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U.S. Constitution Title: The New Nuremberg Defense The New Nuremberg Defense
Liberty Legal Foundation ^ | 27 April 2012 | Van Iron
A large part of Liberty Legal Foundation’s mission has become, by necessity, educating citizens and politicians alike about the foundational tenets of our Constitutional republic. America’s public school system has apparently been failing us for so long that we now have Congressmen and State legislators that don’t understand the basics about our form of government. This week I witnessed yet more proof of this fact. This week the Tennessee legislature unanimously passed a bill that seemed to be blatantly unconstitutional. When constituents e-mailed their state senators asking why they voted for the bill, the responses were very revealing. One Senator responded by saying “Legislation is only unconstitutional when the high court deems it so.” Another Senator replied to the allegation that he voted for an unconstitutional bill by saying, “Then I am sure it will be struck down in court.” Both of these statements reflect a shocking disregard for the Constitution, for the Senators’ oaths of office, and for the rights of their constituents. Naturally, we could not let such statements go unanswered. Read our response HERE. Unfortunately, my experience tells me that these statements reflect the attitude of most members of Congress and of the 50 state legislatures. This attitude, however, is not entirely the fault of our so-called “representatives.” Since the War Between the States, Americans have been taught that the judicial branch of government is the only branch that can determine whether or not a particular law is constitutional. This is simply not true. Every member of all three branches of government has an obligation to follow the Constitution. The judicial branch may have the right make final decisions when a dispute arises over real-world application of the Constitution, but this does not mean that an act of government can’t possibly violate the Constitution until a court says so. It also does not mean that members of the executive and legislative branch have no obligation to consider the constitutionality of their actions before they act. Both of these conclusions are illogical and demonstrably false. Yet they represent the attitude of most legislators from Nancy Pelosi to your local representatives, and most members of the executive branch from the President down to your local Sheriff. Last fall U.S. Supreme Court Justice Antonin Scalia, testifying before the Congressional Judiciary committee, confirmed that all Congressmen have a duty to follow the Constitution BEFORE passing a bill. Scalia explained that the Court gives deference to Congress because the Court assumes that individual Congressmen considered the Constitution before passing any legislation. Just seven years ago the Tennessee Attorney General wrote an official and published opinion telling the Tennessee Legislature that “A legislator violates the oath of office…by voting for a bill or resolution that ‘appears’ to him or her to be ‘injurious to the people,’ or by consenting to ‘any act or thing…that shall have a tendency to abridge their rights and privileges’ under the Tennessee Constitution.” Tenn.Op.Atty.Gen.No. 05-106, 2005 WL 1839886. Apparently none of Tennessee’s Senators care whether they’re violating their oath of office. The current attitude of most legislators also runs contrary to basic logic. If it were true that legislators had no duty to consider the constitutionality of their acts, there would be no need for them to take an oath to uphold the Constitution. If considering the Constitution was the sole responsibility of the courts, only the judicial branch would be required to take an oath to uphold the Constitution. Assuming logic is too much to ask of our so-called leaders, lets apply common sense to their current attitude: If no law was unconstitutional until a court ruled it unconstitutional, then Congress could pass a law calling for the immediate killing of all Christians (for example). Apparently Tennessee’s Senators believe that such a law would be immediately enforceable, at least until the courts could sort it out. More to the point, these Senators apparently believe that they would have no duty to oppose such a law, at least not on constitutional grounds. If you think my law-to-kill-all-Christians example is too outrageous, here’s one ripped from today’s headlines: a President could sign an executive order confiscating most private property in America, and that law should be enforced by your local Police and National Guard unit, at least until the courts rule it unconstitutional. Until recently America’s military and most law enforcement agencies taught their members the difference between a lawful and an unlawful order. They taught them that unlawful orders include any order that clearly violates the Constitution. They taught them that it is illegal for any of them to follow an unlawful orders. Our military and police used to be taught these things so that America could avoid the tragedies of Nazi Germany. As the world collectively decided at the Nuremberg trials, claiming that “I was just following orders” is not a defense we will recognize when one violates the clear and undeniable rights of other human beings. Apparently the members of America’s legislative and executive branches have now convinced themselves that a variation of the Nuremberg defense will absolve them of any responsibility when they violate the clear rights of the people the were elected to represent. They’re now telling themselves, and us, that anything they do is OK, at least until a court says otherwise. The false belief that only the judicial branch has a responsibility to consider the Constitution comes from a long-standing misunderstanding about the separation of powers between the three branches of our government. Early in our history the U.S. Supreme Court correctly pointed out that it has a duty to interpret the Constitution and apply its interpretations to the facts of cases brought before the Court. However, that is all it does. This does not mean that the judicial