Legal Defense to Secular Government in the United States

LEGAL DEFENSE OF RICHARD THOMAS EWERT AKA Obadyah

Translation of Obadyah: Hebrew – Servant of YAH
Purpose of Obadyah – To Teach the Gentiles to Obey YAHWEH as a prophet, being only servant to YAH and his commandments

United States Constitution

Article 6: Supremacy Clause

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Source: https://www.law.cornell.edu/constitution/articlevi

Article 4 Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article 4 Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Source: https://www.law.cornell.edu/constitution/articleiv

Article 5: Amending the Constitution
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Source: https://www.law.cornell.edu/constitution/first_amendment

FREE EXERCISE CLAUSE:

The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. Free-exercise clauses of state constitutions which protected religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause.[1] The Clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.”[2] The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.[3]
Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict. E.g., Thomas v. Review Board, 450 U.S. 707 (1981). As mentioned previously, the Free Exercise Clause implies special accommodation of religious ideas and actions, even to the point of exemptions to generally applicable laws. Such a special benefit seems to violate the neutrality between “religion and non-religion” mandated by the Establishment Clause. McConnell explains:
If there is a constitutional requirement for accommodation of religious conduct, it will most likely be found in the Free Exercise Clause. Some say, though, that it is a violation of the Establishment Clause for the government to give any special benefit or recognition of religion. In that case, we have a First Amendment in conflict with itself—the Establishment Clause forbidding what the Free Exercise Clause requires.[4]
Historically, the Supreme Court has been inconsistent in dealing with this problem. At various times, the Court has either applied a broad or narrow application of the clause.
When the First Amendment was drafted, it applied only to the U.S. Congress. As such, state and local governments could abridge the Free Exercise Clause as long as there was no similar provision in the state constitution. In 1940, the Supreme Court held in Cantwell v. Connecticutthat, due to the Fourteenth Amendment, the Free Exercise Clause is enforceable against state and local governments (this act of using the Fourteenth Amendment as the vehicle through which the Court applies the Bill of Rights to the states is also known as the Incorporation Doctrine).
[1] Michael McConnell, Religion and the Constitution (2002), pg. 105.
[2] Id. at 107.
[3] Richard Posner and Michael McConnell, "An Economic Approach to Issues of Religious Freedom," 56 University of Chicago Law Review 1 (1989).
[4] McConnell, note 1 above, at 102.

Source: https://www.law.cornell.edu/wex/free_exercise_clause

4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

7th Amendment
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Source: https://www.law.cornell.edu/constitution/seventh_amendment

Incorporation Doctrine
Overview
The incorporation doctrine is a constitutional doctrine through which parts of the first ten amendments of the United States Constitution(known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally.
Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Supreme Court found the Bill of Rights to only apply to the Federal government and to federal court cases. During the signing of the Constitution, every state in the negotiation had different levels of concerns with a too powerful Federal government, and the preamble to the Bill of Rights highlights the importance of the Bill of Rights in limiting overreach by the newly created government. The Supreme Court noted that the Bill of Rights was clearly intended to limit only the federal government (see Barron v City of Baltimore(1833)). States and state courts could choose to adopt similar laws, but were under no obligation to do so.
After the passage of the Fourteenth Amendment, the Supreme Court, through a string of cases, found that the Due Process clause of the Fourteenth amendment included applying parts of the Bill of Rights to States (referred to as incorporation). A lot of contention surrounds whether the Fourteenth Amendment should incorporate any substantive rights, with opinions from Supreme Court justices ranging from complete to no incorporation (see substantive due process). Rather than find that the Due Process clause incorporates all of the Bill of Rights, the Supreme Court supported selectively incorporating rights that the Court finds as essential to due process. Under selective incorporation, the Supreme Court incorporated certain parts of certain amendments, rather than incorporating an entire amendment at once.
Some argue that the Privileges or Immunities Clause is a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights but because Slaughter-House Cases dealing with this clause are surrounded by controversy this theory is not supported by the majority of the court.
As a note, the Ninth Amendment and the Tenth Amendment have not been incorporated, and it is unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies upon the Ninth Amendment when deciding cases.
Incorporated Amendments

