Know Your Rights and Citizenship Status!, Form #10.009
Sovereignty and Freedom Page, Section 6: Private and Natural Rights
Unalienable Rights Course, Form 12.038 (OFFSITE LINK)-SEDM
of Inalienable Rights, Form 10.002 (OFFSITE LINK)-SEDM
Charters of Freedom: The Bill of Rights-by the National Archives
"Public Rights" Doctrine of the U.S. SUpreme Court-Cornell Legal Information Institute
California CODE OF CIVIL PROCEDURE, Section 1866
California CODE OF CIVIL PROCEDURE
When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted.
Freytag v. C.I.R., 501
U.S. 868, 111 S.Ct. 2631 (1991)
“No procedural principle is more
familiar to this Court than that
a constitutional right
may be forfeited in criminal as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdiction
to determine it.”
Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660,
677, 88 L.Ed. 834 (1944); see also
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239,
60 S.Ct. 811, 851-852, 84 L.Ed. 1129 (1940). Forfeiture
FN2 is “not a mere technicality
and *895 is essential to the orderly administration of justice.”
9 C. Wright & A. Miller, Federal Practice and Procedure § 2472,
p. 455 (1971). In the federal judicial system, the rules generally
governing the forfeiture of claims are set forth in
Federal Rules of Criminal Procedure 51 and
Federal Rule of Civil Procedure 46. The Tax Court, which is
not an Article III court, has adopted a rule virtually identical
to the latter,
Tax Court Rule 144. These rules reflect the principle that a
trial on the merits, whether in a civil or criminal case, is the
“main event,” and not simply a “tryout on the road” to appellate
Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508,
53 L.Ed.2d 594 (1977). The very word “review” presupposes that
a litigant's arguments have been raised and considered in the tribunal
of first instance. To abandon that principle is to encourage the
practice of “sandbagging”: suggesting or permitting, for strategic
reasons, that the trial court pursue a certain course, and later-if
the outcome is unfavorable-claiming that the course followed was
The Court uses the term “waive” instead of “forfeit,” see
ante, at 2638-2640. The two are really not the same, although
our cases have so often used them interchangeably that it may
be too late to introduce precision. Waiver, the “intentional
relinquishment or abandonment of a known right or privilege,”
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023, 82 L.Ed. 1461 (1938), is merely one means by which
a forfeiture may occur. Some rights may be forfeited by means
short of waiver, see, e.g.,
Levine v. United States, 362 U.S. 610, 619, 80 S.Ct.
1038, 1044, 4 L.Ed.2d 989 (1960) (right to public trial);
United States v. Bascaro, 742 F.2d 1335, 1365 (CA11 1984)
(right against double jeopardy), cert. denied sub nom.
Hobson v. United States, 472 U.S. 1017, 105 S.Ct. 3476,
87 L.Ed.2d 613 (1985);
United States v. Whitten, 706 F.2d 1000, 1018, n. 7 (CA9
1983) (right to confront adverse witnesses), cert. denied,
465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984), but
others may not, see, e.g., Johnson, supra (right to counsel);
Patton v. United States, 281 U.S. 276, 312, 50 S.Ct.
253, 263, 74 L.Ed. 854 (1930) (right to trial by jury).
A right that cannot be waived cannot be forfeited by other means
(at least in the same proceeding), but the converse is not true.
In this case, petitioners expressly consented to the Special
Trial Judge's role. As far as my analysis is concerned, however,
it would not matter if an even more inadvertent forfeiture were
involved-that is, if petitioners had not even consented but
had merely failed to object in timely fashion. I shall not try
to retain the distinction between waiver and forfeiture throughout
this opinion, since many of the sources I shall be using disregard
The blanket rule that “argument[s]
premised on the Constitution's structural separation of powers [are]
not a matter of personal rights and therefore [are] not waivable,”
Brief for Petitioners 43-44, would erode this cardinal principle
of sound judicial administration. It has no support in principle
or in precedent or in policy.
As to principle: Personal rights that happen to bear upon governmental
structure are no more laden with public interest (and hence inherently
nonwaivable by the individual)**2648 than many other personal rights
one can conceive of. First *896 Amendment free-speech rights, for
example, or the Sixth Amendment right to a trial that is “public,”
provide benefits to the entire society more important than many
structural guarantees; but if the litigant does not assert them
in a timely fashion, he is foreclosed. See, e.g.,
Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S.
