From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: The Courts and "De Facto Law" (was Re: Separation of Church & State)
Organization: University of Colorado, Boulder
Date: Tue, 29 Sep 1992 01:40:28 GMT

In article <1992Sep26.165340.16009@news.unomaha.edu> trajan@cwis.unomaha.edu (Stephen McIntyre) writes:
>Maybe I should be a little more clarifying.  Although anyone 
>     may consider a law unconstitutional (since consideration
>     concerns an genralized opinion), who has the right-- or
>     even better, who has the foundation-- to declare such a 
>     law unconstitutional? 

As I said: _Anyone_ can declare a law unconstitutional. The only
issue is the ability to force the rest of the government to accept
this. In practice, only someone on the same or a higher level of
government can make this stick, or even tries: A policeman can
declare a law unconstitutional and refuse to enforce it. Unless his
superiors agree, however, he is likely to loose his job (which is why
this never happens...)

>      Well, I know I don't, nor do you, 
>     nor does the President or his Cabinet...

The President certainly can: He determins which laws will be vigorously
enforced, which will be only nominally enforced, and which will be
neglected entirely. A President can say he thinks a law is unconstitutional
and refuse to enforce it.

>     I do know that, because of the
>     establishing case of Marbury v. Madison, the Court does
>     have the right to declare such a law (or set of laws)
>     unconstitutional....

Not exactly: The Court _claimed_ the authority to have the final word
on questions of constitutionality. Except for a few cases, the rest of
the government has gone along with this (President Jackson was a notable
exception.) But the reason has to do with poitics, not the Constitution:
The people have confidince in the Court and its impartiality (at least
compared the the rest of the government...) As a result, the people
_want_ the President and Congress to accept the Court's rulings. Therefore,
these elected officials (who want to be re-elected) almost always go
along with the Supreme Court.

>> >     2) who has the power to make sure such a law is unenforcable, 

>> Anyone in government, to the extent of their legal powers: Courts
>> may refuse to convict anyone, on the basis of an unconstitutional
>> law. Law enforcement officers may refuse to arrest anyone under
>> such a law, etc...

>Let's take an example here, shall we?  Let's say...

>[Hypothetical example of a state segregation law]

>     [The Supreme Court rules the law]
>     unconstitutional under the Fourteenth Amendment's Due 
>     Process clause.  Question 1:  can the court force the
>     state not to enforce this law (since, according to 
>     earlier arguments, the court has no such power)?

No, the Court has no such power. However, they can issue a order
requiring the state to stop enforcing the law. The state might
ignore the Court order. In that case, the Court could issue an
order the the President, to enforce the earlier Court order. If
he refuses, there is really nothing the Court can do. Usually, 
the President will either agree with the Court or (fearing public
reaction) accept their ruling anyway, and enforce the Court order.
This is essentially how the schools in Arkansas were desegregated,
(which required the use of the National Guard by the President...)

The State could have challenged the Court, and the President's
efforts to enforce this. This is very rare and very dangerous, but
it has happened: In 1792, the state of Georgia threatened to _shoot_
anyone trying to enforce a particular Supreme Court ruling (this was
settled by the Eleventh Amendment, that satisfied the State, before
any violence errupted.) In 1799 (1798?), the States of Virginia and Kentucky
declared the Alien and Sedition Acts to be unconstitutional and
void. Again, the laws went out of effect before any confrontation 
could occur. In 1861, South Carolina similarly declared federal 
anti-slavery laws void and unconstitutional. _That_ led to the
sucession of that state, and the Civil War. So the states can 
declare a law or Court ruling unconstitutional, but the only way they
can enforce their declaration is threat and civil war. There aren't 
any states currently willing to that that kind of risk...

      
>     ...The Court found this law to be unconstitutional.  After
>     answering question 1 above for this situation also, here's
>     question 2: can the court force the state to desegregate
>     the schools?

The Court can order them to desegregate, and order the President to
enforce this. However, the Court's authority does not extend to 
telling them _how_ to desegregate: They can order that the state
establish non-discriminatory admissions and enrollment policies,
but not make court-invented policies and impose them on the 
State.

>Under the Civil Rights Act of 1871, Rev. Stats. S1979, we find in
>     42 U.S.C. S1983 the following for "civil action for
>     deprivation of rights": 

>     Every person who, under the color of any statute, ordinance,
>     regulation, custom, or usage, or any State or Territory,
>     subjects, or causes to be subjected, any citizen of the
>     United States or other persons within the jurisdiction
>     thereof to the deprivation of any rights, privileges or
>     immunities secured by the Constitution and laws, shall be
>     liable to the person injured in an action of law, suit in
>     equity, or other proper proceedings for redress.

>Now that we know that a person deprived of their rights and who
>     was injured (suffered) because of the law which deprived them
>     of their rights can seek compensation (or equity) for their
>     injury, the question is: how far can a court go in finding
>     a remedy for the injury (or suffering) caused by the deprivation
>     of certain rights by the state?

The courts can only judge the merits of a claim, and the applicability
of the law to the claim. The courts can not go out on their own
and "find" a remedy. Those injured can sue the State, asking the
court to award a specific compensation or remedy for the damage done
to them. The court then judges if the damage was real, and if the 
nature of the damage and the desired compensation are within the
scope of the law. If so, they can order the state to pay the
damages.

>     For instance, can a court
>     order the state to desegregate the schools not only to 
>     remedy an injurous law but to also remedy future injuries?

There is alot of legal hair splitting over this: The federal cases
will only hear "real cases and contraversies" brought by someone
with "standing." This means only cases where some actual harm
has been done, and the person involved must be the one harmed. They
will _not_ hear hypothetical cases, or cases concerning some supposed,
future wrong. The only exception is "common cause" suits, brought by
at least one person with standing, but on behalf of everyone else
who might have suffered (or in some cases who might, in the future,
suffer.) There are alot of restrictions on common cause suits, and
_someone_ involved must have actually suffered real harm.

                                             Frank Crary
                                             CU Boulder

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