Full Incorporation
Partial Incorporation
No Incorporation
First Amendment
Fifth Amendment (The right to indictment by a grand jury has not been incorporated)
Third Amendment
Second Amendment
Sixth Amendment (The right to a jury selected from residents of crime location has not been incorporated)
Seventh Amendment

Fourth Amendment


Eighth Amendment


Reverse Incorporation
Reverse incorporation under Bolling v. Sharpe, refers to the Supreme Court using state law to fill in the gaps when deciding issues which the Supreme Court itself has not considered before. This doctrine has not been used very often by the Supreme Court. For more on reverse incorporation, see this Southern California Law Review article and this University of Michigan Law Review article.
Further Reading
For more on the Incorporation Doctrine, see thisGeorgetown Law Article on Selective Incorporation.
[Last updated in October of 2022 by the Wex Definitions Team]Source: https://www.law.cornell.edu/wex/incorporation_doctrine

10th amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Source: https://www.law.cornell.edu/constitution/tenth_amendment

13th amendment
Section 1.Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.Congress shall have power to enforce this article by appropriate legislation.
Source: https://www.law.cornell.edu/constitution/amendmentxiii


14th amendment
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Source: https://www.law.cornell.edu/constitution/amendmentxiv

NEW YORK STATE CONSTITUTION

Article I - Bill Of Rights
Section 3 - Freedom of worship; religious liberty

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. (Amended by vote of the people November 6, 2001.)

https://law.justia.com/constitution/new-york/article-i/section-3/

Section 11 - Equal protection of laws; discrimination in civil rights prohibited
Universal Citation: NY Const art I § 11
No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; amended by vote of the people November 6, 2001.)

https://law.justia.com/constitution/new-york/article-i/section-11/

ARTICLE 12

The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.

https://law.justia.com/constitution/new-york/article-xii/section-1/

Article XIII - Public Officers
Section 1 - Oath of office; no other test for public office
Universal Citation: NY Const art XIII § 1
Members of the legislature, and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of ......, according to the best of my ability;" and no other oath, declaration or test shall be required as a qualification for any office of public trust, except that any committee of a political party may, by rule, provide for equal representation of the sexes on any such committee, and a state convention of a political party, at which candidates for public office are nominated, may, by rule, provide for equal representation of the sexes on any committee of such party. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

https://law.justia.com/constitution/new-york/article-xiii/section-1/

Section 5 - Removal from office for misconduct
Universal Citation: NY Const art XIII § 5
Provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative and who shall be elected at general elections, and also for supplying vacancies created by such removal. (Formerly §7 of Art. 10. Renumbered by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938. Formerly §10, renumbered §5 without change by amendment approved by vote of the people November 6, 1962; former §5 repealed by same amendment.)

https://law.justia.com/constitution/new-york/article-xiii/section-5/

Section 13 - Law enforcement and other officers
Universal Citation: NY Const art XIII § 13
  1. Except in counties in the city of New York and except as authorized in section one of article nine of this constitution, registers in counties having registers shall be chosen by the electors of the respective counties once in every three years and whenever the occurring of vacancies shall require; the sheriff and the clerk of each county shall be chosen by the electors once in every three or four years as the legislature shall direct. Sheriffs shall hold no other office. They may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense. In each county a district attorney shall be chosen by the electors once in every three or four years as the legislature shall direct. The clerk of each county in the city of New York shall be appointed, and be subject to removal, by the appellate division of the supreme court in the judicial department in which the county is located. In addition to his or her powers and duties as clerk of the supreme court, he or she shall have power to select, draw, summon and empanel grand and petit jurors in the manner and under the conditions now or hereafter prescribed by law, and shall have such other powers and duties as shall be prescribed by the city from time to time by local law.
  2. Any district attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision of this article which may come to his or her knowledge, shall be removed from office by the governor, after due notice and an opportunity of being heard in his or her defense. The expenses which shall be incurred by any county, in investigating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this state, within such county, or of receiving bribes by any such person in said county, shall be a charge against the state, and their payment by the state shall be provided for by law.
  3. The city of New York is hereby vested with power from time to time to abolish by local law, as defined by the legislature, the office of any county officer within the city other than judges, clerks of counties and district attorneys, and to assign any or all functions of such officers to city officers, courts or clerks of counties, and to prescribe the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of the persons holding such offices and the employees therein, and to assign to city officers any powers or duties of clerks of counties not assigned by this constitution. The legislature shall not pass any law affecting any such matters in relation to such offices within the city of New York except on message from the governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house, except that existing laws regarding each such office shall continue in force, and may be amended or repealed by the legislature as heretofore, until the power herein granted to the city has been exercised with respect to that office. The provisions of article nine shall not prevent the legislature from passing general or special laws prescribing or affecting powers and duties of such city officers or such courts or clerks to whom or which functions of such county officers shall have been so assigned, in so far as such powers or duties embrace subjects not relating to property, affairs or government of such city. (Added by vote of the people November 5, 1963. Subdivisions (a), (b) and (c), formerly §§5, 6 and 8 of Art. 9. Subdivision (a) amended by vote of the people November 7, 1972; subdivision (a) further amended by vote of the people November 6, 1984; November 7, 1989; further amended by vote of the people November 6, 2001.)
https://law.justia.com/constitution/new-york/article-xiii/section-13/

