A famous Judge once said “If laws carry no penalties, what rights have you” and “another way to put that is; if there are no consequences for violating other peoples rights, what rights have they?”.
Rights and Laws are often established by a majority vote of the area inhabitants. Even in places where only citizens can vote by law or established policy, norms, and regulations; residents, visitors, or guests can often issue a proposal for the people who carry those rights to vote on.
Many laws don’t initially carry penalties, the people only vote on whether certain behaviors should be illegal or whether certain behaviors should never be outlawed. Laws made in persuance thereof often outline penalties or create a bridge between a National Document such as the US Constitution and National Legislation, such as the US Code.
If a law can be shown to be made in persuance of the US Constitution and not in conflict with any articles or amendments made so far; it becomes a Permanent Law of the United States, even if its not a Constitutional Amendment.
There are two laws that come to mind when studying Constitutional Law as excellent case studies in legislative analysis:
The Penalty for Deprivation of Rights Under the Color of Law
18 § 242 – US Code Title 18 sub section 242
This law establishes penalties for deprivation of rights. The penalties are:
- Up to 1 year in jail for a rights violation.
- Up to 10 years in jail if a bodily injury occurs during the rights violation.
- Up to life in prison if any of the following occurs during the rights violation.
- Death or an attempt to kill
- Kidnapping or attempted kidnapping
- Sexual abuse or attempted sexual abuse
Normally, a lawsuit would be filed for monetary damages against the victim and during the court proceedings, it would be found that a deprivation of rights also occured and evidence would be examined for establishment of penalties.
Deprivation of rights can include many things but most often in the United States it would be for violating rights established by the US Constitution, Bill of Rights, or Amdt. 9 and the UDHR.
Under the Color of Law can also fall under various categories and is often simplified to a person that had a position of trust. The context being that they gave the impression that they were entrusted to administer the law on behalf of the government and were untruthful about legality of behaviors or rights. This can be a legal guardian, significant other, large corporation, police department, employer, or actual government worker. The list would not be extensive and it would include anyone that coerced someone into certain behaviors or coerced them away from lawful expression after they giving the impression of being an authority figure with full awareness of the law.
Authorization to Conduct Action Against a Government Entity for Unlawful Removal of a Firearm
18 § 925a – US Code Title 18 sub section 925a
This law is made in persuance of Amdt. 2 and allows action against a State Government or a political subdivision responsible for erroneious denial of a firearm. This includes action against a department or division of the United States or against the United States itself.
It also allows for a court request that the erroneous information be removed and/or that a transfer be approved; and allows the court to order that reasonable fees be paid to the prevailing party through an attorney.
More Complex Analysis
These two laws are fairly straight forward in there meaning and reason for legislation. Its also fairly clear that if a law can be linked to US Constitution Art. 6 c. 2 then the law becomes permanent and it is difficult or not possible to repeal without re-establishing the US Constitution or new National Document.
Other laws, have a more complex analysis, including within the US Constitution, often date takes precedent:
~ laws which shall be made in pursuance thereof … shall be the supreme law of the land … anything in the constitution or laws to the contrary … not with standing.
This means that amendments to the US Constitution can not contradict anything that is already in the US Constitution or it becomes null and void, invalidated and of nill effect.
Amdt. 7, Art. 3 sec. 2, and Art. 4 sec. 1 vs Art. 1 sec. 1
In common law courtrooms, a Judge Magistrate is able to establish new laws based on perceptions and attitudes of the area inhabitants. This is often done in Europe and until recently, the UK and even the USA. Courtroom practices like these resulted in coining of the phrase “Don’t legislate from the bench”.
The point is that things are done slightly differently in other countries and were done differently when the United States was established. In a Magistrate Court, a Member of Parliament might bring surveys on the attitudes of the people regarding a specific court case after distributing newspaper articles and collecting interviews from people standing near their workplace or having responded to a brief knock on the door for inquiry.
While civil lawsuits in the United States allow re-examination of court proceedings according to the rules of common law (Amdt. 7) , there are several limits placed in court proceedings regarding an accused, suspect, or perpretrator.
- Art. 1 sec. 9 – No ex post facto law shall be passed
- Amdt. 5 – Due process of law in criminal cases
- Amdt. 7 – Right to trial by jury in civil proceedings
- Amdt. 7 – Right to Jury Trial and Common Law Court Proceedings
- Amdt. 5 – No person shall be subject to jeopardy twice for the same offence.
- Amdt 6. – The accused shall enjoy a Right to a Speedy Trial
- Amdt 6. – The accused shall have a Right to a Public Trial and to seek witnesses in their favor
Art. 4 sec. 1 makes the court proceedings of each state final as long as due process is followed and there are no deprivation of rights. Under Amdt. 7 a person can request that their court record be readjudicated and under Amdt. 5, they can request to not be put in jeopardy again for the same offense.
Art. 3 sec. 2 establishes Jurisdiction for various court proceedings. This can be compared to Amdt. 11 for a complex analysis that is out of scope of this conversation but relevant to the topic.
Regarding Common Law and Case Law, i.e. laws established during the conclusion of court proceedings; US Constitution Art. 1 states “All legislative power herin granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”.
This means that the US Judiciary can still follow the rules of common law but that they are limited in its implementation within the United States. Often, rather than issuing a case law, a Judge or jury must issue a legislative proposal to Congress to curtail the behavior and establish penalties in future court proceedings but the current court proceedings must be adjudicated under currently established law. It is unlikely a defendant will agree to a harsher penalty than what was established at time of arrest or complaint without coercion as well.
Summary of Analysis
Judges and Court Magistrates working within the United States must follow the US Constitution when prosecuting Citizens. This may not be the case when prosecuting foreigners under foreign jurisdiction and using a US Courthouse as a venue. Regardless of Jurisdiction and Established Law, most legal analysis works similarly; the relevant laws must be examined, evidenced reviewed, itemized and correlated to the proceedings, and witnesses on either side can be invited to a hearing to explain what they saw, heard, or felt during an incident, situation, or circumstance being reviewed in a court hearing.
Judges additionally make the following during a court proceeding:
- Decisions
- Determinations
- Rulings
- Findings
- Summaries
- Orders
Often times the words are used interchageably because of vocabularies but are most appropriately and formally used as follows:
Determinations are made based on case analysis, rulings are set based on Title 28 most often in the United States, they allow a Judge to establish the rules the attorneys will follow if they are unfamiliar with the required court proceedings; findings are often made by attorneys but a Judge could find that certain evidence, motions, or statements are inadmissible and that they would be in violation of due process if they were allowed to continue, determinations are often made when a Judge has come to a conclusion about allowed next steps, this can often allow them to make a decision such as dismissing a case, transferring to a different venue, or requesting desired penalties from the responsible attorney. Decisions can also be made when their is no established court proceedings and they are not legislating inside a courthouse with their decisions. Finally, summaries are a concise overview and conslusion of court proceedings, and orders Judgements that are to be passed to the executive branch for administrative duties.
Laws made in persuance thereof go through the same court process as any other laws, legislation, procedures, or courtroom rules that are based on established law. Some attorneys begin all case analysis with a constitutional compliance review and others start with facts and evidence and leave constitutional compliance for the appeals process.
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