branch is the only branch that can interpret and apply the Constitution. It also does not mean that either of the other branches are required to agree with the Court. The other branches could, if they choose to do so, continue to operate as if the law was constitutional. The reason that this almost never happens is because the functional operations of the other two branches almost always require the willing cooperation of the judicial branch. When the Supreme Court rules that a law violates the Constitution it is simply telling the other two branches that the judicial branch will not recognize that law. Since most laws cannot be enforced without the help of the judicial branch, and because people harmed by unconstitutional laws can get court orders prohibiting government agents from enforcing the unconstitutional law, the effect of the judicial branch ruling a law unconstitutional is to tie the hands of the other two branches as it relates to that law. This may seem like splitting hairs, but it is a VERY important point that has been forgotten by most people running all three branches. This concept is at the core of the separation of powers. It is a recognition of where authority begins, to whom it flows, and how much authority is given to each branch. Many of the problems we see in our government today can be directly linked to the lost understanding of our separate and co-equal branches of government. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: Y'ALL, GrandIsland (#0) " ---- Until recently America’s military and most law enforcement agencies taught their members the difference between a lawful and an unlawful order. They taught them that unlawful orders include any order that clearly violates the Constitution. They taught them that it is illegal for any of them to follow an unlawful orders. Our military and police used to be taught these things so that America could avoid the tragedies of Nazi Germany. ---- " GrandIsland, -- is this true? Were you taught the above?
#2. To: tpaine (#1) I've never heard of any police training where you are taught to decide or rule the constitutionality of a passed legislative law. In my 20 years, I saw several examples of laws that I felt were "grey area" unconstitutional, we're all ruled unconstitutional before I retired. When I started in 94, officers were arresting for cussing in public... discon. Not when I retired. After it was ruled, the department was given a department wide order to cease When I started in 94, officers were arresting for "aggravated harassment" for phone calls meant to annoy or harass as part of the big stalking push after the OJ trial... it was later ruled unconstitutional, unless the phone call, email, letter or any type of communication (including Facebook) contained a THREAT. CEASED by the time I retired. You should be happy to know, the NYS Sheriff's association told CUCK FUOMO that they weren't going to enforce the NYS UnSafeAct... until it was ruled constitutional... and they didn't. The highest NYS courts reviewed the bullshit law and gutted parts of it (like the 7 round mag bullshit)... I still didn't agree with that law... I never arrested anyone for it and retired and moved from nazi occupied NYS. The oath of a cop is a THREE WAY PROMISE... all equal in importance. Enforcing the constitution, the laws of the state and the constitution of that state. No part out trumps the other two. Officers are tasked with the responsibility to do all three and balance all three. Scalia is correct. Law makers should look at laws with a constitutional eye before voting on them. It's your politicians that could give a shit and sold out their ONLY OATH of obeying the USC, for votes. You just like to fault LE for their deeds. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #3. To: tpaine (#0) The New Nuremberg Defense The correct name of the author is Van Irion, co-founder of The Liberty Legal Foundation which, with Van Irion as its attorney, brought a class action lawsuit against the National Democratic Party, the DNC, and Debbie Wasserman Schultz. The Court dismissed the suit and ordered sanctions against the plaintiffs. One of the memorable and humorous aspects of this birther lawsuit was that it was brought against the non-existent National Democratic Party of the USA, Inc. Later, the NDC and Debbie Wasserman Schultz were added. There is nothing quite as persuasive as citing a court-sanctioned birther lawyer as authority. The 2012 article may be copped from FR (http://www.freerepublic.com/focus/f-news/2877121/posts where the misspelling of the author's name also appears. The original article was at what now appears as a dead link. http://libertylegalfoundation.org/1898/the-new-nuremberg-defense/ [dead link] - - - - - Van Irion, Liberty Legal Foundation, Doc 11, 2nd AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Van Irion - - - - - https://www.documentcloud.org/documents/420942-andersonorder.html https://s3.amazonaws.com/s3.documentcloud.org/documents/420942/andersonorder.pdf Van Irion, Liberty Legal Foundation, Doc 31, ORDER GRANTING DEFENDANTS' MOTION TO DISMISS - - - - - https://www.documentcloud.org/documents/420922-sanctions-order.html https://s3.amazonaws.com/s3.documentcloud.org/documents/420922/sanctions-order.pdf Van Irion, Liberty Legal Foundation, ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR SANCTIONS "Among other things, Defendants contend that Plaintiff should have known that no entiry known as the National Democratic Party of the USA, Inc. is associated with any of the Defendants in this case." - - - - -
Birthers sanctioned by federal judge for ‘frivolous lawsuit,’ claims Tennessee Democratic Party
#4. To: GrandIsland (#2) " ---- Until recently America’s military and most law enforcement agencies taught their members the difference between a lawful and an unlawful order. They taught them that unlawful orders include any order that clearly violates the Constitution. They taught them that it is illegal for any of them to follow an unlawful orders. Our military and police used to be taught these things so that America could avoid the tragedies of Nazi Germany. ---- "
GrandIsland, -- is this true? Were you taught the above?