Article III - Legislature
Section 13 - Enacting clause of bills; no law to be enacted except by bill
Universal Citation: NY Const art III § 13
The enacting clause of all bills shall be "The People of the State of New York, represented in Senate and Assembly, do enact as follows," and no law shall be enacted except by bill. (Formerly §14. Renumbered by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

https://law.justia.com/constitution/new-york/article-iii/section-13/

Article IX - Local Governments
Section 1 - Bill of rights for local governments.
Universal Citation: NY Const art IX § 1
Effective local self-government and intergovernmental cooperation are purposes of the people of the state. In furtherance thereof, local governments shall have the following rights, powers, privileges and immunities in addition to those granted by other provisions of this constitution:
  1. Every local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof. Every local government shall have power to adopt local laws as provided by this article.
  2. All officers of every local government whose election or appointment is not provided for by this constitution shall be elected by the people of the local government, or of some division thereof, or appointed by such officers of the local government as may be provided by law.
  3. Local governments shall have power to agree, as authorized by act of the legislature, with the federal government, a state or one or more other governments within or without the state, to provide cooperatively, jointly or by contract any facility, service, activity or undertaking which each participating local government has the power to provide separately. Each such local government shall have power to apportion its share of the cost thereof upon such portion of its area as may be authorized by act of the legislature.
  4. No local government or any part of the territory thereof shall be annexed to another until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum and until the governing board of each local government, the area of which is affected, shall have consented thereto upon the basis of a determination that the annexation is in the over-all public interest. The consent of the governing board of a county shall be required only where a boundary of the county is affected. On or before July first, nineteen hundred sixty-four, the legislature shall provide, where such consent of a governing board is not granted, for adjudication and determination, on the law and the facts, in a proceeding initiated in the supreme court, of the issue of whether the annexation is in the over-all public interest.
  5. Local governments shall have power to take by eminent domain private property within their boundaries for public use together with excess land or property but no more than is sufficient to provide for appropriate disposition or use of land or property which abuts on that necessary for such public use, and to sell or lease that not devoted to such use. The legislature may authorize and regulate the exercise of the power of eminent domain and excess condemnation by a local government outside its boundaries.
  6. No local government shall be prohibited by the legislature (1) from making a fair return on the value of the property used and useful in its operation of a gas, electric or water public utility service, over and above costs of operation and maintenance and necessary and proper reserves, in addition to an amount equivalent to taxes which such service, if privately owned, would pay to such local government, or (2) from using such profits for payment of refunds to consumers or for any other lawful purpose.
  7. A local government shall have power to apportion its cost of a governmental service or function upon any portion of its area, as authorized by act of the legislature.
    1. Counties, other than those wholly included within a city, shall be empowered by general law, or by special law enacted upon county request pursuant to section two of this article, to adopt, amend or repeal alternative forms of county government provided by the legislature or to prepare, adopt, amend or repeal alternative forms of their own. Any such form of government or any amendment thereof, by act of the legislature or by local law, may transfer one or more functions or duties of the county or of the cities, towns, villages, districts or other units of government wholly contained in such county to each other or when authorized by the legislature to the state, or may abolish one or more offices, departments, agencies or units of government provided, however, that no such form or amendment, except as provided in paragraph (2) of this subdivision, shall become effective unless approved on a referendum by a majority of the votes cast thereon in the area of the county outside of cities, and in the cities of the county, if any, considered as one unit. Where an alternative form of county government or any amendment thereof, by act of the legislature or by local law, provides for the transfer of any function or duty to or from any village or the abolition of any office, department, agency or unit of government of a village wholly contained in such county, such form or amendment shall not become effective unless it shall also be approved on the referendum by a majority of the votes cast thereon in all the villages so affected considered as one unit.
    2. After the adoption of an alternative form of county government by a county, any amendment thereof by act of the legislature or by local law which abolishes or creates an elective county office, changes the voting or veto power of or the method of removing an elective county officer during his or her term of office, abolishes, curtails or transfers to another county officer or agency any power of an elective county officer or changes the form or composition of the county legislative body shall be subject to a permissive referendum as provided by the legislature. (Amended by vote of the people November 6, 2001.)
https://law.justia.com/constitution/new-york/article-ix/section-1/

