Thread: How should we respond to unConstitutional laws?

Originally Posted by HonestJoe

I think it's interesting that "Amending the Constitution" wasn't offered as an option....

good point

Originally Posted by Thunder

yes, jury nullification is a legal way for The People to declare a law invalid or unConstitutional.

however, jury nullification & judgement by a Federal court seems to be the only legal & civil way for a law to be deemed unConstitutional.

my only problem with jury nullification, is what oversight do they have? what appeal process is there?

what if a jury decides, for example, that the law banning racial discrimination in housing, employment, education...is unConstitutional?

what if a jury decides that a white man can only be convicted of Manslaughter & not Murder, if he kills a black man?

what if a jury decides that Murder charges should not apply to those who kill abortion providers?

jury nullification is a double-edged sword, that can be used for good as well as horrible purposes.

Thats the point, there is no appeal process for someone found not guilty. Nor should there be. Jury nullification is the power of NO. NO you the goverment may not. It does not require, but 1 person to say no. To convict someone you have to have 12 people unanimously agree to convict. It is much easier to not convict than it is to convict, therefore the likely result of jury nullification is someone is more likely wrongly released than wrongly convicted. As for the charges that are brought that may be unpopular it is up to the prosecuter to correctly judge what they may be able to get a conviction on. Also the victims have at their disposal the court system and may sue the perpetrator, they may or may not prevail, depending on their case. Most people are reasonable. In most circumtances jury nullification works in favor of justice. Consider this, most slaves who made their way north to a free state were not returned to their owners despite the fact that it was CONSTITUTIONALLY REQUIRED they be returned. Most often procecuters could not get a jury to find for the slave owners despite clear evidence of ownership. Northern Juries found slavery to be absolutely repugnet, not to metion against their religious teachings. The same thing occured frequently during the Prohibition era. Procecuters literally could not get a conviction for the possesion of alchol despite the prohibition being Constitutional. In the circumstances where people are wrongly Convicted this is were the appeals process plays a part. Jury nullification rigs the game in favor of the defendent. As it should be rigged when going against an oppoonet with unlimited resoarces. The onous should be opon the procecution to LEAGALLY and HONESTLY PROVE THEIR CASE beyond reasonable doubt. They must prove that the law is constitutional, that the law is being applied fairlly, and correctly. That the rights of the defendent were not violated. That they the procecution have been honest and forthright about the evidence and how it was obtained. The procecution must be transparent so that the jurors KNOW if they convict it will be a just conviction.

The point is, the the FIRST line of defence of the Constituion is WE the PEOPLE in the form of a Jury. It is WE who ENFORCE the LAW. Not judges in black robes, or procecuters, or police, or special agents, but us who enforce the law. Without us Judging ourselves there can be NO LAW. Without us the the law cannot be enforced. Our elected representives can be as stupid and ignorant as they want to be. They can pass all the stupid ignorant laws they want. But tell me this, who is it they depend on, to Enforce the stupid, ignorant, unconstitutional laws? Something to chew on. The answer is why I believe that serving on Juries is far more important than voting for some twit who may or may not be elected.

Originally Posted by Thunder

How should we respond to laws that we consider to be unConstitutional?

How should we respond to those who authored laws and voted for laws, that end up being deemed unConstitutional by a Federal court?

How unconstitutional are we talking about? If it's death camps, then you react through violence and revolution. If it's improper law that doesn't necessarily rob the individual of life, liberty, or property then it can be a slower response either through the election of officials, petitioning the legislature, protest, etc.

The only way, that I am aware of, to challenge the constitutionality (is that even a word?) of a law is to break it, get to court and appeal that decision, repeatedly, until it gets all the way to the SCOTUS. This is a very expensive proposition, yet has yielded some good results over time.

The concept of state issued permits to keep (rent?) your constituional rights to you has yet to be successfully challenged. Is it not an infringement of our 2nd amendment rights to allow a state to force you to take a class, pass a test and pay a large fee simply to keep your right to keep and bear (carry) a handgun? Federal (constitutional) law says that if you are at least 21 years of age, not a convicted felon and have not been declared legally insane that you may vote and own/carry a handgun. No state is allowed to have a voting class, test or fee, yet many are allowed to have that as a condition of issuing a CCW permit, without which you may be fined, jailed and have your property taken by the state for simply carrying your handgun without first buying (renting?) state permission to do so.

The constitution lists (enumerates) specific and limitted powers to the federal gov't, leaving ALL other powers to the states or giving them to the people directly (preventing either the federal or state gov'ts from taking these 'rights' away). Education is not a federal power, yet the DOEd is the fastest growing, cabinet level, federal department. The federal gov't now supplies about 10% of the budget for each state in the form of 'education aid', making the states dependent upon these funds (and the federal strings attached to them) to operate its school system. Clearly the federal gov't is violating the constitution by doing so. It is not constitutional to have a federal DOEd, yet how can a citizen 'break a law' to challenge that? Short of not paying your taxes, and citing that as your reason, how can this issue ever get to the SCOTUS?

Originally Posted by Thunder

good point

Constitutional amendment is a very slow and complicated process. It is also only needed to change the constitution, not to have it 'interpreted' to challenge an unconstitutional law or gov't action. Taking something to court usually requires a reason, either by a case and judgement appeal or via a direct lawsuit.

Originally Posted by PirateMk1

The jury trial. The way it used to be. Its called for all intents and purposes jury nullification. Look up the supreme court case Georgia vs. Brailsford 1794. Its states in a unanimous decision 6-0 that the Jury not only has the right to decide the facts of the case in question but the law and its application. Basically WE are the buffers for stopping unconstitutional laws. I would add that we should petition our congress to pass a law allowing people to sue without being damaged first by an unconstitutional law. Right now you jeapardize your freedom if you violate the law and lose. The constitutionality of a law should be challeged both from the bottom IE jury trials, and the top with the Supreme court in an Consent capacity after a law has been passed. This way the law goes though the crucible before being put into use.

