David Ihde: Constitutionality at issue

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I would like to respond to the criticisms of Sheriff Garrett Wiggins with support and a potential criticism of my own. First, I’d like to address a point from Nita Naugle’s letter to the editor (“Vote for integrity,” March 24 Sunday Pilot & Today). There she states that the supremacy clause of Article VI of the U.S. Constitution decrees federal law to be the highest form of law in the U.S. In other words, federal law trumps state law. This is one of the biggest lies perpetrated on the American people in the history of the country.

Our founders would not have done that and, in fact, did just the opposite by instituting federalism (states’ rights) with the ability of the people to vote with their feet. That is why we are the United States of America, not the United State of America. The supremacy clause states that the Constitution reigns supreme, not the federal government, and within that, the 10th Amendment decrees that the states and the people reign supreme except where given specific enumerated powers (18) to the federal government. That is why the federal government had to pass a constitutional amendment making alcohol illegal and another one to re-legalize it. Otherwise, it was a state and local (dry towns) matter.

Did they do the same with marijuana and other drugs? No. So with that, is Sheriff Wiggins willing to ignore and not enforce federal drug laws, which are clearly just as unconstitutional as these new state gun laws? Where in the Constitution does it give authority for any level of government to determine what “we the people” can keep and bear? It doesn’t, and therefore I fully support Sheriff Wiggins (who took an oath of office to uphold and protect the Constitution as he did to enforce the laws passed by the Legislature) to not enforce unconstitutional gun laws. I just hope he has the same zeal for unconstitutional drug laws.

As to Paul Bonnifield’s letter (“Not a popularity contest,” March 22 Steamboat Today), all elected leaders take the same oath and therefore have the same power to determine what is or isn’t constitutional. The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law but is wholly void and ineffective for any purpose because unconstitutionality dates from the time of enactment and not merely from the date of the decision so branding it.

David Ihde

Steamboat Springs

Comments

Steve Lewis 1 year ago

David,

I enjoyed the read. And you are speaking to today's popular question: Who in Colorado has the right to determine Colorado Constitutionality of these new Colorado laws? Is it the Colorado County District and Supreme Courts, the Sheriffs, the elected leaders, or can each of us decide this individually?

"All elected leaders take the same oath and therefore have the same power to determine what is or isn’t constitutional."

Your "elected" qualifier mixes legislative and executive (Sheriff) branch leaders into a correct statement - each of these branches has no power to decide Constitutionality. If you disagree please help me understand your view of our Colorado Constitution's Article 3, which provides legislative, executive and judicial departments; each being given exclusive powers.

It seems obvious that each added entity or branch government allowed authority to judge Constitutionality only renders that Constitution weaker. I have a hard time believing you support that, even on the days your peers might hold that power.

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Doug Starkey 1 year ago

ski town USA, bike town USA, we need to add Constitutional Scholar Town USA given the number of experts in constitutional law around here.

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David Ihde 1 year ago

The constitution says 'We the People", not we the Constitutional Scholars. Justice Scalia in the Heller decision said the constitution can not be construed to be so textualized as to be only understood by elitists. It was designed to be understood by the average voting citizen. In other words, "Joe Six Pack"

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Bob Smith 1 year ago

just as its psychologist not physcologist

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Steve Lewis 1 year ago

Gee Bob, thanks for that. I actually did want to hear David's opinion on separation of powers. But of course, let's turn our attention to proper spelling.

I'm guilty of the same digressions at times, but is it entirely silly of me to think people might care to better understand each other? Let's NOT discuss our Constitution? So much easier to throw food or brag about the covert movement soon to be in charge.

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Bob Smith 1 year ago

"I feel so blessed that the government protects my wife and me from the dangers of gay marriage so we can safely go buy some assault weapons." -Will Ferrell

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Scott Wedel 1 year ago

Steve,

Personally, I do not see this as truly a separation of powers issue because all branches of government have reasons to concern themselves with what is constitutional. Sheriff Wiggins deciding what is unenforceable is more like ignoring standard accounting practices and running the dept by withdrawing the annual budget as a pile of cash and then allocating as needed. It is failing to follow normal processes for operating a Sheriff dept.