Section 2 - Powers and duties of legislature; home rule powers of local governments; statute of local governments.
Universal Citation: NY Const art IX § 2
  1. The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution.
  2. Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:
    1. Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year.
    2. Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b) except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.
    3. Shall have the power to confer on local governments powers not relating to their property, affairs or government including but not limited to those of local legislation and administration, in addition to those otherwise granted by or pursuant to this article, and to withdraw or restrict such additional powers.
  3. In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:
    1. The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees, except that cities and towns shall not have such power with respect to members of the legislative body of the county in their capacities as county officers.
    2. In the case of a city, town or village, the membership and composition of its legislative body.
    3. The transaction of its business.
    4. The incurring of its obligations, except that local laws relating to financing by the issuance of evidences of indebtedness by such local government shall be consistent with laws enacted by the legislature.
    5. The presentation, ascertainment and discharge of claims against it.
    6. The acquisition, care, management and use of its highways, roads, streets, avenues and property.
    7. The acquisition of its transit facilities and the ownership and operation thereof.
    8. The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.
    9. The wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or sub-contractor performing work, labor or services for it.
    10. The government, protection, order, conduct, safety, health and well-being of persons or property therein.
  4. Except in the case of a transfer of functions under an alternative form of county government, a local government shall not have power to adopt local laws which impair the powers of any other local government.
  5. The rights and powers of local governments specified in this section insofar as applicable to any county within the city of New York shall be vested in such city. (Amended by vote of the people November 6, 2001.)
https://law.justia.com/constitution/new-york/article-ix/section-2/

Section 3 - Existing laws to remain applicable; construction; definitions.
Universal Citation: NY Const art IX § 3
  1. Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to:
    1. The maintenance, support or administration of the public school system, as required or provided by article XI of this constitution, or any retirement system pertaining to such public school system,
    2. The courts as required or provided by article VI of this constitution, and
    3. Matters other than the property, affairs or government of a local government.
  2. The provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution.
  3. Rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed.
  4. Whenever used in this article the following terms shall mean or include:
    1. "General law." A law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.
    2. "Local government." A county, city, town or village.
    3. "People." Persons entitled to vote as provided in section one of article two of this constitution.
    4. "Special law." A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.
https://law.justia.com/constitution/new-york/article-ix/section-3/

