2012/07/12

List of constitutional rights

A question I often get is to indicate a comprehensive, authoritative list of constitutional rights. Most legal scholars in the past have declined to offer such a list, saying that it would be infinite, so no listing could ever be adequate. Of course, some have provided partial lists, as James Madison did with the Bill of Rights, which included a catch-all, the Ninth Amendment, for all the other rights not made explicit in the other amendments. Essentially, he was referring people to legal history for the details, but too many judges refuse to acknowledge rights that are not spelled out.

I offer two things that try to identify the rights in more detail. The first is a law review article, Presumption of Non-authority and Unenumerated Rights, that goes into the historical background to find what got lumped into the Ninth. The second is a proposed Civil Rights Act to be introduced in Congress. For the convenience of readers, here is the part of that Act that lists the rights:

a. All rights already recognized in the above titles, and in the Constitution as amended.
b. Due process and efficient remediation
1. General
1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.
2. Fair hearing and decision on the legal merits, with redress for just grievances, including damages, property, or injunctive or declaratory relief.
3. Not to have just remedies made inaccessible or excessively difficult or costly.
4. Mandated testimony of witnesses.
5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.
6. Direct presentation of complaints to a grand jury without the presence of any other government actor without the consent of the grand jury.
7. Standing to privately prosecute a public right without having been injured or expecting personal injury.
8. Not to be subject to retaliation.
9. Not to have admitted any plea or testimony induced by a plea bargain.
10. Not to have any property or asset taken or forfeited without civil or criminal judgment in a trial, with possession presumed to establish title unless proved otherwise.
11. Not to have any right, privilege, or immunity disabled by statute unless one is a minor, which by default shall be any individual under the age of 18 unless the disabilities of minority are extended or reduced by court order.
2. Criminal trials:
1. Indictment by twelve members of a randomly selected grand jury of 23 who elect their foreperson, upon a finding that the court has jurisdiction and that there is sufficient evidence for a trial, except for persons subject to military or militia discipline.
2. Service as prosecutor upon receipt of an indictment by a grand jury, subject only to consolidation by the grand jury if more than one person seeks to prosecute the same offense.
3. Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in criminal cases for which the penalty is more than 90 days.
4. No excessive bail when there is little flight risk.
5. No excessive fines imposed.
6. No  cruel and unusual punishments inflicted.
7. Speedy and public trial before an impartial jury of the state and district previously defined by law, wherein the offense shall have been committed, and to have the location of commitment be deemed where there was concurrence of mens rea and actus reus.
8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.
9. To be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence, but not to have counsel or an attorney imposed on him without his consent.
10. Not to be compelled to be a witness against himself.
11. Not be disabled in the exercise, or deprived, of life, liberty, or property, without due process of law, by unanimous verdict of a jury of twelve.
12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.
13. Unimpeded presentation of all legal argument to the jury, up to the final instructions to the jury, except for argument on a motion in limine that cannot be made without disclosing evidence properly excluded.
14. Unimpeded presentation of all pleadings, alternative instructions, and certified copies of applicable laws and constitutions, to the jury.
15. Not to have a sentence that does not separately disable the exercise of the immunity, and order deprivation of it, within the scope of that disablement
3. Civil trials:
Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in which the amount at issue, including costs, exceeds the equivalent of at least 15.46875 troy ounces of pure silver.
4. Appeals
Appeal from a jury verdict on a writ of error or habeas corpus, according to the rules of the common law in the United States as of 1787, unless the Constitution is amended to provide otherwise.
c. Nonauthority
1. Presumption of nonauthority for any claim to authority, to be strictly proved by an unbroken logical chain of derivation from a constitution.
2. Not to have any government actor exercise a power not delegated, regardless of whether one may be personally injured by such exercise.
3. Not to have government actors exercise powers on the pretext of being "necessary and proper" when they are not just to perform his official duties but to get a desired result beyond such duties.
4. To have delegated powers construed as narrowly, and rights, privileges, or immunities construed as broadly, as the language of the Constitution as meant and understood when ratified permits.
5. Priority docketing of all prerogative writs filed by a any person as demandant in the name of the people with a court of competent jurisdiction and served on the respondant, within three sederunt days, unless the respondant requires more, but not more than 20 calendar days, including but not limited to, demurral, quo warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari, and scire facias, and to have default judgment even if no proof is presented or a hearing is not held.
6. Unimpeded and unpunished communications, including speech, press, and education, except such as instigate or direct a felony, misdemeanor, or tort.
7. Unimpeded assembly and exercise of rights in concert with others.
8. Unimpeded assembly as militia for organizing, training, and response to threats to public safety, subject only to direction by state militia officers during a call-up.
9. Unrestricted keeping and bearing of weapons, equipment, and supplies commonly used by military forces, or suitable for militia, subject only to court order of disablement for being a threat to oneself or others, or to the lawful orders of militia officers during a call-up.
10. Unimpeded and unpunished petition for redress of grievances.
11. Unimpeded devotion or practice of religion, not preferentially supported by public funds, that does not instigate or direct a felony, misdemeanor, or tort.
12. Exclusion of government actors from intrusion into one's real property, body, or use of one's personal property, for search, seizure, or for any other reason, without consent, a declared state of war or emergency threat to public, safety, a warrant supported by an affidavit of probable cause, and just compensation for any losses incurred, for each incident.
d. Supervision of government actors
1. Access to observation and recordation of any government proceeding except trial and grand jury deliberations or their equivalent, or deliberations on matters of security requiring secrecy.
2. Receipt of records of all proceedings, and accounting for all receipts, loans, debts, and expenditures, and reporting thereof, for eventual examination prior to an election in which the issues may be reviewed.
3. Accurate recording, counting, and reporting of all votes cast by eligible voters in any public election with protection from disclosure of how each voted.
4. Access to all information about oneself, and either copies at cost of all documentation or to make one's own copies using one's own equipment.
5. Effective low-cost remedies for getting information about oneself corrected, and use of such information restricted to that for which there is consent by oneself.
f. Not to be subject to meddling without a clear, present, and compelling public need
1. Association and contract to do things not unlawful, including practice of a profession or occupation, marriage, procreation, and acceptance or denial of medical prevention or treatment, except prevention of contagious diseases.
2. Formation, conduct, and revision or dissolution of corporations, partnerships, and other trusts, in which settlor, trustee, and beneficiary are distinct persons who may not be impeded or penalized from directly appearing in any court in such capacities.
3. Not to have some accorded special privileges or protections that favor them over the rest of the people, in ways not essential to the performance of public duties.
4. Travel within, to, and from the United States and any State, territory or locality.
5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.
6. Not to be enslaved or submitted to peonage except as punishment for a crime, but subject to militia, jury, witness, and other public duty.
7. Not to be impeded or punished for voting if one is a citizen and resident on grounds of race, color, creed, previous servitude, gender, age 18 or above, or failure to pay a tax.
8. Custody and care of close relatives who are non sui juris.
9. Not to be neglected or abused while in custody.
10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.
11. Not to be deported without proof that one has not been born or naturalized as a citizen, unless one is born to a person not subject to the allegiance of the United States, such as a foreign diplomat or an invader.
12. Not to be subject to penalty for not doing something, such as not paying a tax, if government agents refuse to allow it to be done, such as not accepting payment of a tax.
13. Not to deny relief from some government action for lack of an appropriation to process the application for relief, or having an official to receive the application, and to fail to recognize the demand for such relief as being granted by default.
14. Not to be required to procreate or to refrain from procreating.
15. Not to have imposed upon one any unwanted belief or expression of devotion or to be pressured into conformity with such.
g. The foregoing list is not exhaustive, and further rights, privileges, and immunities are to be found in the historical record. The rule of expressio unius est exclusio alterius shall not be applied.

