USA vs USMisc RM 13 Misc reference material
Reference Material – For Information Only!
Over time we have collected a lot of reference material. We figured it would be better to share with all rather than just delete it.
Carlisle v. United States, 83 U.S. 147, 154 (1873),
‘The rights of sovereignty extend to all persons and things not privileged, that are within the territory. They extend to all strangers resident therein; not only to those who are naturalized, and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territory and owe a temporary allegiance in return for that protection.’ ”
In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942)
“These constitutional provisions employ the word ‘person,’ that is, anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title.
“We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.”
UNITED STATES v. MINKER, 350 U.S. 179 (1956)
Those safeguards would be imperiled if prior to the institution of the proceedings the citizen could be compelled to be a witness against himself and furnish out of his own mouth the evidence used…included within the protection of all the guarantees of the Constitution.
Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young (1983) 340 N.W.2d 805, 418 Mich. 1.
Common law, by constitution, is law of state. Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405.
“Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704, 1 Mich.App. 395.
The right to make common-law dedications is not abridged by the statutory regulations providing for dedications in certain specific ways. Village of Grandville v. Jenison (1890) 47 N.W. 600, 84 Mich. 54, affirmed 49 N.W. 544, 86 Mich. 567.
The common law is in force in Michigan , except so far as it is repugnant to, or inconsistent with, the Constitution or statutes of the state. Stout v. Keyes (1845) 2 Doug. 184, 43 Am. Dec. 465.
“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.”
Code is “not the law” (In Re Self v Rhay, 61 Wn (2d) 261) defined by Black’s Law Dictionary as prima facie, which is color of law. Color is “counterfeit or feigned”.
The real law is the common law as described in the above case and the code itself. The People are not “subject to law” generally (Yick Wo v Hopkins, 118 US 356, 370) except for the criminal codes that are codified common law. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins , 118 U.S. 356 (1886).
“He is not to substitute even his juster will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent, the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11, 1919 , entitled, “Is there a Common Will?”
“. . . The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).
“In the United States , Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia , 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins , 118 U.S. 356, 370 (1886).
“We the people… do ordain and establish the Constitution for the United States of America .” See: Preamble to the U.S. Constitution (1789).
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” See: Article IX, U.S. Constitution.
“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden, 27 U.S. 1
No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. See: New Orleans Gas Co v. Louisiana Light Co , 115 U.S. 650 (1885).
For it can never be maintained in any tribunal in this country that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States . . . the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest. See: Ohio Life Ins. & Trust Co. v. Debolt , 16 How 415, 428-9.;
The phrase as used in the constitution does not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory. The people would be made to say to the houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you shall not do the wrong unless you choose to do it.’ See: Per Bronson, J., In Taylor v. Porter, 4 Hill (N.Y.) 140, 40 AM, Dec 274.
People are supreme, not the state. See: Waring v. the Mayor of Savannah , 60 Georgia at 93.
Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Dict. (1870).
I believe there are more instances of the abridgement of the freedom of the people by the gradual and silent encroachment of those in power than by violent and sudden usurpations. See: James Madison.
The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.
What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304 (1795).
A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York , 154 NY 61; 47 NE 1096.
The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people. . . . The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler , 297 U.S. 1.
The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.
But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262, 101, N.W. 74; Cook v. Iverson, 122, N.M. 251.
In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that the men acting by virtue of delegated powers may do, not only what their powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.
There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio, 392 U.S. 39 (1967).
CRIMINAL LAW & PROCEDURE PEOPLE v. THOMPSON, No B 176808 ( Cal. 2d App. Dist. November 17, 2004 )
Warrantless entry into a residence to detain a suspect for removal outside for possible identification and possible citizen’s arrest does not fall within the “hot pursuit” exception to the Fourth Amendment.
BARRETT v. STEUBENVILLE CITY SCH., No. 03-4373 (6th Cir. Nov 15, 2004 )
Parents have a constitutionally protected liberty interest in raising and directing the education of their children and a state employer cannot condition employment upon the waiver of that right. http://caselaw.lp.findlaw.com/data2/circs/6th/034373p.pdf
“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987
Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. (Yick Wo vs. Hopkins, U.S. 356 (1886).
“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935).
“In the United States , Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Yo v. Hopkins, 118 U.S. 356, 370.
“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey: the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 27 U.S. 1
“The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.”
City of Dallas v Mitchell, 245 S.W. 944
HURTADO v. PEOPLE OF STATE OF CALIFORNIA , 110 U.S. 516 (1884)
at page 533 of the ruling on constitutional rights held by the People, “Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’ ”
at page 535 of the ruling, “It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power.”
CHICAGO & G. T. R. CO. v. WELLMAN, 143 U.S. 339 (1892)
at page 345 of the constitutional ruling of rights retained by the people,
“Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”
MUTUAL LOAN INSURANCE CO. Vs MARTELL, 222 US 225
at page 233 of the ruling on constitutional rights of the People,
“Certain general principles, however, must be taken for granted. It is certainly the province of the State, by its legislature, to adopt such policy as it seems best. There are constitutional limitations, of course, but these allow a very comprehensive range of judgment. And within that range the Massachusetts statute can be justified. Legislation cannot be judged by theoretical standards. It must be tested by the concrete conditions which induced it.”
Supreme Court Justice Brandeis spoke, in the case of Olmstead v. United States when he said: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the laws scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by it’s example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—-would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator ”
“A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority.”Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L.Ed. 206; 34 S.Ct. 92; Sage v. New York , 154 NY 61; 47 NE 1096.
U S v. LEE, 106 U.S. 196 (1882)
“Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, [106 U.S. 196, 209] there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.”
