From: trajan@cwis.unomaha.edu (Stephen McIntyre)
Subject: The Courts and "De Facto Law" (was Re: Separation of Church & State)
Organization: University of Nebraska at Omaha
Date: Sat, 26 Sep 1992 16:53:40 GMT

fcrary@ucsu.Colorado.EDU  writes:

> trajan@cwis.unomaha.edu (Stephen McIntyre) writes:

>>Here's a good question for you and/or anyone else who may be reading
>>     this.  If a legislature (federal, state, etc.) passes a law
>>     knowing such a law is unconstitutional (whether before they
>>     passed it or after being told of it by the courts), 1) who 
>>     has the power to consider such a law unconstitutional...

> _Anyone_ has the power to consider a law unconstitutional (the people,
> after all, have the freedom to think whatever they like...) However,
> as a practicle matter, most people's opinions don't matter much...

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?  Well, I know I don't, nor do you, 
     nor does the President or his Cabinet, nor does the 
     majority of the people.  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.  Which leads, of course, to my second
     question...

> >     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 that seventy-
     five years ago a state legislature passes a series of 
     measures called the "blue eyes laws," which are laws that
     restrict some of the freedoms of those with blue eyes.  
     For example, one law states "any persons whose eyes are
     blue shall attend school in a separate facility from those
     whose eyes are of a different color."  Another law says
     "anyone living within the borders of this state and whose
     eyes are of a bluish color shall not be allowed to vote in
     local, state, and federal elections."  Other laws disallow
     blue-eyed people from serving in government, using public
     restrooms, driving on state-supported highways, and on and
     on.
     
As we all know, the states have a power called the "police
     power," and are thus able to enforce all laws passed by
     their legislatures as long as such laws only affect
     what takes place within their borders.  The legislature
     in our case gave power to the state courts to enforce
     the "blue eyes laws," which they did since such laws
     were, in their view, constitutional.  The legislature
     also required all state-wide police to arrest and book
     any person caught breaking the law, which the police did
     most happily because i) it was their job and ii) since
     only those without blue eyes could serve on the police
     force, it didn't really bother them to enforce the
     "blue eyes laws."
     
As the years went by, blue-eyed people were slowly segregated
     from the rest of their neighbors.  In cities, blue-eyes
     (as the blue-eyed people are now called) were left in
     inner-cities as brown-eyes, green-eyes and all manner of
     other "eyes" went to the suburbs.  With the non-blue-eyes
     went the good jobs; because the good jobs went with them,
     housing in the inner-cities fell into disrepair and the
     school districts received less money.  Unemployment rose,
     as did general dispair amongst the blue-eyes, who resorted
     to other means, such as drugs and alchohol, to alleviate
     their misery.  City ordinances were passed, allowing 
     private business to not serve blue-eyes if they did not
     want to (because, as you know, what is private is private,
     meaning the government shouldn't interfere as to what 
     goes on in private.)
     
In the rural areas, the blue-eyed population was sparse.  The
     schools, for instance, were affected by this lack of 
     population: since blue-eyes were to be taught in
     separate facilities, and since only ten to twenty blue-
     eyed children could attend these schools (since there
     were only that many kids per area), the facilities began
     falling into disrepair-- most of the school district money
     went to the non-blue-eyed schools.  Over the years,
     teachers became hard to find (most of them citing a lack
     of pay) and soon many of the blue-eyes schools had no
     instructors.  You can probably begin to guess what 
     happened to the tykes' educations.
     
All in all, the discrimination caused by the laws of the
     state had a snowball effect and the plight of the 
     blue-eyes has become increasingly larger.  On top of that,
     the discrimination that was once only caused by law
     had now become ingrained into the non-blue-eyes
     themselves.  They see the blues (as they were now 
     called) as inferior, children not to be tolerated and/
     or associated with.  Seventy-five years ago, blues
     and non-blues intermingled, even married one another.
     Today, it is socially unacceptable to even be friends
     with a blue; the only purpose a blue had in life was
     to serve non-blues and perform tasks no non-blue 
     would want.

Ah, but one of the blues finally has had it with the
     discrimination and challanges the state's voting law.
     Come election time, he marches into the voting place,
     pulls out a ballot, checks off the candidate of his 
     choice, and places the slip into the ballot box.  Right
     away he is arrested and thrown in jail.  Two weeks
     later the state court finds him guilty of a crime and
     sentences him two five years in prison with hard labor.
     He appeals to the state supreme court; he is still found
     guilty.  But he has his hopes up.
     
Six months have gone by, and he appeals his case in federal 
     court.  The federal court, in its wisdom, overturns his
     conviction, stating "his civil rights were violated."
     In addition, the court finds the state law to be
     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)?
     
But that was not the only law challanged by the blues.  One case
     in particular challanged the state's segregated schooling
     law.  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?  Which brings us to the question below... 

>>     and 3) do those who may have suffered because of the law 
>>     deserve just compensation for their suffering?
> 
> That would really depend on the nature of the law and the nature
> of the suffering.

In the example above, I have shown (I hope) a law (and/or a series
     of laws) that i) discriminates against a particular person
     or group and ii) causes that person or group to suffer.  So the 
     questioned is begged: "do those who may have suffered because
     of the law deserve just compensation for their suffering?"
     
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?  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?
     
Mayhaps we'll be able to answer the question of whether the courts
     do indeed create "de facto law," hmmm?

>                                         Frank Crary
>                                         CU Boulder

Not to worry, I'll be asking more questions in the future.  Keep
     up the good arguments; it's fun to research.
     
Stephen @Trajan

P.S.  I'll be placing this discussion under the title "The Courts
     and De Facto Law" because the argument is no longer relevant
     under the present title. 
     
Newsgroups: alt.politics.usa.constitution,alt.society.civil-liberty