The Law Vs. Rights: Who Wins?

The concept of one law superseding another, or a law superseding a right, is a complex one. In the US, the Supremacy Clause of the Constitution establishes that the Constitution, federal laws, and treaties made under its authority are the supreme Law of the Land, taking priority over conflicting state laws. Federal preemption means that federal laws supersede state laws, and this has been applied in numerous cases, such as the Voting Rights Act of 1965, where an act of Congress preempted state constitutions. However, it is important to note that federal statutes and treaties must be within the parameters of the Constitution and not violate constitutional limits on federal power, such as the Bill of Rights. While courts can interpret the Constitution, they cannot supersede or violate it. For example, a court order prohibiting a photographer from filming jurors was not considered a violation of the First Amendment right to freedom of the press. In this case, the photographer could appeal to a higher court for interpretation and potential invalidation of the order. The relationship between laws and rights is further complicated by the role of contracts, which are legally binding but may involve the waiving of certain rights. Ultimately, the interplay between laws and rights is a nuanced and context-dependent area of law.

The right to a fair trial

In the United States, the Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime was committed. The accused also has the right to be informed of the nature and cause of the accusation, to confront witnesses against them, to have compulsory process for obtaining witnesses in their favour, and to have the assistance of counsel for their defence. These rights are enshrined in the US Constitution and cannot be superseded by courts or laws.

The presumption of innocence, a fundamental principle of the right to a fair trial, is also undermined by mass surveillance, the use of artificial intelligence to profile people, coercive policing practices, and pre-trial detention. It is the responsibility of the state to prove that someone is guilty, not for the accused to prove their innocence. People should not be coerced into confessing to a crime or to incriminate themselves through abusive interrogation tactics or the threat of enhanced punishment for asserting their fundamental rights.

To uphold the right to a fair trial, special measures may be necessary to give some people a fair chance to present their defence. For example, some people may need an interpreter to understand their rights, while children and vulnerable adults may require additional support to participate effectively in criminal proceedings. Courts must be impartial and independent, and those empowered to determine pretrial detention, the manner and extent of investigation, or to decide on guilt and sentencing must be neutral and make a fair assessment of the facts.

The right to an attorney

The role of an attorney is not just to provide legal representation but also to ensure ethical standards are upheld. For example, attorneys have a duty to prevent their clients from giving perjured information or presenting perjured evidence in court. This duty supersedes their duty of zealous advocacy, and attorneys may be required to stop representing a client if they intend to commit perjury.

While the right to an attorney is a fundamental right, there may be situations where it can be limited or superseded by other laws or circumstances. For instance, in the United States, the right to counsel was not applied to state prosecutions for felony offenses until 1963 and is still not guaranteed for certain misdemeanors. Additionally, the interpretation of when the right to counsel attaches can vary, with some courts holding that it begins at the first formal charging proceeding, while others argue it is when the government's role shifts from investigation to accusation.

In conclusion, the right to an attorney is a critical component of a fair and just legal system. While it is a foundational right, there may be nuances and limitations to its application depending on the jurisdiction and the specific circumstances of a case.

Federal preemption

There are three types of preemption:

• Outright conflict: When a state law directly opposes a federal law.
• Express preemption: When a federal statute explicitly confirms Congress's intention to preempt state law.
• Implied preemption: This can occur in two ways, field preemption or conflict preemption. Field preemption occurs when a federal law regulates an area that a state law also attempts to regulate. Conflict preemption occurs when a federal law directly conflicts with a state law, making it impossible to comply with both.

Courts will typically seek to determine whether a conflict exists between federal and state laws. In cases of implied preemption, courts may try to follow lawmakers' intent and interpret laws in a way that avoids preempting state laws. Similarly, local ordinances will usually preempt state laws, unless a state statute expressly forbids the ordinance.

Examples of federal preemption include the Voting Rights Act, which preempts state constitutions, and FDA regulations, which may preempt state court judgments regarding prescription drugs. In some cases, Congress has preempted all state regulation, such as with medical devices.

The Supremacy Clause

> "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 Bill of Rights

The First Amendment prohibits Congress from making laws that establish a religion or restrict the free exercise of religion, freedom of speech, freedom of the press, the right to assemble, and the right to petition the government. The Second Amendment protects the right of the people to keep and bear arms, and the Third Amendment prevents the government from forcing homeowners to allow soldiers to use their homes. The Fourth Amendment prohibits unreasonable searches and seizures, and the Fifth Amendment provides several protections for people accused of crimes, including the right against self-incrimination and the right to due process. The Sixth Amendment provides additional protections for people accused of crimes, such as the right to a speedy and public trial and the right to an impartial jury.

The Ninth Amendment states that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people. The Tenth Amendment reserves powers to the states or the people that are not delegated to the United States by the Constitution.

It is important to note that while courts can interpret and apply laws, they do not have the power to supersede constitutional rights. However, in certain cases, there may be a practical issue where a defendant believes they have a constitutional right that does not exist.

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