IN IN THE COUNTY COURT, IN AND FOR MY COUNTY, FLORIDASTATE OF FLORIDA, ) CASE: 2014 999999 MMDLPLAINTIFF,) 2014 999998 MMDL) v.) DIV: 99) JOHN DOE,) JUDGE: HONORABLE JUDGEDEFENDANT. )____________________________/MEMORANDUM IN SUPPORT OF MOTION TO DISMISS REGARDING CONSTITUTIONAL RIGHTS[footnoteRef:1] [1: Fla. Stat. 90.201Matters which must be judicially noticed (emphasis added).A court shall take judicial notice of: (1)Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States. (2)Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States Supreme Court. (3)Rules of court of the United States Supreme Court and of the United States Courts of Appeal.]

"[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights." -Thomas Jefferson: Notes on Virginia, 1782. Q.XIII (emphasis added)

JOHN DOE, COMES NOW to put the court on notice regarding sacred and God given rights which are and forever will be retained by the Defendant and are thus demanded to be recognized, respected, and duly upheld[footnoteRef:2]. [2: Fla. Const. Art 1 Sec 1.Political power.All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.]

The Defendant, being a private person, a natural man under common law, herein declares he has many rights, some enumerated and some not[footnoteRef:3]. [3: Bill of Rights Article IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.]

Governments first duty is to protect the people, not run their lives Ronald Reagan

TABLE OF CONTENTSINTRODUCTION & OVERVIEW3THE GOVERNMENT WE HAVE3NATURE OF THE CONSTITUTION5SIGNIFICANCE OF THE CONSTITUTION6SUPREMACY QUESTION OF CONFLICTING LAW13INTERPRETATION OF THE CONSTITUTION14NULLIFICATION OF LAWS IN CONFLICT WITH16SUSPENSION OR EXCEPTIONS OF THE CONSTITUTION17CONVERSION OF RIGHTS INTO PRIVILIDGES17THE COURT IS TO PROTECT AGAINST ENCROACHMENT18CERTIFICATE OF SERVICE19

INTRODUCTION & OVERVIEWThis is a Memorandum in support of the authority, supremacy, and applicability of the Constitution (both state and federal) to this case. THE GOVERNMENT WE HAVE

A republic...if you can keep it. -Benjamin Franklin[footnoteRef:4] [4: A lady asked Dr. Franklin, Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor, if you can keep it. From a note of uncertain date by Dr. James McHenry. In a footnote he added that "The lady here aluded to was Mrs. Powel of Philada." Published in The American Historical Review, v. 11, p. 618. At the close of the Constitutional Convention of 1787]

The form of government we have here in America is a constitutional republic, and not a democracy. The definition according to teamlaw.net, has three principle elements:A Constitutional Republic is a government created and controlled, at least, by the Law of a Constitution. The Constitution of the United States of America was, in Law, foundationally based on the Bible, the Magna Carta, the principles of The Declaration of Independence and upon the experience of the people. Those documents recognize the divine nature of mans creation, mans sovereignty and mans divine right to life, liberty, property and the pursuit of happiness.

A Constitutional Republic, by definition, has three principle elements: (1) It is controlled by Law, at least by its Constitution; (2) It recognizes the private independent sovereign nature of each person (man or woman) of competent age and capacity; recognizing those sovereigns as the collective source of all authority in the government, including but not limited to, the governments claim to sovereignty; which sovereign authority is actually the limited collective sovereignty the people granted to it so that the government could function in accord with the law; and,(3) Regarding that individual sovereignty the government must therefore be representative in its nature.

Therefore, if a government can create or control its Law, obviously, Law does not control that government; such a government is not a Republic. A Republic must recognize that Law is unchangeable, or at least that it can only be changed by a higher source than government; this limitation does not limit the government from generating statutes in accord with both said laws and the Constitution; through which instrument, all of the authority the government can acquire from the people is acquired.[footnoteRef:5] [5: http://teamlaw.net/ConstitutionalRepublic.htm ]

NATURE OF THE CONSTITUTIONOn July 4th 1776, the Continental Congress ratified the declaration by the United States of its independence from the Kingdom of Great Britain.[footnoteRef:6] Before this time, the King of Great Britain was the sovereign[footnoteRef:7] power over the colonies. Once we declared our independence, THE PEOPLE were themselves sovereign and created a constitution or charter for a form of government that ruled by consent of the governed[footnoteRef:8]. Even in the first few words of the Florida Constitution, it blatantly states: Art. 1 Sec 1:Political power.All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people. [6: http://en.wikipedia.org/wiki/1776 ] [7: SOVEREIGN. A chief ruler with supreme power; one possessing sovereignty. (q.v.) It is also applied to a king or other magistrate with limited powers. 2. In the United States the sovereignty resides in the body of the people. Vide Rutherf. Inst. 282. http://legal-dictionary.thefreedictionary.com/sovereign ] [8: Declaration of Independence: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ]

