The judiciary doesn’t have cart blanche discretion, a common misconception. They are bound by the letter of the Law and are held to a higher standard of strict interpretation. If they or the lesser courts are caught abusing this power, they are subject to impeachment or worse: tribunals, as I understand it. As this is a border issue, I don’t see why tribunals wouldn’t also be on the table, personally.
From Page 12 of Carl-Miller-Law-Study.pdf which can be downloaded here.
Or you may view the entirety of Carl Miller Complete here.
Am Jure 16. Sec 114 - 117: Various facts and circumstances extrinsic to the constitution are
often resorted to by the courts to aid them in determining its meaning. As previously noted, however,
such extrinsic aids may not be resorted to where the covision in the question is clear, and
unambiguous in such a case the court must apply the terms of the constitution as written. They are not
at liberty to search for meanings beyond the instrument.
Am Jure 16, sec 165: Since the constitution is intended for the observance of the judiciary as
well as other parts of government, and the judges are sworn to support its provisions (sworn…as in
Oath of office), the courts are not at liberty to overlook or disregard its commands or countenance
evasions thereof. It is their duty in authorized proceedings to give full effect to the existing
constitution, and to obey all constitutional provisions irrespective to their opinion of the wisdom or the
desirably of such provisions, and irrespective of the consequences. Thus 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 delivery of judgment of the tribunal before which the validity of the
enactment is directly drawn into question. If the constitution prescribes one rule, and the statute
another, in a different rule, it is the duty of the court to declare that the constitution and not the statute
governs in cases before them for judgment.
They are telling the judge “You have got to rule in favor of the constitution”. I‟m asking the
judge to do his duty under his sworn oath of office, and uphold the United States Constitution as he
swore he would under Article XXXX, paragraph XXX [ Look up for your state] in this state, which
says “That he shall swear to protect and defend the constitution from all enemies foreign and
domestic, and he will perform his duties to the best of his abilities so help him God”
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Am Jur 2nd sec 177 Declaratory judgments. Declaratory judgment actions have often been
utilized to test the constitutionality of a statute and government practices. The uniform declaratory
judgments act makes specific provisions of the determination of construction or validity of statutes or
municipal ordinance by declaratory judgment and is considered to furnish a particularly appropriate
method for the determination of controversies relative to the construction and validity of the statute.
And of ordinances. The federal declaratory judgment act has been invoked frequently as a means of
assaying the constitution of congressional legislation.
A plaintiff can have a declaratory judgment action on the constitutionality of either the federal
or state statute by a single federal judge; so long as he does not ask to have the operation of the statute
enjoined.
A court may grant declaratory relief unless there is a case in controversy before the court. That
is the dispute must consist of specific adverse claims based upon present rather than future or
speculative facts on which to base the education. You have a right to demand a declaratory judgment.
16 am jur sec 255. In all instances when the court exercises its power to invalidate legislation
on constitutional grounds, the conflict of the statute with the constitution must be irreconcilable. The
court is without authority to declare a statute unconstitutional unless it is in positive or in direct
conflict with the statutes or with the constitution.
Thus a statute is not to be declared unconstitutional unless so inconstant with the constitution
that it cannot be enforced without a violation thereof. Because that would be violating the constitution:
Marbury v Madison.
A clear incompatibility between law and the constitution must exist before the judiciary is
justified in holding the law unconstitutional. This principle of course is in line with the rule that doubts
in the constitutionality should be resolved in favor of the constitutionality and the beneficiary (you).
Am Jur 256: The general rule is that an unconstitutional statute, whether federal or state,
though having the form and name of law is reality no law; but is wholly void and ineffective for any
purpose. Since unconstitutionality dates from the time of the enactment, 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. Such a statute leaves a question that it purports to settle just as it would be had the
statute not ever been enacted.
No repeal of an enactment is necessary since an unconstitutional law is void. The general
principle follows that it imposes no duties, confers no rights, creates no office, bestows no power or
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authority on anyone, affords no protection, and justifies no acts performed under it. A contract which
rests on an unconstitutional statue 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.
Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines
paid. A void act cannot be legally inconsistent with a valid one, and an unconstitutional law cannot
operate to supersede an existing valid law. Indeed insofar as a statute runs counter to the fundamental
law of the land, it is superseded thereby. Since an unconstitutional statute cannot repeal or in any way
affect and existing one, if a repealing statute is unconstitutional, the statute which it attempts to repeal
remains in full force and effect. Where a clause repealing a prior law is inserted in the act, which act in
unconstitutional and void, the provision of the repeal of the prior law will usually fall with it, and will
not be permitted to operate as repealing such prior law.
The general principle stated above applies to the constitution as well as the laws of the several
states insofar as they are repugnant to the constitution and the laws of the United States. Moreover a
construction of a statute which brings in conflict with a constitution will nullify it as effectively as if it
had in its expressed terms been enacted in conflict therewith. Anything passed in conflict with the
constitution is clearly unconstitutional.
Am Jur 257: The actual existence of a statute prior to the determination that it is
unconstitutional is an operative fact, and may have consequences which cannot 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, and acted
upon accordingly and of public policy in the light of the nature, both of the statutes and of its previous
application demand examination.
It has been said that an all-inclusive statement of the principle of absolute retroactive
invalidity cannot be justified (It would be ex-post facto). An unconstitutional statute is not necessarily
a nullity; it may have indeterminate consequences binding upon the people.
Am Jur 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.
Am Jur 260: Although it is manifest that an unconstitutional provision in the statute is not
cured because its included in the same act with valid provisions, and that there are no degrees of
constitutionality. So that an act is either constitutional or it is unconstitutional. (So if you have a
statute that is partly constitutional and partly unconstitutional, it is ALL unconstitutional.)
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For the last half hour I have been trying to hammer home the power of this book (the
constitution). If you know what‟s in this book, I‟m telling you that you are in full possession of your
American citizenship. If you don‟t know what‟s In this book, you are going to be a slave; subject to
the whim of extra-judicial people who want to tell you what to do, when to do it, how to do it, and
how high to pack it.
Learn your book. Know your arguments backwards and forwards. Don‟t let somebody come
and tell you what is not the law, don‟t let them tell you that you don‟t have any rights. “I love it when
these guys tell me I don‟t have any rights…I say „well if you believe that, let‟s go to court, and at the
end of the day we‟ll see who owns who…But I‟m going to tell you right now that if you violate any of
my constitutional rights I will sue your sox off and attach everything you have; Bank, business, and
home‟.”