The right way for a Sheriff's dept to handle legal issues is by requesting legal advice from the County Attorney. Legal advice is how to administer without facing legal risks.

What Sheriff Wiggins did so wrong was for him to decide he was enough of a legal expert that he decided the law was unenforceable without seeking legal advice.

The public should be very concerned with any government official that is not a lawyer claims to have a lawyer's legal expertise. The public should be even more concerned with the Sheriff's legal theories are not mainstream legal theories, but based upon fringe legal theorists. And thus, likely to be proven false when the courts due rule on the specific issues.

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David Ihde 1 year ago

Article III text

"The powers of the government of this state are divided into three distinct departments,­­the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted."

Steve, in this state, all officials are elected as far as I know including Judges. They all take the same oath of office. I see nothing in the state constitution that says the Sheriff must enforce any law that comes from the legislative branch. As for constitutionality of the new gun laws, which part of infringed do they not get? The right is also part of the state constitution as well. To Bob Smith: why does one need a real assault weapon? Because governments murder more people than criminals and crazies do! That is why they put the amendment in there. Not because of the boogeyman in the back yard but because of the threat of the boogeyman (military) coming in the front door and occupying your home. Hence the 3rd amendment, which is enforced by the 2nd. George washington said that arms are the teeth of liberty. And he wanted the people to have them so they could go home and form militias.

"Maketa, whose county includes Colorado Springs, said he’ll join other sheriffs in filing a lawsuit challenging the new laws on the grounds that they violate the 2nd Amendment right to bear arms and the 14th Amendment that forbids states from restricting its residents’ rights. "

“The sheriffs are going to sue and I am going to represent them,” said David B. Kopel, an adjunct professor of advanced constitutional law at the University of Denver. “According to District of Columbia versus Heller, you cannot ban firearms which are used by law-abiding citizens for legal purposes.”

What the editor left out of my letter:

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2d, Sec 177, late 2d, Sec 256.

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona 384 US 436 p. 491.

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Steve Lewis 1 year ago

Scott, The Sheriff should enforce these laws, but I believe he has Colorado law on his side in choosing where his enforcement policies will focus. I agree he has some "probable cause" difficulties with parts of the magazine law. Not in the commercial market, but in private owner aspects.

My "separation of powers" complaint is not in regards to his public statements, but about the Sheriff policies posted at his website, where he will use his office to address "unconstitutional enforcements".

Also, many in the public are asking him to enforce the Constitution.

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Scott Wedel 1 year ago

Steve,

Of course the Sheriff has the ability to set law enforcement priorities. There is a big difference between setting a lower priority than saying a law cannot be enforced. Circumstances can greatly change the priorities of enforcing a law. The woman that bought the gun that killed Colorado's Head of Corrections is being charged with a difficult to enforce crime. Apparently, if Sheriff Wiggins is to be believed, if she had bought and transferred the gun in Routt County then his office would have refused to investigate because it is an "unenforceable" crime.

And, of course, his office should enforce the Constitution. But Mr Wiggins is not qualified to determine what is constitutional. He should be asking the County Attorney for written legal advice on what is constitutional.

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David Ihde 1 year ago

If he is not qualified to determine what is constitutional and what is not, then why is he required to take an oath of office to uphold the same?

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Scott Wedel 1 year ago

David,

So selective in your legal references. Only mention half of the Second Amendment and neglect the "well regulated" part. Mention Heller without mentioning that it specifically allows gun regulation.

Mr Kopel can go to court and argue that 15 rounds essentially bans guns. State government in passing and signing the bill are pretty confident that it is a reasonable regulation protecting the general public from errant gunfire and so on.

And Mr Kopel is only challenging the 15 round magazine limit. He doesn't say he will contest background checks for private party sales which Sheriff Wiggins also says is unenforceable without any apparent legal justification.