424, 432-433, n. 12, 83 S.Ct. 1759, 1764-1765, n. 12, 10 L.Ed.2d
983 (1963) (First Amendment);
Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038,
1044, 4 L.Ed.2d 989 (1960) (Sixth Amendment). Nor it is distinctively
true of structural guarantees that litigants often may undervalue
them. Many criminal defendants, for example, would prefer a trial
from which the press is excluded.
It is true, of course, that a litigant's prior agreement to a judge's
expressed intention to disregard a structural limitation upon his
power cannot have any legitimating effect- i.e., cannot
render that disregard lawful. Even if both litigants not
only agree to, but themselves propose, such a course, the judge
must tell them no. But the question before us here involves the
effect of waiver not ex ante but ex post-its effect
not upon right but upon remedy: Must a judgment already rendered
be set aside because of an alleged structural error to which the
losing party did not properly object? There is no reason in principle
why that should always be so. It will sometimes be so-not, however,
because the error was structural, but because, whether structural
or not, it deprived the federal court of its requisite subject-matter
jurisdiction. Such an error may be raised by a party, and indeed
must be noticed sua sponte by a court, at all points in the
litigation, see, e.g.,
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18,
71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951);
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4
S.Ct. 510, 511, 28 L.Ed. 462 (1884);
Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804).
Since such a jurisdictional defect deprives not only the initial
court but also the appellate court of its power over the case or
controversy, to permit the appellate court to ignore it because
of waiver would be to give the waiver legitimating, as opposed to
merely remedial, effect, i.e., the effect of approving, *897
ex ante, unlawful action by the appellate court itself. That
this, rather than any principle of perpetual remediability of structural
defects, is the basis for the rule of “nonwaivability” of lack of
subject-matter jurisdiction is demonstrated by the fact that a final
judgment cannot be attacked collaterally- i.e., before
a court that does have jurisdiction-on the ground that a
subject-matter jurisdictional limitation (structural or not) was
ignored. See, e.g.,
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702, n. 9, 102 S.Ct. 2099, 2164, n. 9, 72 L.Ed.2d
[Freytag v. C.I.R., 501 U.S. 868,
111 S.Ct. 2631 (1991.)]
Mancusi v. Stubbs, 408 U.S. 204 (1972)
Respondent has challenged the present
second-offender sentence that was imposed upon him by the New York
courts on the ground that his 1964 conviction upon retrial was constitutionally
infirm because he was denied his Sixth and Fourteenth Amendment
right to confront the witness Holm. The Court of Appeals sustained
this contention, relying on this Court's opinion in Barber v. Page,
390 U.S. 719 (1968). [408 U.S. 204, 210]
In Barber, a prospective witness
for the prosecution in an Oklahoma felony trial was incarcerated
in a federal prison in Texas. The court there said:
"We start with the fact that
the State made absolutely no effort to obtain the presence of
Woods at trial other than to ascertain that he was in a federal
prison outside Oklahoma. It must be acknowledged that various
courts and commentators have heretofore assumed that the mere
absence of a witness from the jurisdiction was sufficient ground
for dispensing with confrontation on the theory that `it is
impossible to compel his attendance, because the process of
the trial Court is of no force without the jurisdiction, and
the party desiring his testimony is therefore helpless.' 5 Wigmore,
Evidence 1404 (3d ed. 1940).
"Whatever may have been the accuracy
of that theory at one time, it is clear that at the present
time increased cooperation between the States themselves and
between the States and the Federal Government has largely deprived
it of any continuing validity in the criminal law. For example,
in the case of a prospective witness currently in federal custody,
28 U.S.C. 2241 (c) (5) gives federal courts the power to issue
writs of habeas corpus ad testificandum at the request of state
prosecutorial authorities. [Citations omitted.] In addition,
it is the policy of the United States Bureau of Prisons to permit
federal prisoners to testify in state court criminal proceedings
pursuant to writs of habeas corpus ad testificandum issued out
of state courts. . . .
