The Doctrine of Constitutional Estoppel

[Soulution]

Hello all, I pray everyone is well!

I have not been active on StSC recently, but that does not mean I have stopped learning! Oh contrar

So anyway, I was reading a thread titled Legal name = mark of the beast a while back and saw that shikamaru shared the Ashwander Rules in response to a question about Social Security

I think I can explain this.

If you look at the case Ashwander v. Tennessee Valley Authority, you will note that there is a standard for raising a Constitutional issue.

If you avail yourself of a statute or act, you will be unable to raise a Constitutional issue. The issue becomes merely administrative.

This is why it is important to correct your status and remove one's self from statutory benefits.

Ashwander rule

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."[1]

2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." [2] "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." [3]

3. The Court will not "formulate a rule of constitutional law broader than is required by the Precise facts to which it is to be applied." [2]

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right to challenge to one who lacks a personal or property right.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." [4]

Many of the other one's are important too.

I started looking into this and found a great law review on the Ashwander Rules The Doctrine of Constitutional Avoidance that explains most of them very well. However, Rule 6 was more or less overlooked. This was a disappointment because Rule 6 could give some much needed insight as to why our constitutional rights are being ignored by the courts.

I found a law article on specifically Rule 6: Constitutional Estoppel which brings up some very interesting mechanics in Constitutional Law

[Soulution]

One method of utilization of a statute which will erect the estoppel is found when a legislative enactment provides a remedy and procedure for ajudicating a right, which if violated, would create a distinct cause of action in itself. Employing the statutory remedy and procedure rather than the non-statutory common law remedy is held to concede the validity of the statute.8 ,The one estopped has the privilege of ignoring or assuming the invalidity of the statute and proceeding at law as if the statutory remedy were non-existant.

The "8th" footnote:

Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581 (1887). Plaintiff utilized an Act of Congress to recover the value of land taken by the United States. The court, in answer to the plaintiff's later assault on the statute's constitutionality, said: "The plaintiff, by adopting that mode, has assented to the taking of its property by the Government for public use, and has agreed to submit the determination of compensation to the tribunal named by Congress." Id. at 599.

I found this particular part of the article (page 4) on constitutional estoppel quite interesting when considering that invoking lawful money redemption is done via statute pursuant . Unless I have misunderstood and/or am unaware of a particular mechanic at play here, a contradiction is raised. Lawful money redemption has been regarded as a common law remedy pursuant the saving to suitors clause () of the Original Judiciary Act

[Soulution]

Lastly, I want to point out that this doctrine of constitutional estoppel seems to explain an inconsistency in case law surrounding constitutional rights v. gov granted privilges.

"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda v. Arizona

"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. United States

"No State shall convert a liberty into a privilege, license it, and charge a fee therefore." Murdock v. Pennsylvania

Given the above examples, and the rest of the case law that supports these decisions, it is safe to say that constitutional rights cannot be converter, traded or otherwise supplemented for government privileges. Now, looking at other case law on the right to travel:

"The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived." Chicago Motor Coach v. Chicago

"The right to operate a motor vehicle upon the public streets and highways is not a mere privilege, it is a right or liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions." Adams v. City of Pocatello

"The right of the Citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive..." Thompson v. Smith; Teche Lines v. Danforth

Again, given the above examples and the rest of the case law, it is safe to say that the right to travel is a constitutional right. However, absent the Constitutional Estoppel doctrine, it would appear as if the case law is contradicting one another because some makes clear that rights cannot be converted, while others say that the right to travel is a right, and yet most still run into the issue of the courts telling Americans that they don't want to hear the defendant mention their constitutional right.

So what's going on?? Well, in light of the Constitutional Estoppel Doctrine, it is now obvious that the individual has availed himself to a statutory benefit effectively creating an estoppel on his rights barring him from invoking them in the court room! It is NOT that we have traded our right to travel for a driving privilege; it is that we have barred ourselves from invoking our right because we have enjoyed the benefits afforded to us in the motor vehicle code! This explains the seemingly inconsistent case law, and why courts ignore our rights when we try to assert them before the judge/magistrate.

From Blacks Law Dictionary revised fourth edition (1968) >>>

[Gavilan]

Thank you for sharing, great insight!

[David Merrill]

Along these lines, amidst the restructure we find salary adjustment - likely this is only Mr. TRUMP putting on a show about restructure. The real restructure is nothing more than a culling of a million US Government employees.

What stood out is how there are two different kinds of judges for two different kinds of oaths of office.

The top of the predominance of federal judge oaths reveals that there are two kinds of judges. The Title 28 Judicial Oath and the Title 5 Administrative Law oath.

Which is why it is important utmost to always focus on the reasoning a federal judge might require the clerk of court publishing the Refusal for Cause remove his signature. The actors are only pretending to be bonded in the judicial capacity. Explain it all you want, like with constitutional estoppel and you are only describing symptoms. It comes down to only one judicial officer on the entire landscape of American Jurisprudence.

There you have it. Now we have gotten so you must read very carefully to see that these are two different oaths - the administrative law oath is signed Witness by non-judicial officer John Glover ROBERTS and the other is signed by Senior Justice Anthony McLeod KENNEDY. Both have the "So help me God." in plain English.

[doug555]

http://drspma.blogspot.com/p/government.html?m=1

The oath we should be focused on... IMO.

[Gavilan]

http://drspma.blogspot.com/p/government.html?m=1

The oath we should be focused on... IMO.

Doug, do you think those running the US will let this go through without issue?

[doug555]

Doug, do you think those running the US will let this go through without issue?

Hmmm... Do "you recognize that the Most High is ruler over the realm of mankind and bestows it on whomever * He wishes.' " Daniel 4:32 ?

[Gavilan]

Regarding the Constitutional challenges, Yuself El address this in his video here https://www.youtube.com/watch?v=LEY7oeyf_6k under the what is called the Ashwander Rules. https://en.wikipedia.org/wiki/Ashwander_rules see #6 "The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits."

[lorne]

I'm enjoying this read from a Canadian perspective although it is quite lengthy.

The Origins of the Deep State in North America

[David Merrill]

Yep. That's the guy who wrote script to pay Union Soldiers in Colorado. I have called it BUCHANNAN's War Chest. The gold fields in Auraria and Central City...

P.S. I read the WWII portion of Tragedy and Hope to my aging father, aloud. He would interrupt me with his recollections and perspectives of that same news of his day. That was an interesting book. I borrowed it with four different colored highlighter pens. I recall marking different categories of interest and returning it so that the lender might not have to spend the entire time reading it.

Sometimes I wonder if he would give or sell that copy to me.

[lorne]

Part two is out ...

The Origins of the Deep State in North America PART II

[David Merrill]

Part two is out ...

The Origins of the Deep State in North America PART II

Maybe not so much consciously but I bet reading Tragedy and Hope helped me formulate Canada as Shock Testing (Silent Weapons lingo) for the Fed in 1913.