What Happens When States Knowingly Pass Unconstitutional Laws?

[DougC]

Not much as discussed in this Washington Gun Law video. Spoiler alert: watch recommended only for political junkies, policy wonks, legal wannabe and those who 'geek' out on this sort of stuff. And any and all 2A advocates who want to make a difference with elected leaders.

"Washington Gun Law President, William Kirk discusses a more prevalent political trend which is State legislatures that knowingly pass laws that are either contrary to the US Constitution or well-established Supreme Court Precedent."

If you don't have time or interest to watch the video at least read the description to get a few key points being made.

As a political junkie of sorts when NY, NJ and OR pass very unconstitutional laws they achieve at least two political goals. Current and future anti-gun pols can cite the laws as protecting the people when running for re-election. And if the state law is overturned many years later they can say we did all we can but the courts took away your law.

"

 

[Sasquatch]

Ultimately nothing happens when politicians pass bad laws, knowing its bad / unconstitutional. There *should* be criminal charges brought forth against every person authoring, sponsoring, and voting yes on blatantly unconstitutional laws, along with class action civil rights lawsuits brought on behalf of all effected persons. But none of that happens - and as noted, the pols who campaign on this shit pander to the weak-minded individuals who don't know any better, or those who share their twisted beliefs.

 

[etmo]

To play devil's advocate, it's arguably impossible to "knowingly" pass an unconstitutional law. Therefore, nothing could/should happen.

Why is it impossible:

1) you're using the word "pass" -- a single legislator can't "pass" a law. It takes a large number of them acting together, and even then you still need the President's or Governor's (if it's a state law) signature. How can you prove which legislators "knew" and which were just signing on to the bill for various other political reasons?
You're talking about throwing 51 Senators + hundreds of House members + the President in jail (or the state-level equivalent). That's cute. What law are they charged with violating? I'll wait here.

2) more down to Earth, even if they are happy to admit they think they "knew", they actually cannot know, because legislators/executive branch officials are not SCOTUS, therefore they don't "know" what is/is not unconstitutional. Even SCOTUS doesn't "know" beforehand, SCOTUS has to figure it out. And always remember Marbury vs Madison: "It is emphatically the province and duty of the Judicial Department to say what the law is."
Best you can have is they "believe" the law they're working to pass is unconstitutional. Again, what statute makes believing that a crime?

Keep in mind our Constitution was not handed down on stone tablets -- that's the Constitution of the United States or the Constitution of any state, including Texas. They can all be changed, so think about that when you draw up the charges...

 

[Sasquatch]

That's a cop out. The Constitution was not written for lawyers of the day - it was written to be understood by the layman. Politicians (who are often lawyers) try to play the game that its a living document subject to interpretation, and that lawyers with fancy black robes are needed to determine what the Constitution actually says and means, and that no layperson can understand it.

No - these assholes know exactly what they are doing. They know their laws don't pass muster with the Constitution, and they know that it is a long, expensive process for the aggreieved to challenge their bullshit laws, and they know that the average person affected or effected by their bullshit unconstitutional laws simply does not have the means to fund the legal battle that would be necessary to get to a point that the courts rule against them. They also know that its entirely possible for the politically driven political appointee lawyers in fancy black robes will rule in favor for their bullshit laws, knowing well and good that they are unconstitutional, but if some lawyer in a black robe says it IS constitutional, then by God it is.

And that's how we had slavery. That's how we had 3/5ths of a man. That's how we got segregation.

The courts don't "know" shit any better than any layperson who reads and has a functional brain. They just know that one hand pats the other, and both hands have a firm grasp on our hips as they're fucking the rest of us on everything from guns to taxes to our right to privacy.

Can the Constitution be changed? Yes, but not easily - and unless it IS changed, then it says what it says and what it says is not ambiguous.