Article X - Corporations
Section 4 - Corporations; definition; right to sue and be sued
Universal Citation: NY Const art X § 4
The term corporations as used in this section, and in sections 1, 2 and 3 of this article shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons. (Formerly §3 of Art. 8. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

https://law.justia.com/constitution/new-york/article-x/section-4/

Article XVII - Social Welfare
Section 3 - Public health
Universal Citation: NY Const art XVII § 3
The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

https://law.justia.com/constitution/new-york/article-xvii/section-3/

Section 2 - State board of social welfare; powers and duties
Universal Citation: NY Const art XVII § 2
The state board of social welfare shall be continued. It shall visit and inspect, or cause to be visited and inspected by members of its staff, all public and private institutions, whether state, county, municipal, incorporated or not incorporated, which are in receipt of public funds and which are of a charitable, eleemosynary, correctional or reformatory character, including all reformatories for juveniles and institutions or agencies exercising custody of dependent, neglected or delinquent children, but excepting state institutions for the education and support of the blind, the deaf and the dumb, and excepting also such institutions as are hereinafter made subject to the visitation and inspection of the department of mental hygiene or the state commission of correction. As to institutions, whether incorporated or not incorporated, having inmates, but not in receipt of public funds, which are of a charitable, eleemosynary, correctional or reformatory character, and agencies, whether incorporated or not incorporated, not in receipt of public funds, which exercise custody of dependent, neglected or delinquent children, the state board of social welfare shall make inspections, or cause inspections to be made by members of its staff, but solely as to matters directly affecting the health, safety, treatment and training of their inmates, or of the children under their custody. Subject to the control of the legislature and pursuant to the procedure prescribed by general law, the state board of social welfare may make rules and regulations, not inconsistent with this constitution, with respect to all of the functions, powers and duties with which the department and the state board of social welfare are herein or shall be charged. (New. Derived in part from former §11 of Art. 8. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

https://law.justia.com/constitution/new-york/article-xvii/section-2/

Preamble
We The People of the State of New York, grateful to Almighty God for our Freedom, in order to secure its blessings, DO ESTABLISH THIS CONSTITUTION.

https://law.justia.com/constitution/new-york/preamble/

Section 242 Title 18 USC
  • Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.


https://www.justice.gov/crt/deprivation-rights-under-color-law#:~:text=Section%20242%20of%20Title%2018,laws%20of%20the%20United%20States.

DOJ Email:

You contacted the Department of Justice on May 28, 2023. Your report number is 299196-TCK. The Civil Rights Division relies on information from community members to identify potential civil rights violations. The Federal Bureau of Investigation and other law enforcement agencies conduct investigations for the Division. Therefore, you may want to contact your local FBI office or visit www.FBI.gov.


- Civil rights violations by persons acting under color of law, such as federal, state, or other police officers or corrections officers;
- Hate crimes;
- Force or threats intended to interfere with religious activities because of their religious nature;

[email protected]


Establishment Clause
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The First Amendment's Establishment Clause prohibits the government from making any law“respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.
Although some government action implicating religion is permissible, and indeed unavoidable, it is not clear just how much the Establishment Clause tolerates. In the past, the Supreme Court has permitted religious invocations to open legislative session (see: Town of Greece v. Galloway), public funds to be used for private religious school bussing (see: Everson v. Board of Education), and textbooks and university funds to be used to print and publish student religious groups' publications (see: Rosenberger v. Rector and Visitors of the University of Virginia). Conversely, the Court has ruled against some overtly religious displays at courthouses (County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter), state funding supplementing teacher salaries at religious schools (Lemon v. Kurtzman), and some overly religious holiday decorations on public land(Allegheny v. ACLU).
One point of contention regarding the Establishment Clause is how to frame government actions that implicate religion. Framing questions often arise in the context of permanent religious monuments on public land. Although it is reasonably clear that cities cannot install new religious monuments, there is fierce debate over whether existing monuments should be removed. When the Supreme Courtconsidered this issue in Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU, 545 U.S. 844 (2005), it did not articulate a clear general standard for deciding these types of cases. The Court revisited this issue in Salazar v. Buono (08-472), a case which considered the constitutionality of a large white Christian cross erected by members of the Veterans of Foreign Wars on federal land in the Mojave Desert.
While five justices concluded that a federal judgeerred in barring a congressionally ordered land transfer which would place the memorial on private land, there was no majority reasoning as to why. Three Justices held that the goal of avoiding governmental endorsement of religion does not require the destruction of religious symbols in the private realm, while Justice Scalia and Justice Thomas concluded that the plaintifflacked standing to bring this complaint.
[Last updated in November of 2022 by the Wex Definitions Team]

Unconstitutional Official Acts
16 Am Jur 2d, Sec 177 late 2d, Sec 256:
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.
No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.
Jon Roland:
Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it.
All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one's life.
Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.

https://constitution.org/1-Law/uslaw/16amjur2nd.htm#:~:text=Any%20unconstitutional%20act%20of%20an,the%20commission%20of%20unlawful%20acts.