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David Ihde 1 year ago

From my previous post to you:

Scott, the militia is well regulated when called forth. This means the militia already exists! Who are they? Where are they? Where did they come from? Coupled with the fact that "States shall not keep ships of war or troops in times of peace without the consent of Congress unless actually invaded or in such imminent danger thereof" means that there is no such thing as state militias, but instead, militias of the several states. The militia is you and I! As for the last word in the amendment, that is a finite verb which is required for it to be a clause. The first part is not a clause but instead a "prefotory phrase". Nelson Lund, Constitutional Scholar at George Mason University who wrote the Amicus Brief adopted by the 5th Circuit court of Appeals in U.S. vs Emmerson.

So what are you talking about?

As for Heller, If my memory serves me, Heller did not talk about what types of Arms, but where they could be regulated. If it did, then they got it wrong! I will re-read the decision. Supreme Court gets it wrong more than you think on many matters. Mostly because they follow precedent and case law rather than the constitution itself. And where in the constitution does it allow for regulation of magazine size? The reason for the second amendment is to protect and enforce the 3rd! As well as any other opressive government. Keep in mind that governments murder more peole than criminals and crazies do!

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Steve Lewis 1 year ago

David, Thanks for the response. I am trying to understand your position.

The Sheriffs’ filing a lawsuit fits a protocol generally understood. Their lawsuit supports my position that these laws can only be annulled by the court, and cannot be dismissed by the Sheriffs.

Your position is you do not believe Sheriffs have any obligation to enforce any legislation. If that is the case why are they going to court? If the Sheriffs already claim no obligation to a law THEY decide is unconstitutional, what is changed when the court tells them whether the law is constitutional?

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Steve Lewis 1 year ago

I’m glad you added the excluded text. Truly interesting outlook in the first: 16 Am Jur 2d, Sec 177 late 2d, Sec 256.

“The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land.” I could only access repeats of the text. Whose writing am I reading? I came across this Jon Roland entry below the Am Jur text at constitution.org:

Quote:

Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it.

All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one's life.

Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.

End quote.

David, is that your position as well?

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David Ihde 1 year ago

Let me address the first paragraph here by this: when I lived in Northern Nevada of Elko in the 90's, the A.G. of Elko County decided that he would no longer prosecute DUI's emanating from road blocks or sobriety checkpoints if you will, saying they were an unconstitutional violation of the 4th amendment. Some tried to force him to do so because the Nevada and the U.S. Supreme Courts said they were ok. He said they were not! Those checkpoints dried up in that County. Mark Levin of talk radio fame and the founder of Landmark Legal Foundation that recently was successful in overturning Obama's recess appointments and who is a lawyer himself, said the Courts are not the final arbiter of the constitution as many believe. In fact they have kinda hyjacked that power and have corrupted the constitution with BS rulings like Wickard vs Filburn that essentially allows for the Feds to pretty much do whatever they want, which gives impetus to the first part of my letter to the editor! So it is my opinion, that Sheriff Wiggins can continue to not enforce that law despite what the Courts say which dovetails with your quote above. He did take the same oath of office afterall did he not? And if he is not qualified to determine such things as somone posted above, then why did he have to take the same oath?

"All Laws which are repugnant to the Constitution are null and void" Marbury vs Madison, 5 US (2 Cranch) 137, 174, 176, (1803)

We the people need to stop having the Pinheads of D.C. and the Eggheads of Academia define for us what the Constitution means. It must mean what it says it says or it could not possibly pass muster as the Supreme Law of the Land and ignorance is no excuse! Is that not what they tell us in court if we break the law? Lol. But we need to be vigilant for sure and start fighting back. And remember the constitution says "We the People", not We the Constitutional Scholars, Politicians, lawyers or Judges.

Your second part is very interesting indeed. I think it would go along way into getting us back on track as a nation. But not all jurisdictions employ a Grand Jury, although that is one of the key components of a Republic (3 vote system) vs a Democracy (1 vote system).