As for attacking polititions I would say they should be put into a mandatory drawing were theirs names are drawn at random. At least say 24 or so are selected for a version of the Hunger Games were we put them into gladitorial style combat were only one can leave alive. We do this at random intervals at least once every ten years. I suspect that the polititions will not like it, but really who else would mind? Besides it would make for interesting entertainment.

Jury nullification does not change the law, it merely allows that one person to be found not guilty or that one case to be dismissed. The law is still there for the next case, that may not recieve such a sympathetic or wise jury.

Originally Posted by ttwtt78640

The only way, that I am aware of, to challenge the constitutionality (is that even a word?) of a law is to break it, get to court and appeal that decision, repeatedly, until it gets all the way to the SCOTUS. This is a very expensive proposition, yet has yielded some good results over time.

The concept of state issued permits to keep (rent?) your constituional rights to you has yet to be successfully challenged. Is it not an infringement of our 2nd amendment rights to allow a state to force you to take a class, pass a test and pay a large fee simply to keep your right to keep and bear (carry) a handgun? Federal (constitutional) law says that if you are at least 21 years of age, not a convicted felon and have not been declared legally insane that you may vote and own/carry a handgun. No state is allowed to have a voting class, test or fee, yet many are allowed to have that as a condition of issuing a CCW permit, without which you may be fined, jailed and have your property taken by the state for simply carrying your handgun without first buying (renting?) state permission to do so.

The constitution lists (enumerates) specific and limitted powers to the federal gov't, leaving ALL other powers to the states or giving them to the people directly (preventing either the federal or state gov'ts from taking these 'rights' away). Education is not a federal power, yet the DOEd is the fastest growing, cabinet level, federal department. The federal gov't now supplies about 10% of the budget for each state in the form of 'education aid', making the states dependent upon these funds (and the federal strings attached to them) to operate its school system. Clearly the federal gov't is violating the constitution by doing so. It is not constitutional to have a federal DOEd, yet how can a citizen 'break a law' to challenge that? Short of not paying your taxes, and citing that as your reason, how can this issue ever get to the SCOTUS?

I do not think your basic premise is correct. You do not necessarily have to break a law to contest it. Several states are doing that now in the case of UHC. Your other premise concerning the DOE could, I believe, be challenged by the states, and, if won, the department could be eliminated. Similarily, the green laws.

The argument the feds often use to gain power where they do not have it is the General Welfare Clause. Perhaps some day the states will challenge the argument. I think the feds would lose.

Originally Posted by Ikari

How unconstitutional are we talking about? If it's death camps, then you react through violence and revolution. If it's improper law that doesn't necessarily rob the individual of life, liberty, or property then it can be a slower response either through the election of officials, petitioning the legislature, protest, etc.

That process is far too slow and only will work if the majority agree that an unconstitutional law is, in fact, wrong and needed to be repealed or changed. Take, for example, CCW permits; they are unconstitutional, yet they are very popular among those that do not wish others to be armed (liberals and criminals?) and they generate considerable 'extra' revenue for the state, county or city that issues them from the fees charged (as well as from those fined for not complying with them).

Originally Posted by jimbo

I do not think your basic premise is correct. You do not necessarily have to break a law to contest it. Several states are doing that now in the case of UHC. Your other premise concerning the DOE could, I believe, be challenged by the states, and, if won, the department could be eliminated. Similarily, the green laws.

The argument the feds often use to gain power where they do not have it is the General Welfare Clause. Perhaps some day the states will challenge the argument. I think the feds would lose.

Thank you for the reply.

How else can you challenge a CCW law other than by either ignoring it or by appealing a conviction for violating it? You can't legally sue, or claim damages for something that did not happen to you, can you?

The states are often reluctant to challenge laws that give them money, after all, the alternative is that they must get these funds by raising taxes locally to replace the 'free' federal funds. This is why the states (for the most part) do not argue about illegal aliens (as long as they are paid for caring for them) and federal 'education aid' (as long as the rewards seem to outweigh the strings). Note the huge increase in 'special needs' designations for K-12 students, since each is worth money in extra federal 'subsidies'. ;-)

I agree that the commerce clause and the general welfare clause have been streached far beyond any reasonable limits, just as the 'privacy finding' was invented for a very specific purpose and now may be streached to fit many other 'good' causes.

Originally Posted by ttwtt78640

How else can you challenge a CCW law other than by either ignoring it or by appealing a conviction for violating it? You can't legally sue, or claim damages for something that did not happen to you, can you?

The states are often reluctant to challenge laws that give them money, after all, the alternative is that they must get these funds by raising taxes locally to replace the 'free' federal funds. This is why the states (for the most part) do not argue about illegal aliens (as long as they are paid for caring for them) and federal 'education aid' (as long as the rewards outweigh the strings). Note the huge increase in 'special needs' designations for K-12 students, since each is worth money in extra federal 'subsidies'. ;-)

I agree that the commerce clause and the general welfare clause have been streached far beyond any reasonable limits, just as the 'privacy finding' was invented for a very specific purpose and now may be streached to fit many other 'good' causes.

I think you could challenge the CCW laws based on the fact that you are forced to pay a fee to exercise your rights or take a class. You could do this even if you did not obtain the license. No need to violate the law to challenge. Think of this similar to the poll taxes. Struck down on Constitutional grounds. I am not aware of anyone voting in violation, being arrested, then appealing.

I agree that one of the real problems is that states will not challenge the feds on practices such as education as long as they get their share.