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.
.
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.
There are some good points within this essay. But the point calling for violating laws believed to be unconstitutional is problematic at best. We can't even get that much agreement HERE much less among people who differ even more than those here. Most of us believe almost all gun control laws are unconstitutional but cannot ignore them without great peril to life and limb.
Another contention is that the title "Esquire" given lawyers is a foreign title which Americans are forbidden to accept per the Constitution.
Some argue that the 16th amendment, the income tax, was never legally adopted but stand to lose everything should we act upon that belief. Reigning in court power is a great concern but Judicial Review was accepted even before the Constitution set up a federal judiciary.
There are some good points within this essay. But the point calling for violating laws believed to be unconstitutional is problematic at best. We can't even get that much agreement HERE much less among people who differ even more than those here.
We don't really need 'agreement'. Booze prohibition failed because everyone ignored it, and in most cases officials refused to enforce it. Gun prohibitions could be countered in the same manner.
Most of us believe almost all gun control laws are unconstitutional but cannot ignore them without great peril to life and limb.
We are even more in peril for our liberty - [thus ultimately life & limb], if we ignore infringements.
Another contention is that the title "Esquire" given lawyers is a foreign title which Americans are forbidden to accept per the Constitution.
?? -- I don't see that discussed in the section I've cited. In any case its a petty non-issue.
Some argue that the 16th amendment, the income tax, was never legally adopted but stand to lose everything should we act upon that belief.
Yep, pledging ones life, fortune, & sacred honor to fight tyranny is dangerous indeed..
Reigning in court power is a great concern but Judicial Review was accepted even before the Constitution set up a federal judiciary.
So it was. Is there some point to that comment?
Prohibition is not an example to be followed wrt other laws one disagrees with. It's repeal was as much a result of the violence associated with the provision of illegal booze as anything. And it did not fail everywhere in any case. Mississippi didn't allow the sale of booze even as late as the 60s. My home county in Arkansas, Ashley, is to this day "dry" though it now allows "private clubs" to sell.
The danger to our liberty is greater when extra-legal actions are taken and justified though appeals to resist "unconstitutional" law. Freedom can only be retained when there is respect for the Rule of Law even laws with which you do not agree.
It is foolish to believe that the elected representatives of a Free People (and we are the freest to ever live) are the equivalent of unelected monarchs from 3000 miles away ruling over subjects not citizens.
I gave examples of differing opinions as to what is unconstitutional they did not come from your post. Their relevence is to show that people differ in their interpretations of what the document means.
The point is that Judicial Review was not the creation of an overwheening federal judiciary but a part of American history prior to the creation of the federal government.
There are some good points within this essay. But the point calling for violating laws believed to be unconstitutional is problematic at best. We can't even get that much agreement HERE much less among people who differ even more than those here.
We don't really need 'agreement'.
Booze prohibition failed because everyone ignored it, and in most cases officials refused to enforce it. Gun prohibitions could be countered in the same manner.
Prohibition is not an example to be followed wrt other laws one disagrees with. It's repeal was as much a result of the violence associated with the provision of illegal booze as anything. And it did not fail everywhere in any case. Mississippi didn't allow the sale of booze even as late as the 60s. My home county in Arkansas, Ashley, is to this day "dry" though it now allows "private clubs" to sell.
As usual, you are quite happy to divert the issue away from our duty to resist unconstitutional acts, [IE, - prohibitions] to arguing that prohibitionary acts are OK. - So it goes.
Most of us believe almost all gun control laws are unconstitutional but cannot ignore them without great peril to life and limb.
We are even more in peril for our liberty - [thus ultimately life & limb], if we ignore infringements.
The danger to our liberty is greater when extra-legal actions are taken and justified though appeals to resist "unconstitutional" law.
Hype. -- Our system acts at its best when it is challenged by dissenters. Dissent brought an end to slavery; -- and to Jim Crow. The planned Montana dissent may bring gun infringements to a halt.
Freedom can only be retained when there is respect for the Rule of Law even laws with which you do not agree.
How specious. Our various levels of government are showing very little respect to our rule of Constitutional law, yet you claim that MY disagreement with their acts is the "danger".
It is foolish to believe that the elected representatives of a Free People (and we are the freest to ever live) are the equivalent of unelected monarchs from 3000 miles away ruling over subjects not citizens.