"In this case the state authorities
made no effort to avail themselves of either of the above alternative
means of seeking to secure Woods' presence at petitioner's [408
U.S. 204, 211] trial." (Footnotes omitted.) Id.,
Because the State had made no attempt
to use one of these methods to obtain the attendance of the witness
at trial, the Court reversed the conviction on that ground without
considering whether the testimony taken at the preliminary hearing
was subject to cross-examination. The Court said:
"Moreover, we would reach the
same result on the facts of this case had petitioner's counsel
actually cross-examined Woods at the preliminary hearing. See
Motes v. United States,
178 U.S. 458 (1900). The right to confrontation is basically
a trial right. It includes both the opportunity to cross-examine
and the occasion for the jury to weigh the demeanor of the witness.
A preliminary hearing is ordinarily a much less searching exploration
into the merits of a case than a trial, simply because its function
is the more limited one of determining whether probable cause
exists to hold the accused for trial. While there may be some
justification for holding that the opportunity for cross-examination
of a witness at a preliminary hearing satisfies the demands
of the confrontation clause where the witness is shown to be
actually unavailable, this is not, as we have pointed out, such
390 U.S., at 725 -726.
In this case, of course, Holm was
not merely absent from the State of Tennessee; he was a permanent
resident of Sweden. Respondent argues that Tennessee might have
obtained Holm as a trial witness by attempting to invoke 28 U.S.C.
1783 (a), which provided as of the time here relevant that:
"A court of the United States
may subpoena, for appearance before it, a citizen or resident
of the [408 U.S. 204, 212] United States who . .
. is beyond the jurisdiction of the United States and whose
testimony in a criminal proceeding is desired by the Attorney
General. . . ." (1958 ed.) (Emphasis supplied.)
We have been cited to no authority
applying this section to permit subpoena by a federal court for
testimony in a state felony trial, and certainly the statute on
its face does not appear to be designed for that purpose.
The Uniform Act to secure the attendance
of witnesses from without a State, the availability of federal writs
of habeas corpus ad testificandum, and the established practice
of the United States Bureau of Prisons to honor state writs of habeas
corpus ad testificandum, all supported the Court's conclusion in
Barber that the State had not met its obligations to make a good-faith
effort to obtain the presence of the witness merely by showing that
he was beyond the boundaries of the prosecuting State. There have
been, however, no corresponding developments in the area of obtaining
witnesses between this country and foreign nations. Upon discovering
that Holm resided in a foreign nation, the State of Tennessee, so
far as this record shows, was powerless to compel his attendance
at the second trial, either through its own process or through established
procedures depending on the voluntary assistance of another government.
Cf. People v. Trunnell, 19 Cal. App. 3d 567, 96 Cal. Rptr. 810 (1971).
We therefore hold that the predicate of unavailability was sufficiently
stronger here than in Barber that a federal habeas court was not
warranted [408 U.S. 204, 213] in upsetting the determination
of the state trial court as to Holm's unavailability. Before it
can be said that Stubbs' constitutional right to confront witnesses
was not infringed, however, the adequacy of Holm's examination at
the first trial must be taken into consideration.
In addition to Barber v. Page, recent
decisions of this Court that have dealt at some length with the
requirements of the Confrontation Clause are California v. Green,
399 U.S. 149 (1970), and Dutton v. Evans,
400 U.S. 74 (1970). The focus of the Court's concern has been
to insure that there "are indicia of reliability which have been
widely viewed as determinative of whether a statement may be placed
before the jury though there is no confrontation of the declarant,"
Dutton v. Evans, supra, at 89, and to "afford the trier of fact
a satisfactory basis for evaluating the truth of the prior statement,"
California v. Green, supra, at 161. It is clear from these statements,
and from numerous prior decisions of this Court, that even though
the witness be unavailable his prior testimony must bear some of
these "indicia of reliability" referred to in Dutton.
At least since the decision of this
Court in Mattox v. United States,
156 U.S. 237 (1895), prior-recorded testimony has been admissible
in appropriate cases. The circumstances surrounding the giving of
Alex Holm's testimony at the 1954 trial were significantly more
conducive to an assurance of reliability than were those obtaining
in Barber v. Page, supra. The 1954 Tennessee proceeding was a trial
of a serious felony on the merits, conducted in a court of record
before a jury, rather than before a magistrate.
3 Stubbs was represented by counsel
[408 U.S. 204, 214] who could and did effectively cross-examine
v. Stubbs, 408 U.S. 204 (1972)]
Slaughter-House Cases, 16
Wall. (U.S.) 36, 21 L.ed. 394
Article 4, section 2 of the United
States Constitution provides that "the citizens of each state shall
be entitled to all privileges and immunities of the citizens of
the several states." The purpose of both these provisions
is identical and the privileges and immunities intended are the
same in each. The privileges and immunities of citizens of
all free governments. They are those which are common to citizens
of the several states under their constitutions and laws by virtue
of their being citizens. Paul v. Virginia, 8 Wall. (U.S.) 168, 19
[Slaughter-House Cases, 16 Wall.
