And let me take that further.Arkansas Paul said:
Should every representative --
- who voted for The Stolen Valor Act;
- who voted for a law found to unconstitutionally restrict abortion:
- who voted for a law banning the burning of the American Flag;
Can't we sue the gun grabbers?
- Thread starter Fast Frank
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Should every representative --
In theory, we can sue anybody for anything, in the sense of drafting a complaint, getting summons issued and served, etc. You can sue a man for wearing a blue shirt on a Tuesday. Whether or not you can win such a suit is an entirely different matter. In the case of suing a man for wearing a blue shirt on a Tuesday, one should be prepared to defend against the counterclaim for abuse of process.
There is a world of difference, in terms of "legal posture," between: (a) challenging a law in the court system; and (b) seeking to hold legislators personally liable for passing a law later found to be unconstitutional.
There is a world of difference, in terms of "legal posture," between: (a) challenging a law in the court system; and (b) seeking to hold legislators personally liable for passing a law later found to be unconstitutional.
They can be held accountable at the polls.Midwest said:
ConstitutionCowboy
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Frank said:
You're trying awful hard to keep anyone from trying.
Spats said:
Yup. We close the barn door after the horse escapes. And it isn't holding them accountable. There is no consequence to losing an election. They don't get thrown out of office, they simply don't get another term. There is no tenure involved.
Woody
To keep from trying what? Suing legislators?ConstitutionCowboy said:
Anyone is welcome to try. But anyone who wants to try should understand what the law is and that he's not going to get anywhere.
Go ahead and try, why don't you? Hire a lawyer. See what he tells you. Let us know what kind of retainer he wants upfront. And can you cite a single case in which a legislator has been subject to civil liability for acts done within the sphere of legislative activity?
The NRA, the Second Amendment Foundation, the Calguns Foundation and other Second Amendment advocacy groups regularly bring suit to challenge gun control laws. There are about 70 such suits currently pending.
And RKBA interests have been represented by some very learned, experienced and able trial lawyers like Alan Gura, Stephen Halbrook, Don Kates, Don Kilmer, David Kopel, Robert Clements, et al. And yet we've not sued to try to subject a legislator to civil liability for acts done within the sphere of legislative activity. Do you think that there might be a reason? Do you think that it might have something to do with there not being a basis for a suit because of legislative immunity?
Welcome to real life.ConstitutionCowboy said:
ConstitutionCowboy
member
Frank said:
The Founding Fathers protected the representatives' and senators' speech in session in the Constitution, but not what has become court-protected immunity for their extra constitutional actions. This proves the Court is as out of step with the Constitution as those representatives and senators who overstep the bounds of the Constitution. One might say they are in league with each other. I find it appalling, but you are right. There is little chance of making it right when those who swore to uphold the Constitution don't.
Woody
Derry 1946
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Let us remember too that duly enacted laws are presumed valid and constitutional unless and until declared otherwise by a court of competent jurisdiction. To say that legislators should be sued for passing unconstitutional laws presumes that the laws in question have first been declared unconstitutional. That process generally requires years of hard-fought litigation.
One would then presumably have to prove that each of the legislators who voted for the law (and they would be the majority, for the law to have passed) knew or should have known that the law was unconstitutional ab initio. One would have to prove standing and actual harm and damages. These are for all practical purposes insurmountable challenges, rendered moot by the fact that there simply is no such cause of action at American jurisprudence.
The presumption of validity of laws springs from America's deeply-ingrained reverence for the expression of the will of the people, in the form of laws passed by the majority of legislators, elected by the majority of the voters. It should not be cast aside lightly.
One would then presumably have to prove that each of the legislators who voted for the law (and they would be the majority, for the law to have passed) knew or should have known that the law was unconstitutional ab initio. One would have to prove standing and actual harm and damages. These are for all practical purposes insurmountable challenges, rendered moot by the fact that there simply is no such cause of action at American jurisprudence.
The presumption of validity of laws springs from America's deeply-ingrained reverence for the expression of the will of the people, in the form of laws passed by the majority of legislators, elected by the majority of the voters. It should not be cast aside lightly.
ConstitutionCowboy said:
- Except, many of the Founding Fathers were lawyers. They understood the Common Law, and the Common Law is the foundation of our legal system.
And the doctrine of legislative immunity is firmly grounded in the Common Law as far back as the end of the 17th Century.
- In any case, the Founding Fathers also assigned to the federal courts the role of exercising the judicial power of the United States to decide cases arising under the Constitution.
- And it is beside the point, because the law is what it is.
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