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Constitutional Estoppel

A Tract Book Essay

By

Anthony J. Fejfar, Esq., Coif

© Copyright 2006 by Anthony J. Fejfar

Previously, I have argued that the doctrine of Constitutional

Estoppel be used to limit the ability of those opposed to the United States

Constitution from asserting Constitutional rights in Equity. I would like to

make clear when Constitutional Estoppel cannot be applied. Constitutional

Estoppel is an equitable doctrine, and therefore must be interpreted in light

of Equity. Equity favors those in need, particularly, Equity favors minors

and incompetents. Thus, Constitutional Estoppel can never be applied

against a minor or an incompetent.

Recall, that Constitutional Estoppel applies to prevent one who

denies the existence or application of Constitutional rights in a certain

setting, from himself or herself asserting those same rights in the same or a

similar setting. In the criminal law area, for example, if I deny that the

Constitution requires a search warrant based upon probable cause, as a

general matter, then I can be Constitutionally Estopped in Equity from


asserting on my own behalf the Constitutional requirement of a search

warrant based upon probable cause. The person must be questioned, under

oath at each stage of the proceeding, if he or she changes her mind and

recognizes the existence of Constitutional rights in the same type of setting

generally, then he or she is entitled to the protection of those same

Constitutional rights.

I argue that Constitutional Estoppel should not be applied to anyone

under the age of 21. I also argue that Constitutional Estoppel should not be

applied to a person who has not graduated from Highschool or completed his

or her G.E.D. Obviously, the mentally retarded or the mentally ill cannot

be subjected to Constitutional Estoppel.

Finally, I argue that Equity can and should intervene to protect even

those who are barred at law by Constitutional Estoppel. I argue that

everyone, as a matter of Equity, is entitled to legal rights, including

Constitutional rights, in Equity. In such a case, all rights, including

Constitutional rights must be interpreted in light of Equity. The person

gaining Equitable rights, such as Constitutional rights, both benefits and is

bound by Equity.