Question: Unconstitutional Official Acts (16 Am Jur 2d, Sec 177 late 2d, Sec 256)

Carpedium · Dec 20, 2012

How is it that when Obama or any other politician signed the NDAA, (http://www.aclu.org/blog/national-security/dont-be-fooled-new-ndaa-detention-amendment), which violates the constitution, there are never any ramifications as per the below text?

When it comes to gun control, why are we inclined to obey a law that is unconstitutional?

Unconstitutional Official Acts (16 Am Jur 2d, Sec 177 late 2d, Sec 256):

The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.....

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.

No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.

Jon Roland:

Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it.

All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one's life.

Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.
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scramasax · Dec 20, 2012

Contact the ACLU

RatDrall · Dec 20, 2012

When it comes to gun control, why are we inclined to obey a law that is unconstitutional?
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Because those who wrote those rules literally have an army at their disposal, and because you have too much to lose to ever risk spending years locked in a cage or be killed fighting back.

AlexanderA · Dec 20, 2012

A federal law that is validly passed (in form) is presumed to be constitutional until and unless the Supreme Court declares it to be unconstitutional. In the meantime, it can be enforced. No individual can unilaterally deem a law unconstitutional and refuse to obey it, without being willing to pay the consequences.

Phatty · Dec 20, 2012

That same Constitution that you admit is the supreme law of the land also states that the Supreme Court has ultimate authority to interpret the Constitution and decide whether any law violates the Constitution. The idea that a law sustained by the Supreme Court could still be unconstitutional is false. In your opinion you might disagree with the Supreme Court's interpretation and believe that a law is still unconstitutional, but the Constitution did not state that your opinion is controlling, it gave that authority to the Supreme Court.

Derek Zeanah · Dec 20, 2012

also states that the Supreme Court has ultimate authority to interpret the Constitution and decide whether any law violates the Constitution
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No it doesn't. Marbury vs Madison established that. Nobody really challenged the court on judicial review, so that's the way it is now.

Or at least, so I lerned iin skool.

Atbat82 · Dec 20, 2012

Phatty said: ↑

but the Constitution did not state that your opinion is controlling, it gave that authority to the Supreme Court.
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Technically, and sorry to split hairs, judicial review is not a part of the constitution. It has become de facto law since Marbury v Madison and no one has ever really challenged it. However, the power is not enumerated in the Constitution.

Sent from my iPhone

Atbat82 · Dec 20, 2012

Sorry, Derek beat me to it. Didn't mean to pile on.

Sent from my iPhone

Phatty · Dec 20, 2012

Article III states that "The judicial Power of the United States, shall be vested in one supreme Court ..." and that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..."

At the time of the authoring of the Constitution, the words above plainly meant that the Supreme Court is bestowed with the power to interpret the Constitution.

See Federalist No. 78. Here's a small snippet:

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

Marbury did not create some right or power of the Supreme Court; it simply was the first case that enforced the power that was given to the Supreme Court in the Constitution.

Carpedium · Dec 20, 2012

Interesting. For clarification, I never stated that I want, do or will disobey the law. I just want to learn from the community.

Phatty · Dec 20, 2012

Despite what I said above, keep in mind that if the branches of government really went off the tracks, such that Congress passed clearly unconstitutional laws and the Supreme Court upheld them, there is always the option of civil disobedience. After all, the leaders are supposed to be serving with the consent of the people. But, obviously, the risk is that you get tossed in jail or worse. This is what happened with the civil rights movement in the 60's. Change was eventually achieved but a lot of people sacrificed themselves to obtain that change.

Frank Ettin · Dec 20, 2012

Atbat82 said:

...judicial review is not a part of the constitution. It has become de facto law since Marbury v Madison...
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Actually, it effectively does flow from the Constitution. Let me expand on what Phatty wrote.

The Constitution gives the federal courts the authority to decide cases arising under the Constitution (Constitution of the United States, Article III):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....
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And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....
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Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

...When it comes to gun control, why are we inclined to obey a law that is unconstitutional?...
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But you don't get to decide if a law is unconstitutional. If there is a disagreement as to whether a law is unconstitutional, that's where courts get brought in. And until a court with the proper jurisdiction has decided that a law is unconstitutional, the law is enforceable and will be enforced.

So the bottom line is that whether or not a law is constitutional will be up to the court. A court's opinion on a matter of law, such as whether a law is or is not constitutional, affects the lives and property of real people in the real world.

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Question: Unconstitutional Official Acts (16 Am Jur 2d, Sec 177 late 2d, Sec 256)

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Question: Unconstitutional Official Acts (16 Am Jur 2d, Sec 177 late 2d, Sec 256)

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