enforce it, within his ability, and to do what he can to prepare himself and others to do so."
Private citizens are protected from the goverment by the constitution, and more specifically by the amendments.
I agree. And in return for liberty under the Constitution, most of us have pledged to support its principles. In fact such an oath is required of ALL officials & naturalized citizens.
I think it should be required of everyone who votes.
We are both in agreement on this point. The obvious question is what do we do about it?
We regain control at the local level, and challenge the powers that be on Constitutional grounds, as per the 'Free State Project'. -- Or as Montana is trying to do:
Anti-federal bills move forward in House (Montana)
Address:http://www.freerepublic.com/focus/f-news/1344245/posts
;>)
Perhaps you should link, or excerpt "Thomas Jefferson's Declaration of 1825", so that the rest of us can share the point you are imagining you've made.
No, we live in an oligarchy because two parties have a gerrymandered stranglehold on the process. And because Supreme court justices refuse to toss out blatantly unconstitutional laws because they are "useful" for one purpose or another.
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