Nobody likes to be called a dummy by a dummy.

Legal question

Can a lower level law override a higher one?

Specifically: can the Patriot Act override our Constitution?
Permalink BBAG 
January 14th, 2006
I don't think it's a simple either/or situation.

Basically, the Constitution guarantees certain rights. The Supreme Court decides when a passed law has violated the Constitution, declares it unconstitutional, and I believe that voids the law.
Permalink AllanL5 
January 14th, 2006
If some aspects of the Patriot Act are found to be unconstitutional, then they will be voided. But first, a court case must be brought to the Supreme Court claiming that.
Permalink AllanL5 
January 14th, 2006
I know jack about US law, but typically, constitutional/ foundational law supercedes everything else. Thats sort of the point of having them. They also typically require complicated procedures if they are to be changed.

Democracy sort of depends upon it. Otherwize a party could attain power under false pretenses and then smack bang change the law to make themselves rulers for life.
Permalink Eric Debois 
January 14th, 2006
Constitutional law doesn't prevale everywhere.

In the Netherlands judges are not allowed to test a law against the constitution. That is for the parliament to do. I think we are an exception in this regard.
Permalink Erik Springelkamp 
January 14th, 2006
Many of us believe the Patriot Act overrides Amandment IV.

Clearly there is a conflict here:
The president must protect the security of the nation AND "take care that the laws be faithfully executed."

Should not the president initiate a Supreme Court decision in this case?
Permalink BBAG 
January 14th, 2006
I believe that only an amendment to the Constitution has the effect of overriding the original document. All laws passed by Congress are subject to interpretation/rejection by the Courts.

Of course amending the Constitution is very difficult, as it should be. But parts of the Patriot Act will in fact be challenged over time--and hopefully overturned.
Permalink Misanthrope 
January 14th, 2006
This is interesting. According to Paul Reynolds ( http://news.bbc.co.uk/1/hi/world/americas/4626893.stm ) the US constitution doesn't actually allow the Supreme Court to strike down unconstitutional laws. That appears to be a power the Supreme Court established for itself in the early years. What is more, if a Supreme Court ruling happened to be ignored, who would enforce it? President Andrew Jackson is quoted as saying, "Mr Justice Marshall has made his ruling. Now let him enforce," when refusing to obey a Supreme Court ruling in 1831.

That was a long time ago of course, but today we seem very close to the President being able to declare that his actions are legal because he is the President, and that doesn't seem far different.
Permalink Ian Boys 
January 14th, 2006
The constitution supercedes all else. If a law, like the Patriot Act is suspected of violating some principle laid out in the constitution, it can be taken before the federal court system, where they can strike down the law as unconsitutional. The only way it can then be law is if its rewritten in a way to please the courts or an amendement to the consitution is ratified.

That said, the fourth amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I'm not sure what clause of the Patriot Act you think violates that. The key words are "unreasonable" and "upon probably cause". All the wire tapping, library record searching etc, require a warrant and probably cause to obtain. The Patriot Act repeals older protections in privacy etc that had been established since the constitution.
Permalink Phil 
January 14th, 2006
"Can a lower level law override a higher one?"

State laws supercede federal ones which the federal government has no constitutional authority to pass.

Heh. As if it matters.
Permalink Art Wilkins 
January 15th, 2006
"The constitution supercedes all else."

Incorrect. Treaties override the constitution. Treaties such as GATT.
Permalink Art Wilkins 
January 15th, 2006
Constitutions provide the foundation upon which laws are formulated and can be upheld. Many laws reduce, restrict or constrain the rights given in a particular constitution.
Permalink Simon Lucy 
January 15th, 2006
Hey man, you're either with the President or against him. And if you're against him, then you're with the terrorists.
Permalink Bubba 
January 15th, 2006

This topic was orginally posted to the off-topic forum of the
Joel on Software discussion board.

Other topics: January, 2006 Other topics: January, 2006 Recent topics Recent topics