Unconstitutional Acts: What's Really Banned?

Something that goes against the constitution can be defined as something that is unconstitutional. An unconstitutional act can be described as something that is unauthorized by or inconsistent with the constitution. An example of an unconstitutional act is the violation of the First Amendment. In the past two centuries, there have been many instances of this, carried out by some of the greatest national leaders, particularly in times of crisis. There have also been instances of other amendments being violated, such as the unconstitutional rules of the FCC, such as the Fairness Doctrine or the EEO rules.

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Violation of the First Amendment

The First Amendment to the United States Constitution primarily protects the right to free speech, free expression, free exercise of religion, freedom of the press, and the right to assemble and petition the government. However, despite these protections, violations of the First Amendment have occurred frequently throughout history.

One example of a First Amendment violation occurred when a school district attempted to censor students who wore black armbands to school in protest of the Vietnam War. The students were suspended for refusing to remove the armbands, but they sued the school district for violating their First Amendment rights. The Supreme Court ultimately sided with the students, protecting their right to passive, symbolic speech that does not cause disruption.

In another case, the Supreme Court ruled that South Carolina had violated students' First Amendment rights by infringing upon their freedom of speech, assembly, and right to petition for a redress of grievances. Additionally, in a Connecticut case, the Supreme Court unanimously ruled that a state statute violated the First Amendment by requiring a permit for soliciting religious purposes, as it gave the state the power to determine religious truth.

These cases demonstrate how violations of the First Amendment can occur at various levels of government, from school districts to state statutes. It is important to recognize that the First Amendment applies only to governmental action, and seeking legal remedies for violations can be complex. Nonetheless, standing up for First Amendment rights is crucial to protecting the freedoms guaranteed by the United States Constitution.

Unconstitutional rules by agencies

One notable example of an agency overstepping its bounds is the Federal Communications Commission (FCC), whose unconstitutional rules, such as the Fairness Doctrine and the EEO rules, were not mandated by federal law but were rather discretionary. These rules infringed on individuals' constitutional rights, and the victims suffered in silence, fearing governmental retribution for speaking up.

The Supreme Court's recent decision to overturn the "Chevron deference" standard further highlights the issue of unconstitutional agency rules. This decision removes the requirement for federal courts to defer to reasonable agency decisions when federal law is unclear, shifting policy decisions from agency experts to federal judges. While this change may reduce agency interference in certain areas, it could also impede much-needed reforms, particularly in complex areas like healthcare.

The "Unconstitutionality Index" highlights the disparity between the number of rules issued by agencies and laws passed by Congress, with 46 agency rules for every law in 2023. This index underscores the growing federal interference in citizens' lives and the need for a reevaluation of the law-making process.

To address these concerns, some argue that Congress should reclaim its lawmaking power and that both the legislature and agencies should reduce their interference. Additionally, courts can play a role by reviewing and overturning unconstitutional agency regulations, as they often do with laws and regulations that violate the First Amendment. However, those who violate the Constitution, including public servants, rarely face accountability, which perpetuates a cycle of impunity.

Public servants' immunity

Public servants are generally immune from liability when performing their public functions. This immunity often turns into impunity, allowing them to violate the constitution without facing consequences. For example, the First Amendment has been violated numerous times, yet those responsible are rarely held accountable. This is partly because unconstitutional laws and regulations are often attributed to anonymous lawmakers and bureaucrats, obscuring the individuals responsible for their creation and defence.

In the United States, the Federal Employees Liability Reform and Tort Compensation Act of 1988 (FELRTCA) extended absolute immunity for common-law torts to all federal employees, regardless of whether their conduct was discretionary. This means that federal employees cannot be sued for torts committed while acting within the scope of their office or employment. However, this immunity does not apply to all suits against federal employees.

