2

I am thinking particularly from the standpoint of:

  • Rights granted (or 'enshrined') under a constitution
  • Subsequent limitations (by jurisdictions) placed on those rights
  • Legal precedents or means for removing or non-acting on those limitations

In order of preference, I am looking for:

  • A law(s) designed to allow rollback of right-limitations when certain conditions are present (licensure, etc)
  • A law(s) designed to cease the limitation(s) under certain situations
  • Law(s) that negates or commutes penalty for exceeding rights limitations given certain judgments of a case

Does anyone know of such a thing, whether in US Law, British common law, AU law, or any Common Law nation?

  • 1
    Not clear what you are asking here. In the case of constitutional rights, what is the mechanism by which the reduction of these rights is supposed to have occured - other than an amendment to the constitution? – DJClayworth Nov 11 '13 at 21:59
  • @DJClayworth currently, 4th amendment rights are reduced - the current high profile law being the Patriot Act. So I would presume that amendments are not the only way to reduce a constitutional right. – New Alexandria Feb 19 '14 at 18:18
  • 1
    Rights are not granted by the Constitution. – Drunk Cynic Jun 20 '18 at 12:04
  • 1
    @DrunkCynic that's a discussion that belongs on Philosophy. – phoog Jun 20 '18 at 14:50
  • @phoog Only for those failing to understand the language and grammar used in its writing, the surrounding documents, or the foundations of the experiment. – Drunk Cynic Jun 20 '18 at 15:27
8

Ever since Marbury v Madison, the Supreme Court of the United States has had the power to determine what is and what isn't constitutional, and to strike down (or roll-back) an unconstitutional law.

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."—U.S. Constitution, Article III, Section 2, Clause 2

Multiple laws allow for the negation or commutation of penalties. The courts may reduce a sentence, a Governor or President may pardon someone.

A pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a monarch or president) or by acts of a parliament or a religious authority.

The relevant constitution text:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

  • This is a good answer. I might add that, if a restriction of rights is in the constitution, congress can always pass an amendment. – Avi Dec 10 '13 at 21:01
  • 1
    @Avi not by themselves, they can't. To be enacted, an amendment also requires ratification by at least 3/4 of the states. – phoog Jun 20 '18 at 14:54
1

The Supreme Court interprets whether the Constitution is being followed, but Congress has the power to write the Constitution. Therefore if the legislature wishes to override the decision of the Supreme Court, they must either edit or add a constitutional amendment. This is extremely hard to do, requiring 2/3 of the House and 2/3 of the Senate agreeing.

The Supreme Court can always hear a similar case and reverse a decision that a previous court has made. For example Plessy v. Ferguson (Separate But Equal) was reversed by Brown v. Board of Education (Separate Is Inherently Unequal).

The President as Commander In Chief controls federal agencies, and can command them not to do certain things, ie when Obama ordered the DEA not to go after legal medical marijuana dispenseries in states that legalized it.

  • 1
    Constitutional amendments can't be enacted by Congress alone - they must be ratified by legislatures or referendums in 3/4 of the states before they take effect. – cpast Jun 13 '14 at 6:46
1

In the United States, the federal Bill of Rights and the federal 14th Amendment recognize constitutionally protected Due Process rights which, if enforced, are a failsafe in favor of the individual and his "life, liberty, or property" (see 5th amendment) as against the rights of State and Federal governments.

Due Process properly includes all substantial rights protected by the Procedures of English Courts of Law or Equity when the federal Bill of Rights was adopted. (Developments in procedure between 1606 and 1789 will be disputable in the United States because of the differing ways the States received the statutes and common law of England. See Benson's "Reception of the Common Law in Missouri".)

English common law procedure includes the right to Jury Nullification whenever the Jury correctly finds an Act of a Legislature to be unconstitutional. The equivalent of the US constitution in British Commonwealth countries includes individual rights admitted in the Coronation Oath, Magna Carta, Bill of Rights, etc. (Note that British Commonwealth officials take their oath of office under the Coronation Oath, because the Crown is the monarch and his successors in a sovereign capacity under his coronation oath.)

Due Process rights also include individual procedural rights the governments admit via statutes passed subsequent to the ratification of the Bill of Rights, for example arising under the Administrative Procedures Act (1946), the Federal Register Act (1935), and the restrictions on the Federal Rules of Civil Procedure recognized by the Rules Enabling Act (1934).

Any time a judiciary adopts procedural rules which have the effect of violating substantial due process rights, the said rules should ideally be disputed by the injured parties in courts, administrative hearings, and before legislators.

Tragically, with the passage of time, the judiciaries have broadly acquiesced to applying Public Policy statements that work against private rights, such as Bar Association policies, unwritten corporate bylaws, unreasonable electronic user access policies, etc.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .