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Thread: Unconstitutional laws are constitutional until a court says otherwise

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    Regular Member WalkingWolf's Avatar
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    Unconstitutional laws are constitutional until a court says otherwise

    Yea, I was shocked when a claimed attorney on CastBoolits made that claim. He spends a lot of time posting, and I think I understand why.
    Quote Originally Posted by Char-Gar View Post
    All laws are constitutional until a court of proper jurisdiction says otherwise. Municipalities, counties, states and the Federal government all pass laws of a dubious constitutional nature on a quite regular basis.(snip)
    He then goes on to mock a link to University of Berkly revue.

    Thread if you are interested.http://castboolits.gunloads.com/show...33#post3433533
    Last edited by WalkingWolf; 11-12-2015 at 12:04 PM.
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    Regular Member HPmatt's Avatar
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    I think this also the way the Congress has acted - we pass a law and it is up to the courts (and litigants that oppose it and are willing to pay attorneys to fight it) to decide if it is unconstitutional. Like the crooked way Obamacare was passed.

    The corollary are lawsuits by activist lawyers and crooked courts finding made-up a constitutional bases on non-federal state issues such as abortion and gay marriage .


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    I tink that he was looking at the way that the law looks at legislation ... its not the way I look at legislation, cause I have a functioning brain.

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    Quote Originally Posted by WalkingWolf View Post
    Yea, I was shocked when a claimed attorney on CastBoolits made that claim. He spends a lot of time posting, and I think I understand why.


    He then goes on to mock a link to University of Berkly revue.

    Thread if you are interested.http://castboolits.gunloads.com/show...33#post3433533
    I can't remember the case, but I've read more than once that SCOTUS holds that all statutes passed by congress and signed into law are presumptively constitutional. Meaning, the rest of us have to raise a stink, and then prove the statute or regulation is not constitutional. Of course, SCOTUS gets to decided whether our proof is proof enough.

    Nullification is overtly ignored or pretended not to exist. Certainly it is not codified into SCOTUS case law. The Kentucky Resolves, by James Madison and Thomas Jefferson said, in effect/paraphrase that the states had just as much right to determine the constitutionality of a federal statute. And, if determined unconstitutional, ignore it. While not codified in SCOTUS case law, nullification does exist. The most recent example is when congress passed the RealID law. Some states ignored it. At least one state legislature passed a law forbidding its employees to comply (Montana?). RealID is now almost nationwide among the states--only a few holdouts with the fedgov threatening sanctions (refusal to recognize driver's licenses as ID? withholding federal money? I can't recall.) I saw an article within the last couple months that predicted the hold-outs would cave in. But, that is not a repudiation of state nullification of unconstitutional federal laws. In fact, the very fact the fedgov is using strong-arm tactics instead of going to court proves the fedgov recognizes it is not the sole arbiter of constitutionality and cannot totally enforce its own opinion of constitutionality by simple court order on all issues.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    As the law sees it he is correct. That is why cities like Chicago and D.C. can pass these obvious violations because they know even if it is illegal, it will be law for a few years.

    What we need to do is start arresting the people that create these laws once they are found to be in violation of the constitution.

    Right now we do nothing so they keep creating unconstitutional laws because they won't get in any trouble for it.

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    Regular Member WalkingWolf's Avatar
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    Actually Justice Marshall ruled that he is wrong, and law revues after agree with him. If a law is constitutional, it cannot be later ruled that it is not. I relate it to bad plumbing, the plumbing is not good until a plumber says it is bad. The courts are the plumbers. If the plumbing is not bad there is no need for the plumbers to fix it. This is what his ruling basically boiled down to. That a law that is contrary to the supreme law is void, and the court has the jurisdiction to fix it. Until the court fixes it, the law may be enforceable until it is taken up the food chain. But along that food chain someone has to realize that the law is (wait for it) unconstitutional. Or SCOTUS would have nothing to do.
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    Marbury v. Madison, 5 U.S. 137 (1803)

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    Quote Originally Posted by color of law View Post
    Marbury v. Madison, 5 U.S. 137 (1803)
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    Quote Originally Posted by travr6 View Post
    As the law sees it he is correct. That is why cities like Chicago and D.C. can pass these obvious violations because they know even if it is illegal, it will be law for a few years.

