American Jurisprudence 2nd 1964 vol. 16 CONSTITUTIONAL LAW § 177 Generally 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 contract which rests on an unconstitutional statute creates no obligation to be impaired by subsequent legislation. No one is bound to obey an unconstitutional law and no courts are bound to enforce it. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. It is said that all persons are presumed to know the law, meaning that ignorance of the law excuses no one; if any person acts under an unconstitutional statute, he does so at his peril and must take the consequences. Pg. 403 - 405 American Jurisprudence 2nd 1964 vol. 16 § 359 Elements Personal liberty largely consists of the right of locomotion - to go where and when one pleases - only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, he will be protected, not only in his person, but in his safe conduct. Pg. 686 American Jurisprudence 2nd 1964 vol. 16 § 362 Nature of Right guaranteed The right of property is a fundamental, natural, inherent, and inalienable right….. In fact, it does not owe its origin to the constitutions which protect it, for it existed before them. It is sometimes characterized judicially as a sacred right, the protection of which is one of the most important objects of government. Pg. 691 American Jurisprudence 2nd 1964 vol. 16 § 373 Rights of Contract Liberty of contract involves, as one of its essential attributes, the right to terminate contracts, ….Valid contracts are property and as such are protected from being taken without just compensation, ….The United States Supreme Court has stated that freedom to contract is the essence of freedom from undue restraint on the right to contract. Other courts have stated that the liberty to make contracts includes the corresponding right to refuse to accept a contract or to assume such liability as may be proposed. The right of liberty of contract is inherent and inalienable. It belongs to every citizen by the law of the land; every man has the right freely to deal, or to refuse to deal, with his fellow men. Pg. 706 - 707 American Jurisprudence 2nd 1964 vol. 16 § 411 - Bills of Attainder Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial are bills of attainder prohibited by the Constitution. The singling out of an individual for legislatively prescribed punishment constitutes a bill of attainder prohibited by Article 1, § 9, clause 3, of the Federal Constitution. Pg. 751 – 752- sec.177 Generally 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 its 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. 16Am Jur 2d., Const. Law Sec. 70: “No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution.” 16Am Jur 2d., Const. Law Sec. 155: “Since the constitution is intendant for the observance of the judiciary as well as other departments of government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or counteract evasions thereof, it is their duty in authorized proceedings to give full effect to the existing constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom or the desirability of such provisions and irrespective of the consequences, thus it is said that the courts should be in our alert to enforce the provisions of the United States Constitution and guard against their infringement by legislative fiat or otherwise in accordance with these basic principles, the rule is fixed that the duty in the proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the delivered judgment of the tribunal before which the validity of the enactment it is directly drawn into question. If the Constitution prescribes one rule and the statute the another in a different rule, it is the duty of the courts to declare that the Constitution and not the statute governs in cases before them for judgment. 16Am Jur 2d., Const. Law Sec. 255: “In all instances, where the court exercise it’s power to invalidate legislation on constitutional grounds, the conflict of the statute, with the constitution must be irreconcilable. Thus a statute is not to be declared unconstitutional unless so inconsistent with the constitution that it cannot be enforced without a violation thereof. A clear incompatibility between law and the constitution must exist before the judiciary is justified holding the law unconstitutional. This principle is of course in line with the rule that doubts as the constitutionality should be resolved in favor of the constitutionality and the beneficiary.” 16Am Jur 2d., Const. Law Sec. 257: “The actual existence of a statute prior to determination, that it is unconstitutional is an operative fact and may have consequences which can not justify being ignored, when a statute which has been in effect for some time is declared unconstitutional, questions of rights claimed to have become vested of status of prior determinations deemed to have finality an acted upon accordingly and of public policy in the light of the nature, both of the statute and of it’s previous application demand examination. It has been said that in all inclusive statement of the principle of absolute retroactive inviolability cannot be justified. An unconstitutional statute is not necessarily a nullity it may have indeterminate consequences binding on the people. ”16Am Jur 2d., Const. Law Sec. 258: “On the other hand it is clear that Congress cannot by authorization or ratification give the slightest effect to a state law or constitution which is in conflict with the Constitution of the United States.” 