Title 5 Section 3331
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.

https://www.law.cornell.edu/uscode/text/5/3331#:~:text=An%20individual%2C%20except%20the%20President,I%20am%20about%20to%20enter.

Title 18 Section 912
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

https://www.law.cornell.edu/uscode/text/18/912

Title 42 Section 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

https://www.law.cornell.edu/uscode/text/42/1983


GLOSSARY OF TERMS


Exercise
To put into action, practice, or force; to make use of something, such as a right or option.
To exercise dominion over land is to openly indicate absolute possession and control.
To exercise discretion is to choose between doing and not doing something, the decision being based on sound judgment.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Source: Blacks law 2nd edition

Exercise

To make use of. Thus, to exercise a right or power is to do something which it enables the holder to do. U. S. v. Souders, 27 Fed. Cas. 1267; Cleaver v. Comm., 34 Pa. 284; Branch v. Glass works, 96 Ga. 573, 23 S. E. 128

Licentiousness
The Indulgence of the arbitrary will of the individual, wlth-out regard to ethics or law, or respect for the rights of others. In this lt differs from “liberty;’’ for the latter term may properly be used only of the exercise of the will ln lts moral freedom, with Justice to all men and obedience to the lows, welch v. Durand, 36 Conn. 184, 4 Am. Rep. 55; State v. Brigman, 94 N. C. 889

Source: Blacks law 2nd edition

Integrity
As occaslonally used ln statutes prescribing the qualifications of pub-lic officers, trustees, etc., this term means soundness of moral prlnclple and character, as shown, by one person dealing wlth others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it is synonymous with “probity,” “honesty,” and “uprightness.” In re Bau-quler’s Estate, 88 Cal. 302, 26 Pac. 178; In re Gordon’s Estate, 142 Cal. 125, 75 Pac. 672

Source: Blacks law 2nd edition


Immunity
An exemption from serv-ing in an office, or performing duties which the law generally requires other citizens to perform. Long v. Converse, 91 U. S. 113, 23 L. Ed. 233; Ex parte Levy, 43 Ark. 54, 51 Am. Rep. 550; Lonas v. State, 3 Heisk. (Tenn.) 306; Douglass v. Stephens, 1 Del. Ch. 476

Source: Blacks law 2nd edition

Duty
In lts use in jurisprudence, this word is the correlative of right. Thus, wherever there exists a right in any person, there also rests a corresponding duty upon

Source: Blacks law 2nd edition

Jurisprudence
The philosophy of law, or the science which treats of the prin-ciples of positive law and legal relations

