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Unconstitutional laws are constitutional until a court says otherwise

Citizen

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The topic on this thread is a bit disturbing. They are not necessarily constitutional, but one is not free to disobey them without risk of consequences. That's like saying breaking law isn't illegal until you get caught. Which points out the irony: congress can make laws which violate the constitution and the resulting laws are enforceable by the executive branch until the courts say otherwise. Ditto with executive branch regulations. Maybe our checks and balances are a little slow in responding to the need for oversight.


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Readers should check out something called The Kentucky Resolves.

Thomas Jefferson and James Madison stated that the fedgov is not the final determiner of what is constitutional. The states, having created the federal government, are senior to the federal government, and thus must necessarily also have standing to determine the constitutionality of federal laws.
 

davidmcbeth

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Readers should check out something called The Kentucky Resolves.

Thomas Jefferson and James Madison stated that the fedgov is not the final determiner of what is constitutional. The states, having created the federal government, are senior to the federal government, and thus must necessarily also have standing to determine the constitutionality of federal laws.

https://en.wikipedia.org/wiki/Kentucky_and_Virginia_Resolutions

A starting point ... for those interested.
 

davidmcbeth

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In that case David Mcbeth, We are!

CCJ

Well, yes.

This issue of a law being constitutional until otherwise ruled upon, I believe, is predicated upon the idea that legislatures actually give a crap about such things and give due consideration to this question when they pass laws.

However, they do not.

How do I know? I asked them point blank in a judicial proceeding direct examination of a representative of my state senate ; asked if they considered constitutional issues or if a law violates the constitution involved with legislation being considered and the senate of my state legislature said no, they do not.

The notion that laws are constitutional until ruled otherwise is garbage. First off, it either is or isn't since its birth ... and also, because of the reasons noted above that deference to legislatures is defunct now as they don't even examine the issue.

I kinda like the Liberland constitution's way of passing laws (scroll all the way to the bottom).

https://liberland.org/en/constitution/
 

countryclubjoe

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Well, yes.

This issue of a law being constitutional until otherwise ruled upon, I believe, is predicated upon the idea that legislatures actually give a crap about such things and give due consideration to this question when they pass laws.

However, they do not.



How do I know? I asked them point blank in a judicial proceeding direct examination of a representative of my state senate ; asked if they considered constitutional issues or if a law violates the constitution involved with legislation being considered and the senate of my state legislature said no, they do not.

The notion that laws are constitutional until ruled otherwise is garbage. First off, it either is or isn't since its birth ... and also, because of the reasons noted above that deference to legislatures is defunct now as they don't even examine the issue.

I kinda like the Liberland constitution's way of passing laws (scroll all the way to the bottom).

https://liberland.org/en/constitution/

I am guessing that all the citizens in liberland, can spell Constitution, however that would be a major issue in the USA..
 

davidmcbeth

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I am guessing that all the citizens in liberland, can spell Constitution, however that would be a major issue in the USA..

101_thumb1.jpg
 

utbagpiper

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It is the Supreme Court that has the final rule on what is or what is not Constitutional..

I doubt you can find any provision of the federal Constitution that actually spells that out.

It isn't there. Judicial review is a power the court assumed unto itself in Marbury v. Madsen.

Under the constitution, the 3 branches are co-equal. The SCOTUS is "supreme" only relative to the "inferior" courts under it. It stands co-equal with, not supreme to, the Presidency and the Congress. The executive and legislative have largely abdicated their responsibility and power to help determine the constitutionality of laws and to limit the power of the courts legislatively as provided by Art III, Sec 2 "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Current practice with the court having effective final say while the other branches sit seemingly powerless, is not necessarily what the constitution intended.

Charles
 

countryclubjoe

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I doubt you can find any provision of the federal Constitution that actually spells that out.

It isn't there. Judicial review is a power the court assumed unto itself in Marbury v. Madsen.

Under the constitution, the 3 branches are co-equal. The SCOTUS is "supreme" only relative to the "inferior" courts under it. It stands co-equal with, not supreme to, the Presidency and the Congress. The executive and legislative have largely abdicated their responsibility and power to help determine the constitutionality of laws and to limit the power of the courts legislatively as provided by Art III, Sec 2 "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Current practice with the court having effective final say while the other branches sit seemingly powerless, is not necessarily what the constitution intended.

Charles

" The court does pick up a law and examine it on its own. Laws come before the court when they are challenged and work their way thru appeals. They Scotus decide whether or not the law applies in these cases, and because laws must apply equally ( within the boundaries of their intended reach)
The decisions the court makes must therefore be precedential while it wasn't laid out in the Constitution, it was a Natural result of the law of the land.. The Constitution cannot be trumped, and courts must interpret the law. If the Supreme court must interpret the law in light of the Constitution, even if the justices don't technically have the power to " declare anything Constitutional or unconstitutional, by declaring that a law doesn't apply to one person or a few or many, the court can essentially render a law constitutional and or unconstitutional. The 14th amendment in my opinion bestowed much more power on the SCOTUS in terms of ruling issues constitutional or unconstitutional.

My .02

Always a pleasure Charles.

CCJ
 

color of law

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The USSC is ONLY relevant when congress and/or the lower courts agree with their decision. Both congress and the lower courts will twist the USSC decisions into what they (congress and lower courts) want it to say or just ignore their (USSC) decisions.

Two good examples: United States v. Lopez, 514 U.S. 549. The Commerce Clause has no effect on objects not in commerce. And District of Columbia v. Heller, 554 U.S. 570. The second amendment declares that it shall not be infringed; which means that it shall not be infringed by Congress.
 

countryclubjoe

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The justices read the constitution as 21st century jurist..

See- America's Unwritten Constitution By Akhil Reed Amar

See- The Living Constitution by David A. Strauss

See- Is there a right to remain silence? Alan Dershowitz

Regards

CCJ
 
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