    What we need to do is start arresting the people that create these laws once they are found to be in violation of the constitution.

    Right now we do nothing so they keep creating unconstitutional laws because they won't get in any trouble for it.
    Ha ha ha .. Chicago .... I used to sell hand guns and evil rifles to the residents of Chgo all the time. The city even sent people over to try to get me to stop ... I laughed at them and pointed the way off my property. Daley ... funny funny guy.

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    Unbelievable. This guy is either lying or totally delusional. There are many many rulings from time past that clearly state that unconstitutional laws are not laws, do not have to be obeyed neither does anyone have the right to punish one for disobeying these so called laws.

    Disobey because constitutionally those 'laws' do not exist. And prepare to defend yourself like an American who respects the blood of those who died before us. Come and take our rights? Molon Labe!
    "Which part of shall not be infringed is so difficult to understand"?

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    Regular Member HPmatt's Avatar
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    Unconstitutional laws are constitutional until a court says otherwise

    Here's a link on how Pelosi's US Congress was wiping its nose on the Constitution.

    http://blog.constitutioncenter.org/2...itutional-law/

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    Last edited by HPmatt; 11-15-2015 at 09:46 PM.
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    Quote Originally Posted by rightwinglibertarian View Post
    Unbelievable. This guy is either lying or totally delusional. There are many many rulings from time past that clearly state that unconstitutional laws are not laws, do not have to be obeyed neither does anyone have the right to punish one for disobeying these so called laws.

    Disobey because constitutionally those 'laws' do not exist. And prepare to defend yourself like an American who respects the blood of those who died before us. Come and take our rights? Molon Labe!
    This place of ours works very well precisely because we are a country of laws. Occasionally, a law is decidedly at odds with our basic principles, in which case it gets litigated. And then there are 1) laws that sit in a grey area where reasonable people disagree, and 2) laws which come to be found unconstitutional because of changing times. States and municipalities have the authority to regulate things within their borders so long as those restrictions are not challenged by those residing and (presumably) eligible to vote therein take exception. As far as my (2), once women were not allowed to vote and free men were allowed to buy and sell slaves so don't sit too high on that constitutionality horse.


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    Quote Originally Posted by HPmatt View Post
    Here's a link on how Pelosi's US Congress was wiping its nose on the Constitution.

    http://blog.constitutioncenter.org/2...itutional-law/

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    Every Congress does this. GOP has played these games and worse. It's not a party-line issue, it's politics. It's also why we all know the constituencies aren't paying attention or possibly think it's a good thing. I know plenty of people who just don't understand that the purpose of government is NOT to tell me what to do, nor is it the purpose of Congress to pass a bunch of laws that selfishly benefit one group over another.


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    Quote Originally Posted by nonameisgood View Post
    This place of ours works very well precisely because we are a country of laws. Occasionally, a law is decidedly at odds with our basic principles, in which case it gets litigated. And then there are 1) laws that sit in a grey area where reasonable people disagree, and 2) laws which come to be found unconstitutional because of changing times. States and municipalities have the authority to regulate things within their borders so long as those restrictions are not challenged by those residing and (presumably) eligible to vote therein take exception. As far as my (2), once women were not allowed to vote and free men were allowed to buy and sell slaves so don't sit too high on that constitutionality horse.


