Posted On: April 29, 2012 by Stephen Bilkis

The United States Constitution is the highest law in the land

The United States Constitution is the highest law in the land. All other laws are derived from its provisions and are based on it. What happens though when a law is challenged as being against the Constitution? Can a law actually be challenged as being against the Constitution?

On December 4, 1998, the District Court of Nassau County, New York, made a decision on one such matter. The issue in this case was whether or not two provisions of the Criminal Procedure Law were actually constitutional. The man who raised the challenge said that because these two provisions did not provide for an adversarial evidentiary hearing to be raised by the defendant, they violated the right of an individual to due process. The man did not argue that those provisions were unconstitutional in his situation but that they were unconstitutional, period.

After reviewing the facts presented and a diligent review of the law, the Court found that those sections of the Criminal Procedure Law were in fact constitutional. Let us look at how the Court came to this conclusion.

First, let's review the facts of the man's case. On August 25, 1998, he was brought to the Court on charges of 2nd degree harrassment. At the end of the hearing, the Court ordered two orders of protection against him for four non-family members. When the man asked for a hearing to decide whether or not those orders were legal, the prosecution objected and said that he had no right to ask for a hearing solely at his request.

Now, before asking whether or not the challenged laws violate Due Process as granted by the Constitution, it must be established that there are certain rights which require protection and which might be affected. So is there a "life, liberty, or property" interest that would be affected? The Court's answer is yes. The orders of protection against the man would in fact affect certain rights such as getting licenses to carry or own firearms, which might affect his legitimate professional or business interests.

After establishing that the right to due process is violated, the next thing to be considered is the procedure. Substantive or procedural? In substantive due process analysis, the Court will examine the law and which part of it actually violates the fundamental rights of a citizen. In procedural due process analysis, the Court examines how the law is applied in that situation. In order to decide which procedure to use, the Court must first review the intention of the people who wrote and passed the law.

The law authorizing criminal courts to issue a protection order came about because in a lot of domestic violence cases, witnesses were dropping their complaints and cases because they had to return again and again to court to stop the abuse. Because domestic violence tends to increase over time, the abusers were encouraged by the time it took to resolve the cases. Also, there had been numerous reports of threats and violence being made not just to the victims, but also the witnesses, when the abusers were released on bail. Temporary orders of protection for both victims and witnesses are therefore, very important. Also, by authorizing criminal courts to issue protection orders, the legislation allowed families to choose from either the family or criminal courts when seeking help and protection from abuse.

A law whose effects, not purpose, limits the rights of an individual should be directly related to public good. Since protecting the health and safety of the general public is the most important thing that the government should do, when this is put in danger, limiting another individual's rights is allowed by law.

The third step is to prove without a reasonable doubt that the law is unconstitutional. The right to due process is an individual's right of notice and a right to an opportunity to have his side heard. An adversarial evidentiary hearing, as the man wanted, is not a right. Also, the Court decided that the man had no right to question the legality of the protection orders. They were not ordered to punish him but to protect the victims and the witnesses. This is well within the rights of the State and the law allows it to do so.

After reviewing the three steps, the Court came to the conclusion that those two provisions did not violate the Constitution and that in any case, the man had no right to question their legality.

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