2/8/2014 Articles: America's Most Important Property Rights Legislationhttp://www.americanthinker.com/2014/01/americas_most_important_property_rights_legislation.html 3/5
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who intentionally violate this law are subject to liability.Federal precedent includes the law codified at 42 U.S.C. 1983 and 1988, wherecitizens can sue for damages and attorney fees when state actors violateconstitutional rights "under color of state law," meaning under the guise of statelaw.HB 1219 creates whistleblower protections for local officials who come forwardwith violations of this law, and allows the state attorney general to intervene on behalf of victims of government abuse.The bill also instructs courts to nullify local ordinances that violate constitutionalrights. Localities would now have better incentive to write ordinances that complywith our supreme, fundamental and paramount law, the Constitution, in the first place.People will say that courts already have this power to nullify unconstitutional laws.True. But in the name of judicial restraint, courts too often defer to inferior lawsthat violate our supreme law, which allows legislative bodies to trample on our rights. Here, the inferior law eliminates that foible.Constitutionalists especially will like the next provision. It is that local ordinancesdo not have a presumption of constitutional validity.In a 1981 constitutional challenge to a zoning ordinance, the Virginia SupremeCourt declared that local ordinances have a presumption of validity, hence a presumption of constitutionality. This presumption is not created by statute, but by the judiciary, and places the burden on citizens to prove that laws areunconstitutional rather than making government prove that their laws areconstitutional, or at least start the case from a level playing field.The respective supreme courts have accorded state and federal statutes a presumption of constitutionality. Some legal scholars including Professor RandyBarnett have criticized that presumption, even calling it unconstitutional. But, stateand federal laws at least go through a constitutional process of two legislativechambers and a threat of executive veto. It is that constitutional structure --checks and balances -- on which the presumption is based.
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