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    States have the authority to regulate what the Constitution does not. For example things like speed limits. States do not have the right to regulate firearms in any way any more than the federal government does. Any part of the US Code or state Constitution which does is void. There is ample evidence to support this. The only way a matter that the Constitution has ruled on can be changed is an amendment, which has been done in the case of the abolition of slavery and allowing women to vote. The idea you would expect a government to decide to give you freedom to exercise a right after it has unlawfully stolen them is insane. It's a miracle it's worked this long as well as it has. Government wants power and control. It will not willingly give it to you after it has stolen it because you ask.
    No you simply nullify the laws en masse. Have a Tea Party of our own - nationally. I can't see the government going and slaughtering thousands of people and having many of them get killed in a virtual civil war over citizens with guns. No they'll back down over fear they will be removed from power.
    "Which part of shall not be infringed is so difficult to understand"?

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    I think the greatest problem is that individuals will die at the beginning of the rebellion. Individual agents will act in response to individuals refusing to surrender. The masses will lose an appetite for this conflict, and the rebellion will end quickly.
    A Tea Party worked once because it was local and decisive rather than widespread and incremental.
    Then there are the aspects related to certain "sophisticated city folk" who simply want everything to go smoothly and who think physical conflict is never necessary. (And when it is, they count on the government to do the right thing since it always takes care of them.)


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    Quote Originally Posted by nonameisgood View Post
    I think the greatest problem is that individuals will die at the beginning of the rebellion. Individual agents will act in response to individuals refusing to surrender. The masses will lose an appetite for this conflict, and the rebellion will end quickly.
    A Tea Party worked once because it was local and decisive rather than widespread and incremental.
    Then there are the aspects related to certain "sophisticated city folk" who simply want everything to go smoothly and who think physical conflict is never necessary. (And when it is, they count on the government to do the right thing since it always takes care of them.)


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    Of course. Which is why any hot head who tries it certainly will die. One person who decides to OC in L.A. Without a permit would get arrested or shot within 5 minutes or less. 1000 on the other hand and you have another matter. The police would either totally leave them alone or be far far more cautious. Why? Because they know they start go and fire, those 1000 people will fire back and it will be a bloodbath. Now imagine the same scenario in every major city across the country? Now imagine this happens daily. Thats what you call nullification.
    "Which part of shall not be infringed is so difficult to understand"?

    "Any and all restrictions on the bearing of arms in public places are nullified as per the Second Amendment"

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    I think we have a rule on this website against advocating the breaking of laws and violent overthrow of government. Just figured I would warn you that a moderator will probably make a visit shortly.


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    Quote Originally Posted by nonameisgood View Post
    I think we have a rule on this website against advocating the breaking of laws and violent overthrow of government. Just figured I would warn you that a moderator will probably make a visit shortly.


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    You misunderstand me. I am not advocating overthrow of the government. As for the rest, I did not either say you should do it or say I would. I used the word imagine.
    "Which part of shall not be infringed is so difficult to understand"?

    "Any and all restrictions on the bearing of arms in public places are nullified as per the Second Amendment"

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    Politics are local. This fact has been true from the beginning of time. Most of the time a group that protests an unjust whatever will get attention and usually change. It is covered almost everyday on the news. Martin Luther King taught you how to do it. Gun owners have done it effectively. And it does not take that many. It just takes someone to organize it, but the most important thing is you have to have participants. No participants no change. It's that simple.

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    Quote Originally Posted by rightwinglibertarian View Post
    States have the authority to regulate what the Constitution does not. For example things like speed limits. States do not have the right to regulate firearms in any way any more than the federal government does. Any part of the US Code or state Constitution which does is void. There is ample evidence to support this. The only way a matter that the Constitution has ruled on can be changed is an amendment, which has been done in the case of the abolition of slavery and allowing women to vote. The idea you would expect a government to decide to give you freedom to exercise a right after it has unlawfully stolen them is insane. It's a miracle it's worked this long as well as it has. Government wants power and control. It will not willingly give it to you after it has stolen it because you ask.
    No you simply nullify the laws en masse. Have a Tea Party of our own - nationally. I can't see the government going and slaughtering thousands of people and having many of them get killed in a virtual civil war over citizens with guns. No they'll back down over fear they will be removed from power.
    Check your state constitution to see if that is allowed in your state.

