Unconstitutional Official Acts
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. 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 both the Constitution and
a law violating it to be valid; one must prevail. This is
succinctly stated as follows:
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 it's enactment and
not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as inoperative
as if it had never been passed. Such a statute leaves the
question that it purports to settle just as it would be had the
statute not been enacted.
Since an unconstitutional law is void, the general principles
follow that it imposes no duties, confers no rights, creates no
office, bestows no power or authority on anyone, affords no
protection, and justifies no acts performed under it.....
A void act cannot be legally consistent with a valid one. An
unconstitutional law cannot operate to supersede any existing
valid law. Indeed, insofar as a statute runs counter to the
fundamental law of the lend, it is superseded thereby.
No one Is bound to obey an unconstitutional law and no courts
are bound to enforce it.
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.