Originalism does not support social conservative agenda

We often get the argument that rights have to be explicitly listed (enumerated) or at least mentioned to be judicially enforceable. Justice William O. Douglas, in Doe V. Bolton,  in his concurring opinion in the companion case stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."

Not just obviously, but obviously wrong. The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Suppose none of the rights in the first eight amendments were enumerated there. Would none of them be "judicially enforceable"? Of course not. Those rights (except for the twenty dollar rule of the Seventh) pre-existed the Constitution, and would be as judicially enforceable as they are when listed. So where would we find them? The same places as the Founders did when they compiled them. In the pages of court cases and legal commentaries. And that is also where one can look to find the additional rights referenced in the Ninth, which include all the rights that are listed. That is where I looked to come up with a more comprehensive list, at http://constitutionalism.blogspot.com/2016/05/immunitates.html , where I call them "immunities", because they are restrictions on delegated powers, as distinct from "privileges", which come from government. A casual reading of them should identify many that are familiar. I also composed a Civil Rights act that would make the explicit.

Civil Rights Act

113th Congress

1st Session

S. ____

To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.


January 25, 2013

Mr. ROLAND of Texas introduced the following bill; which
was referred to the Judiciary Committee.


To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.

Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,


This Act may be cited as the 'Civil Rights Act of 2013'.


1. The Congress finds that it has comminatory and punitive
powers over government actors, including:

a. Military personnel under U.S. Const. Article I
Section 8 Clause 14.

b. Militia personnel under U.S. Const. Article I
Section 8 Clause 16.

c. Civil officers, their subordinates and agents, of
all branches and departments of the government of the
United States under U.S. Const. Article II Section 4.

d. Civil officers, their subordinates and agents, of
all branches, departments, and subdivisions of the
governments of the States of United States under the
amendment to the U.S. Const. proposed in 1866 and
presumed ratified in 1868.

2. The Congress finds that it has comminatory and punitive
powers over such government actors, expressed in the U.S.
Constitution as "treason, bribery, and other high crimes and
misdemeanors", includes:

a. Common law crimes established in the territory of
what would become the United States as of 1787.

b. Offenses inconsistent with the duties of
government actors, including offenses of the kind
subject to court-martial under the Uniform Code of
Military Justice as of the date of enactment hereof, such

1. Dereliction of duty, bribery, yielding to
intimidation, or bias.

2. Insubordination, failure to obey a lawful order of
a superior, or to comply with a lawful statute or

3. Perjury, fraud, or conduct unbecoming.

4. Abuse of power, tending to the infringement of the
rights of any person.

3. The Congress finds that it has power, under U.S. Const.
Article III Section 2 Clause 2, to establish jurisdictions
for civil causes of action among private parties of diverse
residency or citizenship in the courts of the United States.


Statutes codified in 18 USC Chapter 13 and in 42 USC
Chapter 21 are hereby amended as follows:

1. All offenses and remedies under these titles shall be
equally applicable to government actors of both the United
States and the States of the United States, except that
impeachment and removal by Congress shall apply only to
United States actors whose appointments are subject to
congressional consent.

2. Prosecution of a criminal case in the courts of the
United States shall be conducted by a private person
appointed by a duly met grand jury who has not served as a
government actor of the United States in the preceding year,
unless no such person can be found, in which case a
government actor may prosecute.

3. Prosecution of a civil case in the courts of the United
States shall be conducted only by a private person who has
not served as a government actor of the United States in the
preceding six months.

4. Prevailing private prosecutions, criminal or civil,
shall be entitled to reasonable damages, fees, and costs in
an amount not less than the value equivalent to one
terajoule of electric energy, for the trial and each level
of appeal, payable from the assets of the losing level,
branch, and department of government, United States or

5. The rights of persons the infringement of which shall
provide a basis for a criminal or civil prosecution shall
include, but not be limited to, the following:

a. All rights already established in the above

b. Due process

1. General

1. Due notice of time, place, manner, parties, and
subject of any proceeding with sufficient time to

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 or expecting personal injury.

8. Not to be subject to retaliation.

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 in
criminal cases for which the penalty is more than 90

4. No excessive bail when there is little flight

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

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

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

14. Unimpeded presentation of alternative
instructions 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

3. Civil trials:

Trial by a randomly selected jury of twelve in which
the amount at issue, including costs, exceeds the
equivalent of at least 15.46875 troy ounces of pure

4. Appeals

Appeal from a jury verdict only 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

10. Unimpeded and unpunished petition for redress of

11. Unimpeded devotion or practice of religion, not
preferentially supported by public funds, that does
not instigate or direct a felony, misdemeanor, or

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

3. 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.

f. Other

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

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

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.
Persons whose rights have been violated within the
preceding 20 years from enactment hereof shall have standing
to seek relief under its provisions.

