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

Discussion in 'Legal' started by Carpedium, Dec 20, 2012.

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  1. Carpedium

    Carpedium Member

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    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):


     
  2. scramasax

    scramasax Member

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    Contact the ACLU
     
  3. RatDrall

    RatDrall Member

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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.
     
  4. AlexanderA

    AlexanderA Member

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    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.
     
  5. Phatty

    Phatty Member

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    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.
     
  6. Derek Zeanah

    Derek Zeanah System Administrator Staff Member

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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.
     
  7. Atbat82

    Atbat82 Member

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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.



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  8. Atbat82

    Atbat82 Member

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


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  9. Phatty

    Phatty Member

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    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.
     
  10. Carpedium

    Carpedium Member

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

    Phatty Member

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    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.
     
  12. Frank Ettin

    Frank Ettin Moderator

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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):

    • And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

    • 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.

    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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