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2012/07/09

Diagram of Necessary and Proper Clause

One of the most controversial clauses of the Constitution is Art. I Sec. 8 Cl. 18, which reads:

[The] Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution [in the Government of the United States, or in any Department or Officer thereof].
To keep the Reed-Kellogg diagram size manageable we have removed the words in square brackets [] that aren't essential to the analysis.

There appears to be no grammatical ambiguity in this clause as there is in the Tax/Spend/Welfare Clause previously diagrammed, so interpretation is mainly a matter of finding the original meanings of the words.

The key is the mandate that the laws authorized by this clause must be "necessary and proper". The conjunction "and" means they must satisfy both conditions, so in any case on whether such a power is legitimate, one would need to prove both "necessary" and "proper", not just one.

However, "necessary and proper" are further restricted by the prepositional phrase beginning with "for" that defines the purpose for which the laws must be "necessary and proper", specifically for "carrying into execution ... Powers", a gerund phrase. Therefore, anyone claiming a power under this clause must not only prove it is both "necessary" and "proper" but that it is also "for carrying into execution" a power otherwise delegated or "vested".

The implied power is only of a delegated or vested power found elsewhere in the Constitution, not of another implied power. This clause is not recursive. Only one level of implication from an explicit power is allowed.

What is "necessary"?

In the 1787 legal idiom "necessary" are not just about logical necessity, but practical necessity.

Consider a chain beginning with power A, for which power B is deemed necessary for carrying A into execution, for which power C is deemed necessary for carrying B into execution, and so forth. To make the discussion more concrete, let power A be the power to regulate some kind of interstate commerce, and power B the power to conduct official inspections of items of commerce at a border checkpoint. Strictly speaking, B is not logically necessary unless one inserts the additional premise, "Something may be regulated only if it is inspected by officials." But it is also possible to regulate by voluntary compliance without inspections, or perhaps by having competitors sue one another for noncompliance. So the necessity is practical rather than just logical.

Now in the next step we find a practical necessity, to carry into execution the power to conduct inspections, the power C to hire inspectors. That is a second level of inference. From that point we can move to a power D to pay inspectors, a power E to train inspectors, and a power F to supervise and discipline inspectors. However, all those steps in the chain are tethered to the original power A to regulate commerce.