I've never heard of any police training where you are taught to decide or rule the constitutionality of a passed legislative law. Thanks. -- This lack of training on what construes a lawful order explains a lot of your confusion.
The oath of a cop is a THREE WAY PROMISE... all equal in importance. Enforcing the constitution, the laws of the state and the constitution of that state. No part out trumps the other two. Officers are tasked with the responsibility to do all three and balance all three. You've been misinformed. The US Constitution is our supreme law of the land, and it trumps State laws.
Scalia is correct. Law makers should look at laws with a constitutional eye before voting on them. It's your politicians that could give a shit and sold out their ONLY OATH of obeying the USC, for votes. We agree..
You just like to fault LE for their deeds. I don't like it, but American LE deeds and attitudes have far too many faults. Training in constitutional law is sadly lacking.
#5. To: tpaine (#4) Thanks. -- This lack of training on what construes a lawful order explains a lot of your confusion. Since you are the most knowledgable person you know, maybe you can make it your life's mission to put a lesson plan together and train LE across the country. lol Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #6. To: GrandIsland (#5) ---- Since you are the most knowledgable person you know, ----- Your amusing but pitiful attempts to be snide are much appreciated.
#7. To: tpaine (#4) (Edited) The oath of a cop is a THREE WAY PROMISE... all equal in importance. Enforcing the constitution, the laws of the state and the constitution of that state. No part out trumps the other two. Officers are tasked with the responsibility to do all three and balance all three. From the National Sheriff's Associstion... "The office of the elected sheriff is a time honored tradition that our nation’s sheriffs diligently protect as the Office of Sheriff represents direct democracy through the right of our citizens to choose their local chief law enforcement officer. Our nation’s sheriffs protect their citizens’ individual rights through the elected Office of Sheriff. However, individual sheriffs should not fall into the mythology that any “oath of office” taken by the man or woman who fills the position of sheriff conveys upon that individual any extraordinary powers or duties that are not otherwise set out under the constitutions and laws of the respective states. Furthermore, a sheriff should always perform his or her duties in accordance with the Constitution of the United States as interpreted by the United States Supreme Court. " This will be the last time I try and educate you on this subject. It's like trying to reason with a child. Officers aren't responsible for GREY AREA interpretation. The USSC is. Officers honor their oath by enforcing laws that are deemed constitutional through case laws.... NOT BY YOUR INTERPRETATION or the officers interpretation. If an officer makes an arrest on a newly legislated law, and, after arrest, via appeals, the highest courts deem the law unconstitutional, then the conviction is reversed and THE LAW IS REPEALED. Period. One last time, child. You live in the freest country on the planet. Contrary to Deckards fear monger police state bullshit, YOU ARE FREE TO BREAK ANY LAW YOU DONT LIKE. Do so at YOUR risk. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #8. To: tpaine (#6) Your amusing but pitiful attempts to be snide are much appreciated. Someday you'll put your big boy pants on and decide how you'll act all by yourself and not require others to agree with your opinions. Good luck. lol Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #9. To: GrandIsland (#8) The oath of a cop is a THREE WAY PROMISE... all equal in importance. Enforcing the constitution, the laws of the state and the constitution of that state. No part out trumps the other two. Officers are tasked with the responsibility to do all three and balance all three.
You've been misinformed. The US Constitution is our supreme law of the land, and it trumps State laws.
