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.
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 Constituions original principles, imo..
Interesting post with some salient and contemporary points. I wonder how many federal congressmen and senators, as well as the 50 state house representatives, would agree with the "Declaration of Constitutional Principals? Not many, I presume.
I agree it is well worth the read as is the original you linked to...I too would like to know who wrote this...
Does this mean we're living in an "oligarchy" since political power is concentrated in the hands of nine judges who think of themselves as above the common man?
Sounds like Mark Levin, of "MEN in Black" a constitutional specialest,by the way it's a great read.
I would doubt there are any.. -- Well, Ron Paul might..
-- But our mysterious author does have some very controversial views about our duties as milita, that even I have a bit of trouble with.
Its bit late for that ain't it..
Just another document to ignore..
I would have to read this more carefully, but it looks pretty good on a quick peruse. My favorite line in it is one of my main soapboxes:
"It may not be applied in the way it was intended by those who wrote and adopted the original act"
Although I think it should, more clearly, read:
"In may not be applied in a way other than it was intended by those who wrote and adopted the original act."
Some Libertarian doofus (but I repeat myself), ignorant of the writings of the Founding Fathers and actual case law.
That concept of 'power' seems to be the conventional FR wisdom of the day, but I've never agreed with it.
-- THe USSC has no more real power today than it's ever had.
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.
I think socialism has totally corrupted our politics. And the politictians who are supposed to check & balance the Courts..
Always liked Mark, and I'm looking foward to reading his book.
Private citizens are not subject to the constitution. The constitution only applies to the goverment. Private citizens are protected from the goverment by the constitution, and more specifically by the amendments.
The Federal Gov't is the subject of the Constitution. The States created the Federal Gov't to perfect the Union and power flows upward from the States. 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.
"--- It may not be applied in the way it was intended by those who wrote and adopted the original act. -- "
Sola Veritas wrote:
I think it should, more clearly, read:<
"In may not be applied in a way other than it was intended by those who wrote and adopted the original act."
Good catch. It does make better sense with that additional word.. -- Thanks.
Maybe it is. Who is the sovereign in this country?
The author is Jon Roland. Constitution.org is his site.
Some Libertarian doofus, ignorant of the writings of the Founding Fathers and actual case law.
paulsen
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Ah yes, FR's anti-"libertarian doofus" chimes in, claiming the author is "ignorant" without even a semblance of proof to back up his slur.
Typical disruption method.
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.
The constitution only applies to the goverment.
Wrong. -- "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.
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.
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