The problem arises in that the tether may get broken as the chain grows. Persons may be hired to hire persons to hire persons to hire persons, none of whom actually conduct any inspections and thus carry into execution the power to regulate commerce. One can construct similar chains for things like acquiring land or equipment, initially for inspection stations but eventually for its own sake, or for imposing penalties, or for issuing forms, instructions, reports, etc.

If the practical inference were recursive, it would enable the growth of unlimited power, not tethered to the base power, contrary to original intent. Therefore, it is not recursive, and the phrase "for carrying into execution the foregoing powers ..." is a requirement that the "implied" power must always be practically necessary for carrying into execution the base power.

What is "proper"?

 Some means were not considered proper, even if they might be practically necessary. We can identify some ways means may be improper:
  1. They violate a fundamental natural or social right, not just a negative right arising from the non-delegation of a power.
  2. They are not reasonable ways to attain the end.
  3. They do not serve a legitimate public purpose.
  4. They are not done in a way that satisfies due process or public deliberation.
  5. They exceed the bounds of public consent.
One can elaborate on those further, but that is sufficient for now.

Latin roots

Thanks to Rob Natelson for finding a passage in a 1724 English book on legal forms in Latin:
... ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna ... .
with the abbreviations spelled out.

The words necessaria and opportuna are the neuter plural forms of necessarius (necessary) and opportunus (proper). In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. From that we get the strict notion of something being logically or practically necessary, but also subordinate.

The legal English of 1787 was largely derived from Latin and Law French, the languages of law until English was made the standard in English courts in the Proceedings in Courts of Justice Act 1730 (4 Geo II. c. 26). Although English had been allowed in courts since 1362, legal English continued to be dominated by the official use of Latin and Law French, to which one needs to refer to get the original meanings of many terms used in the Constitution.

What is "carrying into execution"?

The term of art "carrying into execution" had a fairly restrictive meaning in 1787. It did not extend to getting a desired outcome, such as compliance by the public with a law authorized by a delegated power. It meant only for an official to perform the duty of his office defined by a law, that is, to make a certain kind of effort. It was well understood and expected in 1787 that laws and enforcement efforts were unlikely to ever have full compliance, and might have very little compliance. That did not mean the official had whatever power he might need or find convenient to get such compliance. If he lacked enough power then he either had to have Congress amend the statute, if that was inadequate, within the Constitution, or amend the Constitution, with concurrence of 3/4 of the states.

So essentially, "carrying into execution" meant only administrative powers to acquire and use tools and resources for, and to remove obstacles to, performing duties. Extending powers under this clause to things that might "affect" commerce is a usurpation, because this clause only authorizes Congress to do things that enable the regulators in the performance of their duties. To extend powers any further would be to remove any limiting principle on the exercise of power under the Commerce Clause, and if "Commerce" is redefined to include all "economic activity", and not just trade in tangible commodities, then Congress would have unlimited power to do anything, which was obviously not intended or understood by the Framers. It would make the rest of the Constitution redundant.

To fix the precedent

To attempt to correct the erroneous line of precedents stemming from McCulloch v. Maryland (1819), the following clarifying amendment is proposed:

Article I Section 8 Clause 18 of this Constitution shall be construed to only include enablement of the completion of duties by duly elected or appointed officials, to make a limited, reasonable effort strictly necessary to exercise an express power narrowly construed, and not to go beyond completion of the duty to do whatever might be deemed convenient to get an outcome or result for which the effort might be made.
The diagram



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2012/07/08

Diagram of Tax/Spend/Welfare Clause

A useful exercise is to diagram the clauses of the U.S. Constitution using the Reed-Kellogg method many of us learned in public school. Here is the diagram for a slightly abbreviated version of the Tax/Spend/Welfare Clause,

[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] to pay the Debts and provide for the common Defence and general Welfare of the United States.
The omitted words are in square brackets [], omitted because they don't contribute much to analysis of the sentence structure, and to keep the size of the diagram small enough (990x480).

The key points are that "to pay and provide" don't modify "Power", but "Taxes", and "for Defense and general Welfare" modify "provide". Each modifying phrase restricts the word it modifies.

The tricky part of the analysis is to recognize that there is a phrase "to be spent" omitted after "Taxes". In the legal jargon of 1787 a tax was almost always raised to be spent for something that was typically specified when the tax was authorized.

To reach the interpretation some seek to give to the Clause, "to pay and provide" would have to modify "Power", and the Clause would have to insert the word "and":
[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] and to pay the Debts and provide for the common Defence and general Welfare of the United States.
The lack of the "and" after "Taxes" is critical, and it shows that "for common Defence and General Welfare" are a restriction on spending, not a delegated power unto themselves.

At the time the Constitution was written, "general" meant "not specific or special", and that "general" is a restriction on "Welfare" makes the Clause a directive that taxes and spending not be done for the benefit of some parts of the country at the expense of others. It was a bar to intentional redistribution.

That interpretation is further emphasized by the second clause in the sentence:
but all Duties, Imposts and Excises shall be uniform throughout the United States;
The diagram

Joseph Story analysis

Supreme Court Justice Justice Joseph Story, Book III, Chapter 14, of his Commentaries on the Constitution of the United States (1833), explains the clause:

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views. The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects, -- the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed. 

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