Source: Blacks law 2nd edition

Republic
That form of government in which the administration of affairs is open to all the citizens. A political unit or "state," independent of its form of government.
The word republic, derived from the Latin res publica, or "public thing," refers to a form of government where the citizens conduct their affairs for their own benefit rather than for the benefit of a ruler. Historically republics have not always been democratic in character, however. For example, the ancient Republic of Venice was ruled by an aristocratic elite.
In the U.S. historical tradition, the belief in republicanism shaped the U.S. Revolution and Constitution. Before the revolution, leaders developed many political theories to justify independence from Great Britain. Thomas Paine, in his book Common Sense (1776), called for a representative government for the colonies and for a written constitution. Paine rejected the legitimacy of the monarchy to have a part in government. This attack on the king was echoed the following year in the Declaration of Independence, where Thomas Jefferson proposed that colonists reject the monarchy and become republican citizens. Framers of the U.S. Constitution intended to create a republican government. Article IV, Section 4, states "The United States shall guarantee to every State in this Union a Republican Form of Government…." Though the language was vague, the authors of the Constitution clearly intended to prevent the rise to power of either a monarchy or a hereditary aristocracy. Article I, Section 9, states, "No Title of Nobility shall be granted by the United States," and most state constitutions have similar provisions.
The guarantee of republican government was designed to provide a national remedy for domestic insurrection threatening the state governments and to prevent the rise of a monarchy, about which there was some talk at the time.James Madison, the author of many of the essays included in The Federalist Papers (1787–88), put forward a sophisticated concept of republican government. He explained in Number 10 that a republic must be contrasted with a democracy. In the eighteenth century the term "democracy" meant what is now called a pure or direct democracy, wherein legislation is made by a primary assembly of citizens, as existed in several rural Swiss cantons and in New England towns. In a pure democracy, Madison argued, there is no check on the majority to protect the weaker party or individuals and therefore such democracies "have ever been spectacles of turbulence and contention," where rights of personal security and property are always in jeopardy.
By a republic, Madison meant a system in which representatives are chosen by the citizens to exercise the powers of government. In Number 39 of The Federalist Papers, he returned to this theme, saying that a republic "is a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." Generally, such leaders as Madison and John Adams believed that republicanism rests on the foundation of a balanced constitution, involving a Separation of Powers and checks and balances.
The republican form of government has remained a constant in U.S. politics. State constitutions follow the federal constitution in dividing powers among the legislative, executive, and judicial branches. Likewise, states have adopted the various checks and balances that exist between the three branches, including the executive Veto power and Judicial Review.
The U.S. Supreme Court has stayed out of controversies that involve whether the government of a state is republican in character. For example, in Pacific States Telephone and Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912), the Court declined to rule whether state legislation by initiative and Referendum (legislation approved directly by the people through the ballot) was inconsistent with republicanism. The Court refused to rule because it considered this issue a Political Question outside its jurisdiction. It is now well established that it is the province of Congress and the president, not the courts, to decide whether the government of a state is republican in character.
Cross-references
Constitution of the United States; Federalist Papers; Locke, John.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
REPUBLIC. A commonwealth; that form of government in which the administration of affairs is open to all the citizens. In another sense, it signifies the state, independently of its form of government. 1 Toull. n. 28, and n. 202, note. In this sense, it is used by Ben Johnson. Those that, by their deeds make it known, whose dignity they do sustain; And life, state, glory, all they gain, Count the Republic's, not their own, Vide Body Politic; Nation; State.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
Mentioned inCopyright © 2003-2023 Farlex, Inc Disclaimer
All content on this website, including dictionary, thesaurus, literature, geography, and other reference data is for informational purposes only. This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional.