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David Ihde 1 year ago

I meant to say D.A. not A.G. Having said that, your thinking that "It seems obvious that each added entity or branch government allowed authority to judge Constitutionality only renders that Constitution weaker.", I would have to disagree with. I think it makes it stronger by raising awareness of the document and hopefully creating vigilance amongst the people. I think what makes it weaker is the practice of letting the Pin-Heads and Egg-heads define it for us. That is like having the Wolves guard the Henhouse!

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Steve Lewis 1 year ago

Tom, Well put on the value of food, and let me quickly agree. You do not malign me or anyone. It is appreciated more than you know. Now if I can just get you to agree with... just kiidding!

I'll get back to you. Cheers!

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Steve Lewis 1 year ago

David,

I was surprised how well my reading supports your case. 1803, Marbury vs. Madison is not the whole of the precedent nor the beginning of the concept, but is widely seen as the case where the precedent was established in our country. By deciding they did not have the constitutional power to do force the delivery of a commission by the executive branch, the Supreme Court established itself as a body for reviewing constitutional boundaries. They did not derive that power from the constitution itself.

That was over 200 years ago. Interesting to ponder how this 1803 case was crucial to our progress since. Or what would we look like today without it. I tend to think court review of constitutionality was inevitable, and stood in 1803 because it made sense. Most important, that was over 200 years ago. We have firmly established this precedent of courts reviewing constitutionality in our country. Is there precedent for a Sheriff's authority in judging constitutionality of laws?

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jerry carlton 1 year ago

Steve Not everyone would agree that this country has made "progress" over the last 200 years and certainly not over the last 60 years.

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Steve Lewis 1 year ago

Jerry, I made my point poorly. I was trying to imagine the road not traveled. Who beside the courts might judge the constitutionality of our laws and actions, and how that might work out. I keep convincing myself it could not be either of the other two govt. branches, out of conflict of interest. "The people" judging constitutionality for themselves? Jerry, as we contracted to do business, would we use yours? or mine.

Progress cuts both ways. In the context of this thread, a more centralized government has both limited and expanded our freedoms. States do the same. Colorado or Texas or..., State given rights can affect freedom either way, depending on your class, religion, income, etc. Consider our progress on the larger scale amongst other nations - would we be a superpower and leading economy if the federal government were subservient to the States, as has been suggested?

Ask those same questions within Colorado. How much uniqueness do we want each Sheriff or County to have? I want my county to go further than the State has with Oil and Gas regulations. I want my Sheriff enforcing laws just like the other Sheriffs do, not enforcing his own constitutional views. These should be allowed or not according to the Colorado Constitution and our statutes. Where we disagree, our courts will the final arbiter.

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David Ihde 1 year ago

My only question to you Steve is that if different branches of government can not determine what is or isn't constitutional, then why do they take the same oath. I say that is part of the checks and balances of our system. Which includes a governor vetoing legislation of the same instead of dumping into the courts to decide. That is part of the job. Same with our representatives. Again. the Elko D.A. refusing to prosecute DUI's from Checkpoints is a case in point. He defied the courts and the legislature. And just for info, DUI arrests actually went up!

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Steve Lewis 1 year ago

David, I do not understand your logic of similar oaths granting similar powers. If that gives Sheriff Wiggins power to veto Colorado laws within Routt County, then Senator Baumgardener can veto laws in his district too. We can veto the Gallagher Amendment as unconstitutional in Routt County. Where does it end?

As I said before: Each added entity or branch of government allowed authority to judge Constitutionality only renders that Constitution weaker. You think the additions make it stronger by raising awareness of the document and creating vigilance amongst the people. David, if giving an inch on gun control is the slippery slope leading to further gun control, what kind of slope is it when Sheriffs assume judicial abilities? "Trust us we only want to keep those large ammo magazines and no background checks?" I don't think you have thought this through very far. But what a fun experiment for our tourism economy.

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