Older victims of past abuse shall have their cases docketed
ahead of younger persons to allow for them to receive
redress while they remain alive.
That would make them enforceable under the 14th Amendment without a new constitutional amendment.
This recognizes that people have a right to do, or not do, anything for which there is not a constitutional delegated power to restrict.
Now these would be rights with respect to the U.S. Congress. What about rights with respect to state legislatures? State constitutions delegate powers that often go beyond federal powers, especially general "police powers" to legislate for the health, safety, and morals of the people. I would not allow powers legislated by the states that exceed those delegated explicitly, on the grounds that such delegation of police powers is "void for vagueness". In general, I would recognize the above immunities as applying equally to the states. 
So are these "fundamental" inquiring strict scrutiny? Yes.
The Fifth Circuit, in Roe v. Wade, correctly found the Texas statute unconstitutional, on grounds of a Ninth Amendment right to "privacy", which is a one-word way of saying, the right to be left alone, which is a summary of the principle that constitutional rights are immunities from the application of undelegated powers. The Fifth Circuit got that right as well. But when it was taken up by the U.S. Supreme Court, that was determined to extend the right nationally, instead of simply copying the opinion of the Fifth Circuit as its own, the nine U.S. justices mangled all logic trying to find a way to avoid finding the right in the Ninth, with Justice William O. Douglas opining as above. That opinion was a monument to judicial incompetence. For an analysis see https://en.wikipedia.org/wiki/Roe_v._Wade .

The 14th Amendment made all of the Bill of Rights "judicially enforceable" in federal courts. That includes the 9th and 10th amendments. So how does that bear on a case like Roe v. Wade? The problem for application of the principles of the 9th and 10th amendments to the states is the "police powers" doctrine, under which states assert a general power to enact all legislation the serves the "health, safety, morals, and good order" of the state. That is a very broad delegation of power, enough to override every other provision of the state constitution. So if we apply the principles of the 9th and 10th amendments to the states, police powers have to go. They are far too broad to be compatible with those principles. What that is saying is that if a state wants to punish a provider of abortion, then it needs a provision in its constitution that explicitly delegates the power to pass and enforce such legislation. No more broad powers that the legislature has discretion to use without limit. That means, applying the 10th Amendment, powers not expressly delegated to the state are reserved to the people, and that state powers have to be "enumerated". So it is not enough to pass a statute. A state has to also amend its constitution. Now that doesn't necessarily fix everything. The statute could still be found to be unconstitutional on other federal grounds, as the opinions of the U.S. Supreme Court tried to do. But it would reframe the terms of debate.

Should state legislatures be able to pass anything "the people want" without a constitutional amendment? How does anyone know the statutes being passed by state legislatures are what the people want? General police powers would permit, for example, the legislature to pass a statute that would declare all democrats to be outlaws, enabling anyone to kill one with impunity. That might pass the legislature, but do the people really want that? Introduce an amendment, which has to be ratified by the people, and see if they will do it. I hopefully expect they would not. Legislatures do not do what the people want. They do what their immediate circle of acquaintances want. It might pass 14th Amendment scrutiny, since it is not applying the statute unequally, or using the coercive powers of the state in violation of "equal protection". But I would expect the Supreme Court to find it to be an equal protection violation.
When it comes to same-sex marriage, it is a profound misreading of the decision in Obergefell v. Hodges to say it "redefined marriage". It did no such thing. It found that if the state licenses one kind of marriage, it has to license all kinds. A state license does not define anything. All one has to do to avoid the appearance of that is for the state not to license any marriages. There is no need for it to do so, or to license any other kind of partnership. This is a fundamental failure to distinguish between a license and a practice. People are going to do it whether they are licensed or not. A license won't make any difference. As for prohibiting the activity, people are going to do it whether it is legal or not. Law is not a competent way to try to regulate private behavior. 
Make it illegal to "desecrate" the flag? Get a clue. Burning a flag is not "desecrating" it. It is the prescribed method of disposal of a flag that has become "soiled". Burning one is a way of protesting that is has become soiled by some government action. It is an act of respect for the country, not of rejection of it. It is complaint of some government abuse. 
One could go on listing social conservative demands, but every one of them is a misunderstanding of constitutional principles. Social conservatives mangle the Constitution almost as badly as progressives do.


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