16Am Jur 2d., Const. Law Sec. 260: “Although it is manifested that an unconstitutional provision in the statute is not cured because included in the same act with valid provisions and that there is no degrees of constitutionality.” Owen v. Independence 100 Vol. Supreme Court Reports. 1398:(1982) Main v. Thiboutot 100 Vol. Supreme Court Reports. 2502:(1982) “The right of action created by statute relating to deprivation under color of law, of a right secured by the constitution and the laws of the United States and comes claims which are based solely on statutory violations of Federal Law and applied to the claim that claimants had been deprived of their rights, in some capacity, to which they were entitled.” “Officers of the court have no immunity when violating constitutional right, from liability” (When any public servant violates your rights they do so at their own peril.) 16Am Jur 2d., Const. Law Sec. 70: “No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution.” 16Am Jur 2d., Const. Law Sec. 155: “Since the constitution is intendant for the observance of the judiciary as well as other departments of government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or counteract evasions thereof, it is their duty in authorized proceedings to give full effect to the existing constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom or the desirability of such provisions and irrespective of the consequences, thus it is said that the courts should be in our alert to enforce the provisions of the United States Constitution and guard against their infringement by legislative fiat or otherwise in accordance with these basic principles, the rule is fixed that the duty in the proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the delivered judgment of the tribunal before which the validity of the enactment it is directly drawn into question. If the Constitution prescribes one rule and the statute the another in a different rule, it is the duty of the courts to declare that the Constitution and not the statute governs in cases before them for judgment. 16Am Jur 2d., Const. Law Sec. 255: “In all instances, where the court exercise it’s power to invalidate legislation on constitutional grounds, the conflict of the statute, with the constitution must be irreconcilable. Thus a statute is not to be declared unconstitutional unless so inconsistent with the constitution that it cannot be enforced without a violation thereof. A clear incompatibility between law and the constitution must exist before the judiciary is justified holding the law unconstitutional. This principle is of course in line with the rule that doubts as the constitutionality should be resolved in favor of the constitutionality and the beneficiary.” 16Am Jur 2d., Const. Law Sec. 257: “The actual existence of a statute prior to determination, that it is unconstitutional is an operative fact and may have consequences which can not justify being ignored, when a statute which has been in effect for some time is declared unconstitutional, questions of rights claimed to have become vested of status of prior determinations deemed to have finality an acted upon accordingly and of public policy in the light of the nature, both of the statute and of it’s previous application demand examination. It has been said that in all inclusive statement of the principle of absolute retroactive inviolability cannot be justified. An unconstitutional statute is not necessarily a nullity it may have indeterminate consequences binding on the people.”16Am Jur 2d., Const. Law Sec. 258: “On the other hand it is clear that Congress cannot by authorization or ratification give the slightest effect to a state law or constitution which is in conflict with the Constitution of the United States.” 16Am Jur 2d., Const. Law Sec. 260: “Although it is manifested that an unconstitutional provision in the statute is not cured because included in the same act with valid provisions and that there is no degrees of constitutionality.” Owen v. Independence 100 Vol. Supreme Court Reports. 1398:(1982) Main v. Thiboutot 100 Vol. Supreme Court Reports. 2502:(1982) “The right of action created by statute relating to deprivation under color of law, of a right secured by the constitution and the laws of the United States and comes claims which are based solely on statutory violations of Federal Law and applied to the claim that claimants had been deprived of their rights, in some capacity, to which they were entitled.” “Officers of the court have no immunity when violating constitutional right, from liability” (When any public servant violates your rights they do so at their own peril.)
Posted on: Thu, 05 Jun 2014 04:03:22 +0000
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