    If traffic laws are not covered in you state constitution then not even your state can regulate traffic laws.

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    Quote Originally Posted by Freedom1Man View Post
    Check your state constitution to see if that is allowed in your state.

    If traffic laws are not covered in you state constitution then not even your state can regulate traffic laws.

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    You may have a point but i'd rather focus on firearm rights myself. It is explicitly stated that this right shall not be infringed, therefore if there is a law infringing on the right to bear arms it is void
    "Which part of shall not be infringed is so difficult to understand"?

    "Any and all restrictions on the bearing of arms in public places are nullified as per the Second Amendment"

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by rightwinglibertarian View Post
    You may have a point but i'd rather focus on firearm rights myself. It is explicitly stated that this right shall not be infringed, therefore if there is a law infringing on the right to bear arms it is void
    If it applies to one area it can apply to another.

    If the, state, constitution does not allow for regulation of firearms (weapons/arms/guns) then the same idea applies.


    As for the bad ruling, I believe that the burden of proof that a law is constitutional should rest firmly on the shoulders of government. All laws should be considered unconstitutional until vetted.

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    Quote Originally Posted by Freedom1Man View Post
    If it applies to one area it can apply to another.

    If the, state, constitution does not allow for regulation of firearms (weapons/arms/guns) then the same idea applies.


    As for the bad ruling, I believe that the burden of proof that a law is constitutional should rest firmly on the shoulders of government. All laws should be considered unconstitutional until vetted.

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    It seems that this would make governing impossible. While I am all for as few laws as necessary, the legislative branch is charged with creating and changing laws. If there truly is a problem with this, maybe we should elect better representatives and senators.

    I lived in a small town where despite the city attorney telling the city council that doing a thing was illegal, the council did it anyway. They are rumored to have said something like, "who is going to stop us." Ultimately it was the voters and the state, but not until the damage had been partially done.

    Rapid citizen intervention can be crucial in stopping injustice before the first rail car load of Jews is gassed. But in situations of lesser urgency, the courts can usually be tasked. My problem is that there usually has to be at least one injustice before the courts can actually hear a case. And I agree that burden of proof should be on the maker and enforcer of the laws, not the aggrieved.


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    Regular Member rightwinglibertarian's Avatar
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    Quote Originally Posted by Freedom1Man View Post

    As for the bad ruling, I believe that the burden of proof that a law is constitutional should rest firmly on the shoulders of government. All laws should be considered unconstitutional until vetted.

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    Quote Originally Posted by nonameisgood View Post
    It seems that this would make governing impossible. While I am all for as few laws as necessary, the legislative branch is charged with creating and changing laws. If there truly is a problem with this, maybe we should elect better representatives and senators.

    I lived in a small town where despite the city attorney telling the city council that doing a thing was illegal, the council did it anyway. They are rumored to have said something like, "who is going to stop us." Ultimately it was the voters and the state, but not until the damage had been partially done.

    Rapid citizen intervention can be crucial in stopping injustice before the first rail car load of Jews is gassed. But in situations of lesser urgency, the courts can usually be tasked. My problem is that there usually has to be at least one injustice before the courts can actually hear a case. And I agree that burden of proof should be on the maker and enforcer of the laws, not the aggrieved.


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    Not at all. Laws that are constitutional have to be obeyed. We are not talking anarchy here, we are talking about mass nullification of any and all laws which are not constitutional. We are not bound to obey anything else, therefore any attempts to force us to obey those laws should be met with mass resistance. And no I am not talking the overthrow of the government or another civil war. This isnt an all or nothing idea. The key is still to use the minimal force needed and this can well mean simply a heavily armed citizen militia that in some cases may not even fire a shot. Case in point Bundy Ranch. Though in the end he allowed himself to be kidnapped
    "Which part of shall not be infringed is so difficult to understand"?

    "Any and all restrictions on the bearing of arms in public places are nullified as per the Second Amendment"

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    "Laws repugnant to the US Constitution are null and void."

    My .02

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