And when it comes to arms and the rights thusly - "Shall not be infringed" are four words any third grader should be able to interpret - but somehow some asshole in a black robe can say "well, 'shall not be infringed' doesn't really mean 'shall not' - it really means that its really ok to sometimes infringe the **** out things, because guns are icky and scary and give you plebs the ability to toss us on our asses when you wake up and realize how badly we've shit on you all these years"

Sorry, just because SCOTUS rules something is Constitutional doesn't actually make it so either, because like you said about the Constitution being changed - so does SCOTUS rulings. And that's how we went from nation-wide abortion, to going back to the individual states deciding if and how and when a woman can kill her unborn child. Their piss poor "interpretation" of plain language is also how Obamacare was allowed to stand - despite Congress says "its not a tax" - the court came out and said "well, it doesn't say its a tax, and Congress says its not a tax, but we're going to uphold this shit and call it a tax, so **** off and let us get back to playing pinochle and grooming children with Barry and Big Mike"

 

[DougC]

Ultimately nothing happens when politicians pass bad laws, knowing its bad / unconstitutional. There *should* be criminal charges brought forth against every person authoring, sponsoring, and voting yes on blatantly unconstitutional laws, along with class action civil rights lawsuits brought on behalf of all effected persons. But none of that happens - and as noted, the pols who campaign on this shit pander to the weak-minded individuals who don't know any better, or those who share their twisted beliefs.

Couldn't it be so...except as the attorney in above video cites the 11th Amendment as protecting those acting in their official capacity giving them constitutional protection (10:00). They can't be sued as individuals for passing bad laws. Better solution is get law killed by not funding it or better yet vote on 1st Tue in Nov.

 

[Lonesome Dove]

According to all democrats we no longer have a Constitution same way we will soon have No American History. They are some of the dumbest objects on earth.

 

[Sasquatch]

Couldn't it be so...except as the attorney in above video cites the 11th Amendment as protecting those acting in their official capacity giving them constitutional protection (10:00). They can't be sued as individuals for passing bad laws. Better solution is get law killed by not funding it or better yet vote on 1st Tue in Nov.

Sounds like we need to do what the dems want - change the Constitution and remove any such protections for politicians or any lobbyist or individual or group that authors, inserts on the ballot, or votes for any bill that is passed and signed into law that is a blatant violation of said Constitution. Government stooges should have no protections from prosecution or persecution when they trample upon the rights of the people. Don't care if its an elected or appointed person doing said trampling.

 

[etmo]

Couldn't it be so...except as the attorney in above video cites the 11th Amendment as protecting those acting in their official capacity giving them constitutional protection (10:00). They can't be sued as individuals for passing bad laws.

In the end you're right, you'll never win a lawsuit against a politician for a bad law, but how you got there is a bit overbroad.

There's a critical distinction here that you might be missing, or perhaps it was missing in the video. State immunity coming from the 11A has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.

So states are immune, but not state officials.

Now factor in that this SCOTUS is originalist, meaning they believe laws mean what they meant at the time they were written (and some would do well to remember what "infringed" meant in 1792).

Well, the 11A was written for 1 reason, a case called Chisholm v Georgia. Chisholm was a dude who lived in South Carolina, but Georgia owed him money for supplies used during the Revolutionary War. He sued, and it went all the way to SCOTUS, but he won -- Georgia had to pay him.

So Congress freaked out and passed the 11A about 5 minutes later, with massive and sweeping support from legislators everywhere. Even a later decision, Hans v. Louisiana, noted that the nation reacted with "shock and surprise" that a person in state X could sue and win against state Y. So we're talking serious CYA by all the states. It had nothing to do with politicians, only to protect states from getting sued by citizens of other states or those filthy foreign types.

Later jurisprudence evolved around the 11A, and it can get complicated, but probably the case that is going to best guide any decision about suing politicians is Scheuer v. Rhodes, which held that there is not sovereign immunity, but only qualified immunity for officials, and that immunity varies according to the scope of discretion and responsibilities of the particular office involved and the circumstances existing at the time the challenged action was taken.

 

[popper]

They do it all the time, knowing someone has to sue to get it into the courts and citizens have NO standing.

 

[DougC]

From Washington Gun Law channel.
For the political junkies among the forum here is close up view of highlights and lowlights of Washington politicians making sausage (laws). This is a warning what can happen when liberals get control. We have have libs in TX just we don't let them run anything statewide. Blue cities are another matter. Background: Washington state has been trying for 7 years to pass a comprehensive ban on firearms and this year has a lot of momentum to get it into law with their democratic trifecta (control of legs and governor). This YouTube channel provides extensive coverage of WA, OR and CA 2A issues to learn more.

 

[PhulesAu]

Dammit, the short answer is Lawyrs Win.

 

[Army 1911]

You should be able to sue the Governor for signing unconstitutional laws. That is when it is official. The 11th only applies to federal folk not state. Maybe sue all who introduce such and vote for it as conspiring to over throw the constitution or trying to take away our civil rights.

