TREATY CANNOT INFRINGE THE CONSTITUTION
“A treaty cannot change the Constitution or be held valid if it be in violation of that document.” – Foster & Elam v. Neilson, (1826) 27 U.S. (2 Pet) 253
“It would be manifestly contrary to the objectives of those who created the Constitution, let alone alien to our Constitutional history and tradition to construe Article VI (the Supremacy Clause) as permitting the United States to exercise power under an international agreement, without observing Constitutional prohibitions. In effect such construction would permit amendment of that document in a manner not sanctioned by Article V.” – Reid v. Covert, (1957), 354 U.S. 1
“The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive, or by the Executive and the Senate combined.” –Reid v. Covert, (supra)
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation as though it had never been passed.” – Norton v. Shelby County, 118 U.S. 425
SUPREME LAW OF THE LAND
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for a law which violates the Constitution to be valid. This is succinctly stated as follows:
"All laws which are repugnant to the Constitution are null and void." ---Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803) "When 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"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." ---Norton vs. Shelby County 118 US 425 p. 442
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 Am Jur 2nd, Sec 177 late 2d, Sec 256
Norton v. Shelby County
118 U.S. 425 (1886)Annotate this Case
U.S. Supreme Court Norton v. Shelby County, 118 U.S. 425 (1886)
Norton v. Shelby County
Argued March 24-25, 1886
Decided May 10, 1886
118 U.S. 425
Syllabus: This Court follows the decisions of the highest court of a state in construing the constitution and laws of the state unless they conflict with or impair the efficacy of some principle of the federal Constitution or of a federal statute or a rule of commercial or general law.
The decisions of state courts on questions relating to the existence of its subordinate tribunals and the eligibility and election or appointment of their officers and the passage of its laws are conclusive upon federal courts.
Following the decision of the highest court of the Tennessee in Pope v. Phifer, 3 Heiskell 691, and other cases, this Court holds that the Board of Commissioners of Shelby County, organized under the Act of March 9, 1867, had no lawful existence; that it was an unauthorized and illegal body; that its members were usurpers of the functions and powers of the justices of peace of the county; that their action in holding a county court was void, and that their acts in subscribing to the stock of the Mississippi River Railroad Company and issuing bonds in payment therefor were void.
While acts of a de facto incumbent of an office lawfully created by law and existing are often held to be binding from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law.
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.
The action of a minority of the justices of the peace of the County Court of Shelby County, Tennessee, prior to May 5, 1870, did not operate as a ratification by the county court of the previously invalid subscription of the county to stock in the Mississippi River Railroad Company, and on and after that day, on which the new Constitution of Tennessee took effect, no ratification could be made without previous assent of three-fourths of the voters of the county.
This suit was brought to enforce payment of twenty-nine bonds for $1,000 each issued by the Board of Commissioners of Shelby County in payment of a subscription by the county to stock in the Mississippi River Railroad Company. The form of the bond appears in the opinion of the Court, post, p. 118 U. S. 434.
On the 25th February, 1867, the county court of any county through which that railroad might run was authorized to subscribe to its capital stock. Laws of 1866-1867,page 131, c. 48, § 6,
[Footnote 1] which power was enlarged November 5, 1867, Private Acts 1867-8, 5.
[Footnote 2]On the 7th day of the following March, the legislature reorganized the City of Memphis, and enacted that the powers theretofore vested in the Quarterly Court should be vested in a Board of Commissioners created by that act. Acts of 1867-1868, c. 46,
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