Can (a part of) the constitution be declared unconstitutional? (user search)
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  Can (a part of) the constitution be declared unconstitutional? (search mode)
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Author Topic: Can (a part of) the constitution be declared unconstitutional?  (Read 1790 times)
Former President tack50
tack50
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« on: April 12, 2019, 07:20:01 AM »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

Yes, the US would be sovereign and have the power to commit a genocide if passed by a constitutional ammendment. At least legally.

In practice the US would still be sanctioned by and subject to international laws and courts it's still a part of (though those rarely, if ever, actually force countries to do something and the US could just unilaterally leave).
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