 

[Axxe55]

You should be able to sue the Governor for signing unconstitutional laws. That is when it is official. The 11th only applies to federal folk not state. Maybe sue all who introduce such and vote for it as conspiring to over throw the constitution or trying to take away our civil rights.

CONSTITUTIONAL AND CIVIL RIGHTS ARE NOT THE SAME THING!

 

[etmo]

The 11th only applies to federal folk not state.

No, it does have a fair bit of applicability against non-federal entities. As I said before, states are exempt, but not state officials.

But also, SCOTUS has consistently refused to extend Eleventh Amendment sovereign immunity to counties, cities, or towns. SCOTUS ruled that counties have neither Eleventh Amendment immunity nor residual common law immunity in Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006)

Also see Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Moor v. County of Alameda, 411 U.S. 693 (1973); Workman v. City of New York, 179 U.S. 552 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890). for more 11A applicability against non-federal entities.

The common element appears to be that the state itself, or any interpretation where an agency or entity is acting as an arm of the state itself, will get immunity, but otherwise, no substantial 11A protections are available.

 

[NTXVet]

It seems the ordinary citizen never has standing and those with standing seem content to do just that: stand.

 

[jmohme]

Couldn't it be so...except as the attorney in above video cites the 11th Amendment as protecting those acting in their official capacity giving them constitutional protection (10:00). They can't be sued as individuals for passing bad laws. Better solution is get law killed by not funding it or better yet vote on 1st Tue in Nov.

The better solution would be for dumb ass American voters to wake up and quit sending the same criminals back to their cushy jobs. Replace them with real Americans that actually do respect the Constitution.
In the unlikely event that that ever were to happen. The new government should do the proper procedures to amend the 11th and then prosecute Pelosi and the other traitors to the full extent!

 

[red442joe]

That's a cop out. The Constitution was not written for lawyers of the day - it was written to be understood by the layman. Politicians (who are often lawyers) try to play the game that its a living document subject to interpretation, and that lawyers with fancy black robes are needed to determine what the Constitution actually says and means, and that no layperson can understand it.

No - these assholes know exactly what they are doing. They know their laws don't pass muster with the Constitution, and they know that it is a long, expensive process for the aggreieved to challenge their bullshit laws, and they know that the average person affected or effected by their bullshit unconstitutional laws simply does not have the means to fund the legal battle that would be necessary to get to a point that the courts rule against them. They also know that its entirely possible for the politically driven political appointee lawyers in fancy black robes will rule in favor for their bullshit laws, knowing well and good that they are unconstitutional, but if some lawyer in a black robe says it IS constitutional, then by God it is.

And that's how we had slavery. That's how we had 3/5ths of a man. That's how we got segregation.

The courts don't "know" shit any better than any layperson who reads and has a functional brain. They just know that one hand pats the other, and both hands have a firm grasp on our hips as they're fucking the rest of us on everything from guns to taxes to our right to privacy.

Can the Constitution be changed? Yes, but not easily - and unless it IS changed, then it says what it says and what it says is not ambiguous.

And when it comes to arms and the rights thusly - "Shall not be infringed" are four words any third grader should be able to interpret - but somehow some asshole in a black robe can say "well, 'shall not be infringed' doesn't really mean 'shall not' - it really means that its really ok to sometimes infringe the **** out things, because guns are icky and scary and give you plebs the ability to toss us on our asses when you wake up and realize how badly we've shit on you all these years"

Sorry, just because SCOTUS rules something is Constitutional doesn't actually make it so either, because like you said about the Constitution being changed - so does SCOTUS rulings. And that's how we went from nation-wide abortion, to going back to the individual states deciding if and how and when a woman can kill her unborn child. Their piss poor "interpretation" of plain language is also how Obamacare was allowed to stand - despite Congress says "its not a tax" - the court came out and said "well, it doesn't say its a tax, and Congress says its not a tax, but we're going to uphold this shit and call it a tax, so **** off and let us get back to playing pinochle and grooming children with Barry and Big Mike"

QFT

Joe

 

[DougC]

How Can I Tell If My Firearm Identifies As An Assault Weapon [in Washington State]?​

Washington Gun Law channel explains it all. After going through flow chart I think my single shot rimfire Anschutz Model 54 rifle over 30 inches in length with no secondary grip, barrel shroud, threaded barrel, suppressor (and something else) not on prohibited list bought in 1960s would not be a scary assault rifle. [BIG snark