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On Police Power and Fundamental Righs

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  • Legalbear
    A right protected or created by a constitutional provision * * * is guarded from attack or interference of any kind by the Legislature, or any other
    Message 1 of 1 , Mar 14, 2013

      A right protected or created "by a constitutional provision * * * is guarded from attack or interference of any kind by the Legislature, or any other governmental agent of the state." Menge v. Morris & E. R. Co., 73 N.J.Eq. 177, 67 A. 1028, 1030. "The police power of a state cannot transcend the fundamental law, and cannot be exercised in such manner as to work a practical abrogation of its provisions." Smith v. Farr, 46 Colo. 364, 104 P. 401, 406. "Any legislative exercise under the police power which violates any right guaranteed by the national or state Constitutions is invalid." People v. Harris, 104 Colo. 386, 91 P.2d 989, 994, 122 A.L.R. 1034.


      Go down to page 198 and start reading. The defendants tried to claim they exercise police power in a manner contrary to the Constitution. Not so! Point: State law enforcement acting arbitrarily when there is no damaged party: http://scholar.google.com/scholar_case?case=7785100776696494306&q=%22rational+justice%22&hl=en&as_sdt=4,60


      In re Duncan, 139 U. S. 449, upheld a murder conviction against a claim that the relevant codes had been invalidly enacted. The Court there said:


      "By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities." 139 U. S., at 461. But the Court did not find any of these fundamental principles violated.”




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