From the National Sheriff's Associstion... --- "The office of the elected sheriff is a time honored tradition that our nation’s sheriffs diligently protect as the Office of Sheriff represents direct democracy through the right of our citizens to choose their local chief law enforcement officer. Our nation’s sheriffs protect their citizens’ individual rights through the elected Office of Sheriff. However, individual sheriffs should not fall into the mythology that any “oath of office” taken by the man or woman who fills the position of sheriff conveys upon that individual any extraordinary powers or duties that are not otherwise set out under the constitutions and laws of the respective states. Furthermore, a sheriff should always perform his or her duties in accordance with the Constitution of the United States as interpreted by the United States Supreme Court. " " -- as interpreted by the USSC." --- Is an opinion of the author that has NO basis in the actual words of the Constitution.
This will be the last time I try and educate you on this subject. It's like trying to reason with a child. There you go again with the personal insults. Pitiful.
Officers aren't responsible for GREY AREA interpretation. The USSC is. Wrong. Officers are responsible for how they interpret the acts of others, and of their own acts. There is no 'following orders' defense.
Officers honor their oath by enforcing laws that are deemed constitutional through case laws.... NOT BY YOUR INTERPRETATION or the officers interpretation. 'Deemed constitutional' is the point in question. If you obey an unlawful order, it's on YOU.
If an officer makes an arrest on a newly legislated law, and, after arrest, via appeals, the highest courts deem the law unconstitutional, then the conviction is reversed and THE LAW IS REPEALED. Period. --- One last time, child. Your effort to appear to be the adult here is ludicrous. But dream on.
You live in the freest country on the planet. Contrary to Deckards fear monger police state bullshit, YOU ARE FREE TO BREAK ANY LAW YOU DONT LIKE. --- Do so at YOUR risk. Thank you, Capt Obvious.
Someday you'll put your big boy pants on and decide how you'll act all by yourself and not require others to agree with your opinions.
I've been a big boy since '55, when I joined the army, and took the oath. -- And was informed that it was my responsibility to obey only lawful orders. You still need to learn that lesson.
#10. To: tpaine (#9) I've been a big boy since '55, when I joined the army, and took the oath. -- And was informed that it was my responsibility to obey only lawful orders. Of course. If your commanding officer told you to kill the weak link in your platoon... that is an unlawful order and you don't have to follow it. Only a child would equate that with not having to comply with drug laws. But in free AMERICA, you are free to act and think anyway your childish mind tells you too. Just remember, in a free society, you have consequences for your actions. Make sure you pick the right course... at your own risk. Good luck. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #11. To: tpaine (#1) (Edited) The military still teaches this. They also learn the LOAC. Officers and NCOs in combat must make quick decisions and train using vignettes to present situations where unlawful orders are introduced. "In the beginning God created the heaven and the earth." (Genesis 1:1) #12. To: redleghunter, Y'ALL, GrandIsland (#11) The military still teaches this. Try to explain the principle to GrandIsland. -- For some odd reason he seems to think that there is a huge difference between pleading; -- "I was only following orders" ; -- and pleading " I was only enforcing constitutionally questionable laws"..
#13. To: tpaine (#12) I was only following orders" ; -- and pleading " I was only enforcing constitutionally questionable laws".. The I was only following orders defense when breaking LOAC will get you hard time at Leavenworth. Or execution. Where some services have problems is with ROE which restricts basic LOAC self defense measures. These are truly rare. Most issues with ROE stems from subordinate commanders not knowing them. When life and limb are involved the LOAC trumps ROE. As you know the oath a military officer takes is a defense of the Constitution.
I, _____, having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.) "In the beginning God created the heaven and the earth." (Genesis 1:1) #14. To: tpaine (#12) So, when your commanding officer instructs you to stop singing in the shower... are you gonna tell him to F' off... and sing your 1st amendment rights even louder? Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #15. To: tpaine (#12) I have no problem saying NO to an unlawful order. Problem with your spin is, I won't let your warped ideology judge what's unlawful or unconstitutional. What part of that don't you understand? Your judgement is tainted, bias and unreliable. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #16. To: GrandIsland, responds with personal invective, again. (#15) Try to explain the principle to GrandIsland. -- For some odd reason he seems to think that there is a huge difference between pleading; -- "I was only following orders" ; -- and pleading, -- "I was only enforcing constitutionally questionable laws"..
I have no problem saying NO to an unlawful order. But you DO have a problem admitting that you are bound by oath to enforce only constitutionally valid laws.
Problem with your spin is, I won't let your warped ideology judge what's unlawful or unconstitutional. What part of that don't you understand? -- Your judgement is tainted, bias and unreliable. Officers are bound to support an defend our Constitution. -- Your imaginative ideas about my judgement are not the issue here.
#17. To: GrandIsland (#8) "The US Constitution is our supreme law of the land, and it trumps State laws." But not state marijuana laws which are flagrantly unconstitutional, yet state legislators pass them anyways. You see, GrandIsland, it all depends on the state law. If it's one they like, then it can never be unconstitutional. This is known as the Rule of Man, not the Rule of Law.
#18. To: misterwhite, counseling GrandIsland on the rule of law? (#17) The US Constitution is our supreme law of the land, and it trumps State laws.
But not state marijuana laws which are flagrantly unconstitutional, yet state legislators pass them anyways. Odd statement, whitey, considering that federal marijuana 'Laws' are based on questionable constitutional grounds, which many States refuse to obey.
You see, GrandIsland, it all depends on the state law. If it's one they like, then it can never be unconstitutional. This is known as the Rule of Man, not the Rule of Law. Another odd idea, considering that whitey has long been an advocate of majority rule, wherein 'society' can ignore constitutional law.
#19. To: tpaine (#16) Your imaginative ideas about my judgement are not the issue here. They are when the topic is your vast constitutional law knowledge. You have your opinions on grey areas, I have mine. Why would I enforce laws using your OPINIONS? Are you the greatest constitutional scholar you know? Let me know when you're appointed USSC Justice by our next president, Rand Paul. Then I'll retract everything I've ever said about you and claim I'm not worthy to be on the same thread as you. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #20. To: GrandIsland (#19) "Are you the greatest constitutional scholar you know?" He is. Just ask him. But back him into a corner with cites, quotes, and Supreme Court cases and what's his "scholarly" rebuttal? "They're all wrong". As proof, look at post #18. Which is why I refuse to respomnd to any of his posts. A hugh waste of time.
#21. To: GrandIsland, misterwhite, Y'ALL (#19) Officers are bound to support an defend our Constitution. -- Your imaginative ideas about my judgement are not the issue here.
They are when the topic is your vast constitutional law knowledge. You have your opinions on grey areas, I have mine. Why would I enforce laws using your OPINIONS?
I'm not asking you to use my opinions, -- I'm asking you why you enforced obviously unconstitutional 'laws' prohibiting guns, drugs, and non-violent behaviours. --- Enforcing such laws violates an officers constitutional oath.
To: GrandIsland (#19) ---- "Are you the greatest constitutional scholar you know?" --- He is. Just ask him. ----- But back him into a corner with cites, quotes, and Supreme Court cases and what's his "scholarly" rebuttal? "They're all wrong". --- As proof, look at post #18. Which is why I refuse to respomnd to any of his posts. A hugh waste of time. By all means, look at post #18. -- Nothing in it proves whitey' s contention about 'cornering' me. -- Misterwhite advocates a majority rule form of govt in the USA. -- He hates our republican form of government, under our Constitution, -- and proves it virtually every day with his posts here at LF.
#22. To: tpaine (#21) obviously unconstitutional 'laws' And Mike Browns hands were "obviously" up. You are as close minded as a Micheal Brown supporter... with the same level of LE disdain. You drug lovers have been as repressed as the inner city animal. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #23. To: GrandIsland (#22) Why would I enforce laws using your OPINIONS?
I'm not asking you to use my opinions, -- I'm asking you why you enforced obviously unconstitutional 'laws' prohibiting guns, drugs, and non-violent behaviours. --- Enforcing such laws violates an officers constitutional oath.
And Mike Browns hands were "obviously" up. --- You are as close minded as a Micheal Brown supporter... with the same level of LE disdain. You drug lovers have been as repressed as the inner city animal. Is it the booze talking again? Get some rest, (plus a lesson on how to debate) and try to do better tomorrow..
#24. To: tpaine (#23) Is it the booze talking again When you get your anarchist ass kicked, it's always the drunk defense. lol Slap yourself, silly. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy #25. To: GrandIsland (#24) Is it the booze talking again? Get some rest, (plus a lesson on how to debate) and try to do better tomorrow..
When you get your anarchist ass kicked, it's always the drunk defense. lol -- - Slap yourself, silly. Dream on that you're somehow kicking ass. -- And the reason I mentioned booze, -- Is that about this time, every day, you get a bit belligerent, as well as becoming even more inept & inane than usual.
#26. To: tpaine (#25) about this time, every day, you get a bit belligerent I just grow tired of your childishness. lol Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy Top • Page Up • Full Thread • Page Down • Bottom/Latest |
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