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Constitutions, Statutes,
and Regulations. What's the Difference?
Our understanding of the Law in New York is that there are at least three levels each gaining their authority from the greater law. I have given them names to help distinguish their relationship Subordinate is derived from Superior, which is derived from Supreme.
First is Supreme Law, the New York Constitution ratified by the people
Second is Superior Law, Statutory Law constructed by the legislature, subject to the NY and US Constitutions.
Third is Subordinate Law, regulation, promulgated by statutory directive of the Legislature subject to the NY and US Constitutions.
Where do Rights of Families Originate?
The U.S. Declaration of Independence declared God to be the Creator of mankind and the giver of man’s rights. “When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are, life, liberty, and the pursuit of happiness;” (No KING but KING JESUS was often heard during the American Revolution.)
NYS’s first Constitution of 1777 included the above U. S. Declaration of Independence and the following statement:
“By virtue of which several acts, declarations, and proceedings mentioned and contained in the afore-cited resolves or resolutions of the general Congress of the United American States, and of the congresses or conventions of this State, all power whatever therein hath reverted to the people thereof,…”
NYS’s present Constitution’s preamble is set in the bedrock foundation of the first New York State Constitution Preamble of 1777: “That no authority shall , on any pretense whatever, be exercised over the people of members of this state, but such as shall be derived from and granted by them.”
Are Principles of Freedom Timeless?
Circa 1800 – “each parent acting in his individual capacity, and all the people co-operating heartily in the performance of the parental duty to educate his children; a duty which Chancellor Kent [Then Chief Justice of New York] has called a sacred trust given to parents by their Creator, and a right which they have by the law of nature.” Revised record of the Constitutional Convention of the State of New York, May 8, 1894, to September 29, 1894.
Circa 1900 – “Thus the committee, by stating in their report that the schools are to be provided for those children who are not otherwise provided for, recognizes the right of parents to educate their children, for it is not possible to imagine that the children not educated in the public schools can be otherwise educated or have their education otherwise provided for them by their parents. The committee could not question that right with any hope of assent from us. It is a right superior in the parents to that of any other person, superior to any right that might be asserted by the State or any other aggregation of persons.” Revised record of the Constitutional Convention of the State of New York, May 8, 1894, to September 29, 1894.
2000 – “Our cases leave no doubt that parents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest–absent exceptional circumstances–in doing so without the undue interference of strangers to them and to their child. Moreover, and critical in this case, our cases applying this principle have explained that with this constitutional liberty comes a presumption (albeit a rebuttable one) that ‘natural bonds of affection lead parents to act in the best interests of their children.’” Comments in one of the dissenting opinions in Troxel v. Granville.
How Are Our Rights and Liberties Protected?
US Constitution.
“We the people of these United States …. 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.”
NYS’s first and last Constitutions:
“… and this convention hath by their suffrages and free choice been appointed, and among other things authorized to institute and establish such a government as they shall deem best calculated to secure the rights and liberties of the good people of this State, most conducive of the happiness and safety of their constituents in particular, and of America in general.”
I. “People the only source of authority.” Charles. Z. Lincoln “This convention, therefore, in the name and by the authority of the good people of this State, DOTH ORDAIN, DETERMINE, and DECLARE that no authority shall, on any presence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them.” First New York State Constitution (1777).
The above principles are summed up in the current preamble, which states: “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.”
Is the Legislature’s Power Limited?
1. Biblical: Throughout the Bible God raises up and puts down whomever He
chooses. Gen. – Rev. Daniel 2:20-22; 3:28; 5:18-21; Matt.
21:23;22:18-21; Mark 11:28;12:14-17; Luke 20:2,20-26;
2. Civil documentation / records:
The courts:
“[W]hat has happened is those responsible have made an expedient
selection of the temporary noteholders to bear an extraordinary burden.
The invidious consequences may not be justified by fugitive recourse to
the police power of the State or to any other constitutional power to
displace inconvenient but intentionally protective constitutional
limitations.”40 N.Y.2d at 736. Near the close of its opinion in this
case on legislative action during a financial crisis in New York City, the
court emphasized the role of courts in enforcing the constitution:
“Emergencies and the police power, although they may modify their
applications, do not suspend constitutional principles. It is not merely a
matter of application to interpret the words of the Constitution and
obligations issued subject to the Constitution to mean exactly the
opposite of what they say. . . . The clause and the constitutional mandate
have no office except when their enforcement is inconvenient. A neutral
court worthy of its status cannot do less than hold what is so evident.”
40 N.Y.2d at 740-41. As it turned out, the court’s decision did not
cause nearly the financial upset some had feared. New York City recovered,
and the court had established, once again, its willingness to police
legislative behavior and safeguard constitutional principles.
NYS Constitution:
Sec. 14. “Such parts of the common law, and of the acts of the
legislature of the colony of New York, as together did form the law of the
said colony, on the nineteenth day of April, one thousand seven hundred
seventy-five, and the resolutions of the congress of the said colony, and
of the convention of the State of New York, in force on the twentieth day
of April, one thousand seven hundred seventy-seven, which have not since
expired, or been repealed or altered; and such acts of the legislature of
this state as are now in force, shall be and continue the law of this
state, subject to such alterations as the legislature shall make
concerning the same. But all such parts of the common law, and such of the
said acts, or parts thereof, as are repugnant to this constitution, are
hereby abrogated.”
Is There an Explicit or Implicit Protection
for the Right of Parents to Direct the Upbringing of Their Children?
Comment of a member of the Constitutional Convention on desiring the
inclusion of an amendment to Section I of Article XI (in the Education
Law): “It would seem, therefore, that since the right of the parent to
direct the education of the child is undeniable, and is meant to be
conceded here, that it is wiser to express it in the Constitution than to
leave it unexpressed, and, therefore, capable in the near future of denial
or controversy.”
NYS Constitution Committee of 1894, on why that amendment was not
included:
“The section, as it stands here, in no way interferes, directly or by
implication, with the sacred right of the parent and the family first to
educate their children if they wish to do so. It simply says that the
State of New York, as a fundamental part of its policy toward all of its
inhabitants, shall provide for a system of schools wherein if required —
for those words, in my opinion, are fairly implied — all the children of
the State may be educated; and that, of course, means if required by the
parent.” Frederick Holls, Chairman of the Committee on Education of the
NY Constitutional Convention of 1894, which wrote Section I, Article XI
(then IX) regarding the common [public] schools.
Is the Regent’s Power Limited?
Sec. 207. Legislative power. “Subject and in conformity to the
constitution and laws of the state, the regents shall exercise legislative
functions concerning the educational system of the state, determine its
educational policies . . . ”
Note that the Regents/Commissioner cannot even increase the Compulsory
Attendance age without an act of the legislature. Yet they created the
Commissioner’s Regulations (CR100.10) without any specific act of the NY
legislature. Under current regulations, parents in New York must virtually
reapply for licensing/registration each year for each child. A law in
1948, directing the Commissioner to promulgate regulations for private
schools was declared unconstitutional because it did not delimit the field
of action. How then can CR100.10 be valid without a specific act of the
legislature delimiting the field of action for the Regents and the
Commissioner in relation to parent directed education?
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