Probable Cause
Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit.
Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim or charge is true.
The probable cause standard is more important in Criminal Law than it is in Civil Law because it is used in criminal law as a basis for searching and arresting persons and depriving them of their liberty. Civil cases can deprive a person of property, but they cannot deprive a person of liberty. In civil court a plaintiff must possess probable cause to levy a claim against a defendant. If the plaintiff does not have probable cause for the claim, she may later face a Malicious Prosecution suit brought by the defendant. Furthermore, lack of probable cause to support a claim means that the plaintiff does not have sufficient evidence to support the claim, and the court will likely dismiss it.
In the criminal arena probable cause is important in two respects. First, police must possess probable cause before they may search a person or a person's property, and they must possess it before they may arrest a person. Second, in most criminal cases the court must find that probable cause exists to believe that the defendant committed the crime before the defendant may be prosecuted.
There are some exceptions to these general rules. Police may briefly detain and conduct a limited search of a person in a public place if they have a reasonable suspicion that the person has committed a crime. Reasonable suspicion is a level of belief that is less than probable cause. A police officer possesses reasonable suspicion if he has enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it. In practice this requirement means that an officer need not possess the measure of knowledge that constitutes probable cause to Stop and Frisk a person in a public place. In any case, an officer may not arrest a person until the officer possesses probable cause to believe that the person has committed a crime.
The requirement of probable cause for a Search and Seizure can be found in the Fourth Amendment to the U.S. Constitution, which states,
the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.
All states have similar constitutional prohibitions against unreasonable searches and seizures.
The requirement of probable cause works in tandem with the warrant requirement. A warrant is a document that allows police to search a person, search a person's property, or arrest a person. A judicial magistrate or judge must approve and sign a warrant before officers may act on it. To obtain a search or arrest warrant, officers must present to the magistrate or judge enough facts to constitute probable cause. A warrant is not required for all searches and all arrests. Courts have carved out exceptions that allow police to search and arrest persons without a warrant when obtaining a warrant would be impractical.
The precise amount of evidence that constitutes probable cause depends on the circumstances in the case. To illustrate, assume that a police officer has stopped a motor vehicle driver for a traffic violation. In the absence of any other facts indicating criminal activity by the driver, it would be a violation of the Fourth Amendment if the officer conducted a full-blown search of the driver and the vehicle. The mere commission of a traffic violation is not, in and of itself, a fact that supports probable cause to believe that the driver has committed a crime. However, if the officer notices that the driver's eyes are bloodshot or that the driver smells of alcohol, the officer may detain and question the defendant, search him, and place him under arrest. Most courts hold that a driver's commission of a traffic violation combined with the appearance that the driver has used drugs or alcohol constitute sufficient evidence to lead a reasonable person to believe that the person is driving under the influence of drugs or alcohol.
Probable cause is not equal to absolute certainty. That is, a police officer does not have to be absolutely certain that criminal activity is taking place to perform a search or make an arrest. Probable cause can exist even when there is some doubt as to the person's guilt. Courts take care to review the actions of police in the context of everyday life, Balancing the interests of law enforcement against the interests of personal liberty in determining whether probable cause existed for a search or arrest.
Legislatures may maintain statutes relating to probable cause. Many such statutes declare that a certain thing constitutes probable cause to believe that a person has committed a particular offense. For example, under federal law, a Forfeiturejudgment of a foreign court automatically constitutes probable cause to believe that the forfeited property also is subject to forfeiture under the federal Racketeering law (18 U.S.C.A. § 981 (i)(3) [1986]).
Further readings
Burkoff, John M. 2000. "When is Probable Cause Information in a Search Warrant 'Stale'?" Search and Seizure Law Report 27 (December): 81–8.
Lerner, Craig S. 2003. "The Reasonableness of Probable Cause." Texas Law Review 81 (March): 951–1029.
Cross-references
Automobile Searches; Criminal Procedure.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
probable cause
n. sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions typical of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon, or drugs may be claimed as self-fulfilling proof of probable cause. Technically, probable cause has to exist prior to arrest, search or seizure. (See: search, search and seizure, Bill of Rights)
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
PROBABLE CAUSE. When there are grounds for suspicion that a person has committed a crime or misdemeanor, and public justice and the good of the community require that the matter should be examined, there is said to be a probable cause for, making a charge against the accused, however malicious the intention of the accuser may have been. Cro. Eliz. 70; 2 T. R. 231; 1 Wend. 140, 345; 5 Humph. 357; 3 B. Munr. 4. See 1 P. S. R. 234; 6 W. & S. 236; 1 Meigs, 84; 3 Brev. 94. And probable cause will be presumed till the contrary appears.
2. In an action, then, for a malicious prosecution, the plaintiff is bound to show total absence of probable cause, whether the original proceedings were civil or criminal. 5 Taunt. 580; 1 Camp. N. P. C. 199; 2 Wils. 307; 1 Chit. Pr. 48; Hamm. N. P. 273. Vide Malicious prosecution, and 7 Cranch, 339; 1 Mason's R. 24; Stewart's Adm. R. 115; 11 Ad. & El. 483; 39 E. C. L. R. 150; 24 Pick. 81; 8 Watts, 240; 3 Wash. C. C. R. 31: 6 Watts & Serg. 336; 2 Wend. 424 1 Hill, S. C. 82; 3 Gill & John. 377; 1 Pick. 524; 8 Mass. 122; 9 Conn. 309; 3 Blackf. 445; Bouv. Inst. Index, h.t.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
Mentioned inCopyright © 2003-2023 Farlex, Inc Disclaimer
All content on this website, including dictionary, thesaurus, literature, geography, and other reference data is for informational purposes only. This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional