Not-Laws

"Not-Law" is our shorthand for unconstitutional federal laws, regulations, Executive Orders — any enactment of FedGov that is not authorized by the Constitution — the source of all FedGov power.

Unconstitutional laws are not laws at all. They are "Not-Laws."

The reasoning here is simple.

"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; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it." — 16 American Jurisprudence, 2nd edition, Sec. 177; late 2nd edition, Sec. 256;

Unconstitutional laws are Not Laws at all! But don't take our word for it. In Marbury v. Madison, the Supreme Court itself declared that "an act of the legislature, repugnant to the constitution, is void."

In theory, an unconstitutional law or unconstitutional regulation or Executive Order is not a law at all. In practice, one of these "Not-Laws" is as good as a ratified Constitutional amendment! Whoops, that can't be right!

In theory, you can't "break" a Not-Law. In practice, you'll go to jail if you do. In theory, unconstitutional laws are "void." In practice, a void law is enforced unless and until someone successfully challenges it through the federal courts — a process made extremely difficult and unlikely by FedGov's Judiciary. Even if successful, it can take decades! Most Constitutional challenges never even reach the Supreme Court, having been stopped in the lower, federal courts. Of those that manage to get to the Supreme Court, only some are actually given their day in court and heard.

What is needed is a way to move from our current legal system into one where theory and practice can meet, where Not-Laws can be identified and negated without having to get arrested and take a challenge case all the way to the Supreme Court. What is needed is the Consent Of the Governed Act — COGA.

COGA treats suspected unconstitutional laws as if they were unratified Constitutional amendments. No state is bound to respect unratified Constitutional amendments; no state should permit enforcement of suspected unconstitutional laws.

Let's consider three different ways of enacting a FedGov Not-Law:

Case One:: The Congress proposes a constitutional amendment to allow any federal official with a badge to enter into any residence, business or other private property at any time, to look for evidence of a crime, including terrorism. The amendment is submitted to the states for ratification.
Case Two:: The Congress passes a bill to allow any federal official with a badge to enter into any residence, business or other private property at any time, to look for evidence of a crime, including terrorism. The President signs it into law.
Case Three:: The president issues an executive order allowing any federal official with a badge to enter into any residence, business or other private property at any time, to look for evidence of a crime, including terrorism.

Compare:

Proposed Amendment	Legislation	Executive Order
Seeks to grant a power not in the Constitution	Assumes a power not granted in the Constitution	Assumes a power not granted in the Constitution
States debate whether or not to grant this new power	Goes into effect immediately.	Goes into effect immediately.
Citizens have a chance to weigh in via their state legislators.	Citizens maybe had a chance to weigh in via their Congressional delegations. Maybe not.	Citizens have no input. President acts unilaterally.
Citizens need not permit this unconstitutional intrusion unless ratified.	Citizens defying this unconstitutional intrusion will be arrested or worse.	Citizens defying this unconstitutional intrusion will be arrested or worse.
Would likely be rejected by the states and not become law.	Would continue to be enforced until overturned by the federal courts, if ever.	Would continue to be enforced until overturned by the federal courts, if ever.

Granted, the example above would be an egregious power grab, even by FedGov standards, and would doubtless attract much press coverage leading to a quick ruling of unconstitutionality. Unfortunately, less egregious usurpations of power take longer to be appealed and overturned (if ever) while minor violations never find a champion at all or attempts to overturn them fail due to the bias of the federal courts toward finding FedGov actions constitutional by default.

The point is, the current paradigm errs in assuming that every federal enactment, law, regulation and action is constitutional until someone proves, in FedGov's own courts, that it is not. Better, we believe, to err on the side of protecting the Constitution and the rights of citizens. Better to not enforce laws of suspect constitutionality. To do otherwise is an affront to the Constitution. "First, Do No Harm" seems like a good policy for government, doesn't it?

It can take many years, decades sometimes, for a constitutional challenge to be brought and wend its way through the courts. During this time, unconstitutional laws continue to be enforced. That's wrong and violates citizens' rights. COGA would allow the people — the bosses of FedGov — to effect a timely remedy when FedGov oversteps its Constitutional limits.

Let us not forget too that judicial proceedings are adversarial in nature. It is not fair to permit one adversary, FedGov, to decide the outcome of the contest! COGA puts the power in the hands of the states and the people where it belongs.

COGA changes the way we decide if a law is constitutional or not.

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