We won the battle over Monarchy long ago, and have been fighting tin pot politicians ever since, who are backed up by sycophants urging us to just shut up, and take it.
-- Political groupies are very strange people.
Reigning in court power is a great concern but Judicial Review was accepted even before the Constitution set up a federal judiciary.
So it was. Is there some point to that comment?
The point is that Judicial Review was not the creation of an overwheening federal judiciary but a part of American history prior to the creation of the federal government.
I see no reason for you to make that point here, to me.. Can you explain?
You previously informed me that you could not read 'pdf' files. Now it appears you can not use a search engine. It appears you might be best described as helpless (and/or 'clueless' ;>)...
Whatever. --
-- Although it appears you can't back up your imagined 'point'..
For my handicapped friend ('although it appears you can't use a search engine' ;>):
Thomas Jefferson's "Declaration and Protest on the Principles of the Constitution of the United States of America, and on the Violations of Them"
http://www.yale.edu/lawweb/avalon/jeffdec1.htm
It's from the Yale Law School web site (no doubt a 'new' web site for you, given your demonstrated disdain for historical documentation ;>)...
A few points:
1) You started this thread, entitled Declaration of Constitutional Principles. Are you suggesting that a document written by Thomas Jefferson, entitled Declaration... on the Principles of the Constitution of the United States and of the Violations of Them is somehow irrelevant to the subject at hand?
2) If Mr. Roland is the author, why did you list the author as "unknown?"
3) Did you know that Mr. Roland was the author of the following comment regarding Marbury v. Madison (which I quoted in part on a different thread)?
"... [Mr. Justice Marshall's] dictum explaining the duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as far as it went. The problem was that it left the impression that this was the exercise of a power of the court that only the court had. The misleading statement was, "It is emphatically the province and duty of the judicial department to say what the law is." It is misleading because it connotes that as the "province" it is exclusive of the other departments... When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts..."
;>)
A few points: 1) You started this thread, entitled Declaration of Constitutional Principles. Are you suggesting that a document written by Thomas Jefferson, entitled Declaration... on the Principles of the Constitution of the United States and of the Violations of Them is somehow irrelevant to the subject at hand?
Reading TJ's document makes it evident that the only commonality with Roland's essay is the words of the title. You need to get a grip on your pointless hyperbole.
2) If Mr. Roland is the author, why did you list the author as "unknown?"
I didn't bother to track him down... So sue me.
3) Did you know that Mr. Roland was the author of the following comment regarding Marbury v. Madison (which I quoted in part on a different thread)? "... [Mr. Justice Marshall's] dictum explaining the duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as far as it went. The problem was that it left the impression that this was the exercise of a power of the court that only the court had. The misleading statement was, "It is emphatically the province and duty of the judicial department to say what the law is." It is misleading because it connotes that as the "province" it is exclusive of the other departments...
When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts..."
As I said on that other thread, -- I don't think that Marshall thought review was "an exclusive power of the courts..." -- either, -- and said exactly that in other parts of Marbury.
-- Roland misinterprets Marshall's intent, just as many others have over the years.. -- Which is no big deal except to nitpickers desperately looking for an arguing point.
More to the point, how many representatives or Senators have ever even heard these principles........principles, by the way, that they raised thier right hands (many more than once) and swore to God to uphold?
No “commonality” except the “title?” You have posted the one ‘declaration,’ and I have posted the address for the other – I’ll let other FReepers be the judge.
;>)
I didn't bother to track [the author of the item I posted] down... So sue me.
Obviously, you DID “bother to track him down” – but only after you had posted his Declaration (see your Post #18). Also, I don’t “sue” people over their unsubstantiated posts.
“You need to get a grip on your pointless hyperbole.”
;>)
Roland misinterprets Marshall's intent, just as many others have over the years..
Actually, Mr. Roland is exactly right. Given your lack of documentation to the contrary, it appears to be you who “misinterprets Marshall's intent, just as many others have over the years”…
;>)
Which is no big deal except to nitpickers desperately looking for an arguing point.
Sorry, my friend, but you were obviously the one “desperately looking for an arguing point” (see your ‘invitational’ Post #4). As I’ve stated via FReep-mail, I believe we agree on more issues than we disagree. And, unlike you, I have never suggested that I disagree with Mr. Roland (in fact, I link to his web site via my FR home page), or that Mr. Jefferson’s Declaration was inconsistent with what you posted on this thread. In short, the terms ‘desperate’ and ‘argumentative’ certainly describe your posts more than mine...