“The term [liberty] …denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of this own conscience… The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action. “Meyer v. Nebraska, 262 U.S. 390, 399, 400.
No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. (See police power) New Orleans Gas Co. v. Louisiana Light Co., U.S. 650, 667.
For it can never be maintained in any tribunal in this country that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States…the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest. (See police power) Ohio Life Ins. & Trust Co. v. Debolt, 16 How 415, 428-9.
The phrase as used in the constitution does not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory. The people would be made to say to the houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you shall not do the wrong unless you choose to do it.’ Per Bronson, J., In Taylor v. Porter, 4 Hill (N.Y.) 140, 40Am, Dec. 274.
People are supreme, not the state. Waring vs. the Mayor of Savannah , 60 Georgia at 93
Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. 2 Dall. 471; Bouv. Law Dict (1870).
The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. First trust Co. v. smith, 134 Neb. ; 277 SW 762.
What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws established.” Van Horne v. Dorrance, 2 Dall 304.
The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people… The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restriction except the discretion of its members. (Congress) U.S. v. William M. Butler.
The people themselves have it in their power effectually to resist usurpation, without being driven to an appealing arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.
But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intend that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. State v. Sutton, 63 Minn. 147, 695 WX N.W., 262, 30 L.R.A. 630, 56 Am. St. 459; Lindberg v. Johnson, 93 Minn. 267, 101, N.W. 74; Cook vs Iverson, 122, N.M. 251.
In this state, as well as in all republic, it is not the legislation, however transcendent its powers, who are supreme—but the people—and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that the men acting by virtue of delegated powers may do, not only what their powers do not authorize, but what they forbid. Warning v. the Mayor of Savannah, 60 Georgia, P. 93.
There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. Terry v. Ohio, 392 U.S. 39 (1967).
Constitution extends to equal protection of the laws to people, not to interest. Taylor vs McKeithen, 499 F.2d 893, C.A. La 1974.
JONES v. STATE BOARD OF EDUCATION OF TENNESSEE ET AL. 397 U.S. 31;90 S. Ct. 779;25 L. Ed. 2d 27
Moreover, it is far too late to suggest that since attendance at a state university is a “privilege,” not a “right,” there are no constitutional barriers to summary withdrawal of the “privilege.” Such labeling does not resolve constitutional questions, as we recently noted in Shapiro v. Thompson, 394 U.S. 618, 627 n. 6. The doctrine that a government, state or federal, may not grant a benefit or privilege on conditions requiring the recipient to relinquish his constitutional rights is now well established. E. g., Cafeteria Workers v. McElroy, 367 U.S. 886, 894; Sherbert v. Verner, 374 U.S. 398, 404; Speiser v. Randall, 357 U.S. 513, 519-520; Garrity v. New Jersey, 385 U.S. 493, 499-500; Kwong Hai Chew v. Colding, 344 U.S. 590, 597-598; [*6] Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583, 593-594; see Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-1454 (1968); Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968). As stated in Homer v. Richmond, 292 F.2d 719, 722:
“One may not have a constitutional right to go to Baghdad , but the Government may not prohibit one from going there unless by means consonant with due process of law.”
This does not mean that the whole panoply of the Bill of Rights is applicable to student dismissal proceedings. It does mean, however, that where there are “constitutional restraints upon state and federal governments” in dealing with the persons subject to their supervision, the persons in question have “a constitutional right to notice and a hearing before they can be removed.” Cafeteria Workers v. McElroy, supra, at 898.
TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL. 393 U.S. 503;89 S. Ct. 733;21 L. Ed. 2d 731
The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e. g., West Virginia v. Barnette, 319 U.S. 624 (1943); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F.Supp. 174 (D. C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968).
In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson…..The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and [*11] of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
MICHAEL A. NEWDOW v. U.S. CONGRESS, 328 F.3d 466
The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties. As Justice Jackson recognized: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, [*9] and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943). It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not “test[] the integrity of . . . democracy.” It makes democracy vital, and is one of our proudest heritages.
Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to “say what the law is,” Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803), we may decide constitutional issues without regard to popular vote, political [* 10] consequence, or the prospect of future career advancement. n3 Most federal judges do not question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or “focus groups” to influence our opinions, even indirectly.
Alexander Hamilton was admirably cognizant of the danger of relying on temporary political whimsy:This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that [*12] we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.
The Declaration of Independence contains multiple references to God. The founders claimed the right to “dissolve the political bands” based on “the Laws of Nature and of Nature’s God.” The most famous passage, of course, is that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Subsequently, the signatories “appeal[] to the Supreme Judge of the world to rectify their intentions.”
United States v Dougherty, 473 F 2d 1113, 1122.
The court states, “…Judge Miller, joined by Judges Prettyman, Danaher And Bastian, stated that the pro se right is statutory only, and therefore (a) defendant must assert the right in order to be entitled to it and (b) in any event no reversal was required since no prejudice could be discerned” “The Government says the pro se right is statutory and subject to ‘extensive qualifications, ‘discerning in the decisions seven ‘factors’ on the basis of which the pro se right may be partially or entirely denied.”
Von Hoffman v. City of Quincy , 4 Wall. 535, 552.
“Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract ‘is the law which binds the parties to perform their agreement.'” RED CROSS LINE vs. ATLANTIC FRUIT COMPANY. 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274 February 18, 1924 Decided
FORUM FOR ACADEMIC & INSTITUTIONAL RIGHTS v. RUMSFELD, No. 03-4433 (3d Cir. November 29, 2004 )
Denial of plaintiff’s motion to enjoin enforcement of the Solomon Amendment, 10 U.S.C. section 983, is reversed where plaintiff is entitled to preliminary injunctive relief since it has demonstrated a likelihood of success on the merits of its First Amendment claims.