In India, the Constitution provides legal immunity and protection for administrative officials and civil servants. Articles 309, 310, and 311 of the Indian Constitution outline provisions for the appointment, dismissal, and removal of civil servants. These articles protect civil servants from arbitrary removal or dismissal and place restrictions on the actions of the government. For instance, Article 311 requires a necessary procedure to be implemented before removing or dismissing a civil servant or reducing their rank.

While public servants are generally immune from liability for their official acts, this immunity is not absolute. In some cases, public servants can be held accountable for their actions, especially when their conduct falls outside the scope of their official duties or involves gross negligence or intentional wrongdoing. Additionally, public servants may lose their immunity if they act with a personal motive or gain, exceeding the boundaries of their official responsibilities.

Overall, while public servant immunity exists to protect government officials from frivolous lawsuits and allow them to perform their duties without fear of retribution, it should not be a license to violate the constitution or infringe on the rights of citizens. Checks and balances are necessary to hold public servants accountable and ensure that their actions align with the principles of the constitution.

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Unconstitutional detention

Freedom from arbitrary or unconstitutional detention is a fundamental human right. However, in the post-9/11 era, the USA Patriot Act has granted the federal government broad powers to detain immigrants and non-citizens, raising concerns about unconstitutional detention.

The USA Patriot Act, enacted after the September 11 attacks, expanded the government's authority to deport aliens linked to terrorist activity and reduced their procedural protections. The Act allows for the indefinite detention of immigrants found deportable but whom other countries refuse to accept. This has led to concerns about the infringement of non-citizens' constitutional rights, with civil liberties organizations mounting legal challenges.

In one notable case, the ACLU challenged the constitutionality of INS mandatory pre-hearing detention, and in 1998, a federal district court ruled that it violated the Due Process clause of the Fifth Amendment. Similarly, in the 1999 case of Fernandez v. Vosea, a federal district court judge asserted the basic human rights of detainees, including the right to liberty.

The Supreme Court's decision in Jennings v. Rodriguez, a class-action lawsuit challenging the government's practice of jailing immigrants during deportation proceedings, is also relevant. While the Court rejected the ACLU's claim that immigration laws require hearings, it did not address whether due process permits indefinite detention without hearings, missing an opportunity to uphold the rights of vulnerable immigrants.

Furthermore, the Trump administration's aggressive immigration policies have resulted in controversial arrests and detentions, such as that of Mr. Khalil, detained in direct retaliation for his advocacy for Palestinian rights. These cases highlight the ongoing struggle to uphold constitutional rights and due process in the context of immigration detention.

Violation by government

The US Constitution has been violated multiple times by the government and its agencies, despite the fact that it is the very document that governs their powers. The First Amendment, in particular, has been violated many times, often by those in positions of power, including national leaders.

The First Amendment is not the only part of the Constitution to have been infringed. The Federal Communications Commission (FCC), for example, has frequently violated individuals' constitutional rights by imposing regulations that are not required by federal law. The FCC has broad discretionary powers, and it has used these to impose rules such as the Fairness Doctrine and EEO rules, which have been deemed unconstitutional. The victims of these violations often suffer in silence, fearing governmental retribution if they raise constitutional and legal arguments against the government.

The Supreme Court also plays a role in upholding the Constitution, and it regularly strikes down laws and regulations that are found to be unconstitutional. However, there is often a lack of accountability for those who violate the Constitution, as public servants have immunity for liability in their public functions. This immunity can lead to impunity, allowing those in power to violate the Constitution without consequence.

In addition to the actions of the FCC, there have been other instances where government actions have been deemed likely unconstitutional by the judiciary. For example, in the case of "Mr. Martinez", a judge determined that the administration's rationale was likely unconstitutional and demanded the review of agencies and personnel involved in his "violent arrest and unconstitutional detention." Similarly, a federal court found a bill unconstitutional as it infringed on federal authority to enforce immigration laws.

Despite these violations, it is important to note that the government generally acts quickly to remedy situations that endanger public health and safety and takes extraordinary measures to promote these.

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