;>)
Obviously, you DID "bother to track him down" – but only after you had posted his Declaration (see your Post #18). Also, I don't "sue" people over their unsubstantiated posts.
Not true. Here's the sequence of posts I made, leading to your petty 'unsubstantiated' stink:
_____________________________________
I should have titled this to read; -- A Declaration of [Some] Constitutional Principles..
The essay I copied this portion from is much longer, but well worth the read.
Whoever wrote it [anyone know?] has a very good grasp of our Constitutions original principles, imo..
1 P_A_I
_______________________________________
Hmmm, not much interest in the principles of our Constitution this fine morning.. Oh well, they've survived over two hundred years of neglect, whats another day matter..
4 P_A_I
______________________________________
sourcery wrote:
The author is Jon Roland. Constitution.org is his site.
_______________________________________
As I said on that other thread, -- I don't think that Marshall thought review was "an exclusive power of the courts..." -- either, -- and said exactly that in other parts of Marbury.
-- Roland misinterprets Marshall's intent, just as many others have over the years..
-- Which is no big deal except to nitpickers desperately looking for an arguing point.
Actually, Mr. Roland is exactly right. Given your lack of documentation to the contrary,
Marshall's words are clear in Marbury, just as I documented them for you on the other thread.
it appears to be you who "misinterprets Marshall's intent, just as many others have over the years"… ;>)
Which is no big deal except to nitpicking neener/neener types desperately looking for an arguing point.
Sorry, my friend, but you were obviously the one "desperately looking for an arguing point" (see your 'invitational' Post #4).
I invited your comments, hoping you would over-react. You have. --- Thanks.
As I've stated via FReep-mail, I believe we agree on more issues than we disagree.
As I replied; - I am not your friend, and I don't agree with your political style.
And, unlike you, I have never suggested that I disagree with Mr. Roland (in fact, I link to his web site via my FR home page), or that Mr. Jefferson's Declaration was inconsistent with what you posted on this thread. In short, the terms 'desperate' and 'argumentative' certainly describe your posts more than mine...
Whatever. I'll let our peers judge our respective positions.
Unfortunately for you, you can not edit your posts on this forum – and you listed the author as “unknown.” It’s there for the world to see. Case closed...
;>)
[P_A_I’s misinterpretation of Mr. Justice Marshall’s opinion] is no big deal except to nitpicking neener/neener types desperately looking for an arguing point.
I prefer to stick to the facts, and avoid ‘misinterpretations.’ Your preferences are obviously quite different.
;>)
I invited your comments, hoping you would over-react. You have. --- Thanks.
“Not rue.” Allow me to reiterate (see my Post #52):
...[Y]ou were obviously the one “desperately looking for an arguing point” (see your ‘invitational’ Post #4). As I’ve stated via FReep-mail, I believe we agree on more issues than we disagree. And, unlike you, I have never suggested that I disagree with Mr. Roland (in fact, I link to his web site via my FR home page), or that Mr. Jefferson’s ‘Declaration’ was inconsistent with what you posted on this thread. In short, the terms ‘desperate’ and ‘argumentative’ certainly describe your posts more than mine...
Those are the facts – perhaps you should learn to live with them...
;>)
As I replied; - I am not your friend, and I don't agree with your political style.
Now you’ve hurt my feelings again...
(As for politics – it’s the written law, documented historical fact, and reality that matter, not “style” - unless you're a Clinton knee-pad-wearing toadie... ;>)
I'll let our peers judge our respective positions.
Thank you for following my lead – see my Post #52...
;>)
Outstanding post and article - thanks.
So if terrorists outside the U.S. mail anthrax into the U.S., we can't prosecute them?
My pleasure... Thanks for the bump.
So if terrorists outside the U.S. mail anthrax into the U.S., we can't prosecute them?
56 Lurking Libertarian
I agree, - that wouldn't make much sense, would it? -- Good catch..
I have no idea what Constitutional principle that line is supposed to illustrate. -- Perhaps an expert detail man like Galt can set us straight.
This starts out with some good constitutional privileges, but then throws in a lot of unnecessary and extraneous things.
;>)
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