It is imperative to understand the nature and order of authority that begins with our Creator, granted unto natural men who construct a charter or constitution for the government that serves them. Some of these men (and/or women) wish to serve the public in an official capacity and are thus called public servants and are required to swear an oath to defend and uphold the constitution that grants and limits their power as a public official. Most definitely, that public officials authority and power to act starts there and ends with additional laws that DO NOT conflict with the constitution. Once this is fully realized, one is disabused by a prevalent assumption that our [the peoples] rights are granted by laws, the government, or even the constitution. The constitution merely recognizes inalienable rights, it does not grant them. The constitution sets up and restricts the government, not THE POPLE. SIGNIFICANCE OF THE CONSTITUTIONAll American law is secondary to than of the constitution. An exception would be our founding fathers looked to Gods Law[footnoteRef:9] and Natural Law[footnoteRef:10] to form their opinions and beliefs in writing the constitution. As the notion goes, God created the universe and nature, then man. Here in America, men create the constitution which gives powers and duties to the government within those confines. The case of Marbury v. Madison, 5 US 137 - Supreme Court 1803 quite thoroughly states in intricate detail how primary the constitution, in fact, is (emphasis is added): [9: "If My people which are called by My name, shall humble themselves, and pray, and seek My face, and turn from their wicked ways; then will I hear from Heaven, and will forgive their sins, and will heal their land." -II Chronicles 7 vs 14 "We must obey GOD rather than men." -Acts 5:29] [10: Thomas Jefferson: Notes on Crimes Bill, 1779. "It is not only vain, but wicked in a legislator to frame laws in opposition to the laws of nature, and to arm them with the terrors of death. This is truly creating crimes in order to punish them."]

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternative there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares "that no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or, to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The groundbreaking case Marbury v. Madison was instrumental in defining the scope of the Courts power. The Court held that the judiciary has the power to interpret the law, to resolve conflicts between laws, and to nullify legislation that is inconsistent with the Constitution of the United States. This controlling case still stands today as on point and has not been overturned. SUPREMACY QUESTION OF CONFLICTING LAWAfter gaining and understanding the facts and the matters at hand as stated in Marbury v. Madison, and not relying on television or even our public school system for guidance, it should not beg the question, what text is supreme or overriding when laws, statutes, court rules, etc. conflict with the constitution? It should be clear the constitution is supreme absolutely. U.S. Constitution, Article Six, Clause 2: 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 Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (The Supremacy Clause of the U.S. Constitution)

And 16 Am Jur 2d, Sec 177 late 2d, Sec 256 states: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 its 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 land, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

Norton v. Shelby County 118 USR 425: An unconstitutional act is not law. It confers no rights, it imposes no duties, it affords no protections, it creates no office. It is in legal contemplation as inoperative as though it has never been passed.

Where rights secured by the constitution are involved there can be no rule or law making legislation which would abrogate abolish them Miranda v. Arizona, 384 U.S. 436INTERPRETATION OF THE CONSTITUTIONOur Constitution is written in plain English and is in reach of the literate to understand. We dont even have to speculate on what our founding fathers meant since they left us with the federalist and anti-federalist and other works which are a part of our history and culture. When in doubt, interpretation should be given in favor of our rights:From Am Jur vol. 16, constitutional law section, sec. 97...That a constitution should receive a liberal interpretation in favor of the citizen is especially true with respect to those provisions which were designed to safeguard the liberty and security of the citizen in regard to both person and property. (see note 31, Bryers v United States 273 U.S. 28. In other words its supposed to be liberally enforced in favor of the citizen for the protections of their rights and property. Any constitutional provision intended to confer a benefit should be liberally construed in favor of the clearly intended and expressly designated beneficiary. Dejammer v hoskill of Albany

According to Bryars v United States, 273 U. S. 28 (1927), Constitutional provisions for the security of a person and property are to be liberally construed, and it is the duty of the court to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment therein.

...the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635; Gouled v. United States, supra, p. 304.The Supreme Court has ruled in the case of Cohens v. Virginia, 19 U.S. 264 (1821) that the book, The Federalist Papers, was the exact record of the intent of the framers of the constitution...Madison, Hamilton, and Jay. So obviously being able to read their published thoughts as they were doing this constitution is very forceful in terms of constitutional interpretation. The intent of the lawmaker is the law. And it shall be liberally enforced in favor of the Defendant. He is among the clearly intended and expressly designated beneficiary.NULLIFICATION OF LAWS IN CONFLICT WITHNorton v Shelby County, 118 US 425 states: An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.The general rule is that an unconstitutional statute though having the form and name of law in in reality no law, but is totally void. 16 Am Jur Vol. 2, sec 177, 256. SUSPENSION OR EXCEPTIONS OF THE CONSTITUTIONThe constitution...

(No emergency has just cause to suppress the constitution.) 16Am Jur 2d., Sec. 98: "While an emergency cannot create power and no emergency justifies the violation of any of the provisions of the United States Constitution or States Constitutions. Public emergency such as economic depression for especially liberal construction of constitutional powers and it has been declared that because of national emergency, it is the policy of the courts of times of national peril, so liberally to construed the special powers vested in the chief executive as to sustain an effectuate the purpose there of, and to that end also more liberally to construed the constituted division and classification of the powers of the coordinate branches of the government and in so far as may not be clearly inconsistent with the constitution."CONVERSION OF RIGHTS INTO PRIVILIDGESMurdock v. Pennsylvania, 319 U.S. 105 (1943) states: A state may not impose a charge for the enjoyment of a right granted by the federal constitution; and that a flat license tax here involved restrains in advance the constitutional liberty of press and religion, and inevitably tends to suppress the exercise thereof.Shuttlesworth v. Birmingham, 394 US 147 - Supreme Court 1969 says: ...our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. Sherar v. Cullen, 481 F. 2d 946 (1973) says "...reflect the obvious concern that there be no sanction or penalty imposed upon one because of his exercise of constitutional rights.THE COURT IS TO PROTECT AGAINST ENCROACHMENTBoyd v United States, 116 US 616: It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. This case is arguing the 5th amendment right, but is relevant in arguing against encroachment of constitutional rights.CERTIFICATE OF SERVICEI hereby certify that a copy hereof has been furnished to the state throught the e-filing portal this day.

On 3/19/15, submitted by,JOHN DOE

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