(U.S.) 36, 21 L.ed. 394.]
v. Madison, 5 U.S. 327 (1803) defines rights:
"The very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws, whenever he receives
an injury. One of the first duties of government is to afford
that protection. In Great Britain the king himself is sued in
the respectful form of a petition, and he never fails to comply with
the judgment of his court.
In the 3d vol. of his Commentaries, p. 23, Blackstone states two cases
in which a remedy is afforded by mere operation of law.
“In all other cases,” he says, “it is a general and indisputable
rule, that where there is a legal right, there is also a legal remedy
by suit, or action at law, whenever that right is invaded.”
And afterwards, p. 109, of the same vol. he says,
“I am next to consider such injuries as are cognizable by the court
of the common law. And herein I shall for the present only remark,
that all possible injuries whatsoever, that did not fall within the
exclusive cognizance of either the ecclesiastical, military, or maritime
tribunals, are, for that very reason, within the cognizance of the common
law courts of justice; for it is a settled and invariable principle
in the laws of England, that every right, when withheld, must have a
remedy, and every injury its proper redress.
The government of the United States has been emphatically termed a government
of laws, and not of men. It will certainly cease to deserve this
high appellation, if the laws furnish no remedy for the violation of
a vested legal right.”
v. Madison, 5 U.S. 327 (1803)]
United States v. Conkins,
9 F.3d 1377, 1382 (9th Cir. 1993)
"Due process of
law is violated when the government vindictively attempts to penalize
a person for exercising a protected statutory or constitutional
v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993)]
Schlesinger v. State of Wisconsin, 270 U.S. 230 (1926)
". . .Rights guaranteed by the federal Constitution are not to be so
lightly treated; they are superior to this supposed necessity. The state
is forbidden to deny due process of law or the equal protection of the
laws for any purpose whatsoever..."
[Schlesinger v. State of Wisconsin,
270 U.S. 230 (1926)]
Cooper v. Aaron, 358 U.S. 1 (1958)
“. . .Every state legislator and
executive and judicial officer is solemnly committed by oath taken
pursuant to Art. VI, cl. 3, "to support this Constitution."
“No state legislator or executive
or judicial officer can war against the Constitution without violating
his undertaking to support it.”
v. Aaron, 358 U.S. 1 (1958)]
Butz v. Economou, 438 U.S. 478 (1978)
“. . . a federal official may not
with impunity ignore the limitations which the controlling law has
placed on his powers...”
[. . .]
“. . . the official would not be
excused from liability if he failed to observe statutory or constitutional
limitations on his powers or if his conduct was a manifestly erroneous
application of the statute...”
[. . .]
“. . . federal officials. .
.even when acting pursuant to congressional authorization, are subject
to the restraints imposed by the Federal Constitution. . .”
v. Economou, 438 U.S. 478 (1978)]
Owen v. City of Independence, 445 U.S. 622 (1980)
“. . . Whatever other concerns should
shape a particular official’s actions, certainly one of them should
be the constitutional rights of individuals who will be affected
by his actions. . .”
v. City of Independence, 445 U.S. 622 (1980)]
Frost v. Railroad Commission of the State of California, 271 U.S. 583,
“. . . But the power of the state
[i.e. any government] in that respect is not [271 U.S. 583, 594]
unlimited, and one of the limitations is that it may not impose
conditions which require the relinquishment of constitutional rights.
If the state may compel the surrender of one constitutional right
as a condition of its favor, it may, in like manner, compel a surrender
of all. It is inconceivable that guaranties embedded in the Constitution
of the United States may thus be manipulated out of existence. .
v. Railroad Commission of the State of California, 271 U.S. 583,
West Virginia Bd. of Ed. v Barnett, 319 U.S. 624, 638 (1943)
"The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to life, liberty,
and property, to free speech, a free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to vote; they depend
on the outcome of no elections."
[West Virginia Bd. of Ed. v Barnett,
319 U.S. 624, 638 (1943)]
Brookhart v. Janis, 384 U.S. 1; 86 S.Ct. 1245; 16 L.Ed.2d 314 (1966):
"The question of a waiver of a federally guaranteed constitutional right
is, of course, a federal question controlled by federal law. There
is a presumption against the waiver of constitutional rights, see, e.g.
Glasser v. United STates, 315 U.S. 60, 70-71, 86 L.Ed. 680, 699,
62 S.Ct. 457, and for a waiver to be effective it must be clearly established
that there was "an intentional relinquishment or abandonment of a known
right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 82
L.Ed. 1461, 1466; 58 S.Ct. 1019, 146 A.L.R. 357."
[Brookhart v. Janis,
384 U.S. 1; 86 S.Ct. 1245; 16 L.Ed.2d 314 (1966)]
United States v. Minker, 350 U.S. 179; 76 S.Ct. 281 (1956)
"Where administrative action may result in loss of both property and
life, or of all that makes life worth living, any doubt as to the extent
of power delegated to administrative officials is to be resolved in
citizen's favor, and court must be especially sensitive to the citizen's
rights where proceeding is non-judicial."
States v. Minker, 350 U.S. 179; 76 S.Ct. 281 (1956)]
People of Territory of Guam
v. Fegurgur, 800 F.2d 1470 (9th Cir. 1986):
"It is an unconstitutional deprivation of due process for the government
to penalize a person merely because he has exercised a protected statutory
or constitutional right. United States v. Goodwin,
457 U.S. 368, 372 , 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982)."
[People of Territory of Guam v. Fegurgur, 800 F.2d 1470 (9th Cir. 1986)]
Yick Wo v. Hopkins, 118 U.S. 356 (1885):
"But the fundamental rights to life, liberty, and the pursuit of happiness,
considered as individual possessions are secured by those maxims of
constitutional law which are the monuments showing the victorious progress
of the race in securing to men the blessings of civilization under the
reign of just and equal laws, so that, in the famous language of the
Massachusetts Bill of Rights, the government of the commonwealth 'may
be a government of laws and not of men.' For, the very idea that one
man may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will
of another, seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself."
Wo v. Hopkins, 118 U.S. 356 (1885)]
Miranda v. Arizona, 384 U.S. 436, 491 (1966)
"Where rights secured by the Constitution are involved, there can be no rule making
or legislation which would abrogate them."
v. Arizona, 384 U.S. 436, 491 (1966)]
Brady v. U.S., 397 U.S. 742 (1970)
"Waivers of Constitutional rights not only must be voluntary, but must
be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences."
v. U.S., 397 U.S. 742 (1970)]
United States v. Grunewald, 353 U.S. 391, 425, 77 S. Ct. 963, 984, 1
L. Ed. 2d 931 (1957)
I can think of no special circumstances that would justify use of a
constitutional privilege to discredit or convict a person who asserts
it. The value of constitutional privileges is largely destroyed if persons
can be penalized for relying on them.
States v. Grunewald, 353 U.S. 391, 425, 77 S. Ct. 963, 984, 1 L. Ed.
2d 931 (1957)]
United States v. Babcock, 250 U.S. 328 (1919)
The questions whether the Act of March 3, 1885, authorizes recovery
for horses under any circumstances and under what circumstances it authorizes
recovery for other personal property have long been the subject of controversy
in the Auditing Department and in that of the Comptroller of the Treasury.
See 20 Decisions of the Comptroller 238. But here, we are confronted
with the preliminary inquiry: has Congress conferred upon the Court
of Claims jurisdiction to determine in any case whether recovery may
be had under that statute for an article lost or destroyed? The right
asserted is based upon the provision which declares:
That the proper accounting officers of the Treasury be, and they
are hereby, authorized and directed to examine into, ascertain,
and determine the value of the private property belonging to officers
and enlisted men in the military service of the United States which
has been, or may hereafter be, lost or destroyed in the military
service, under the following circumstances . . .
the amount of such loss so ascertained and determined shall be paid
out of any money in the Treasury not otherwise [250 U.S. 331] appropriated,
and shall be in full for all such loss or damage.
These general rules are
well settled: (1) That the United States, when it creates rights in
individuals against itself, is under no obligation to provide a remedy
through the courts. United States ex rel. Dunlap v. Black, 128 U.S.
40; Ex parte Atocha, 17 Wall. 439; Gordon v. United States, 7 Wall.
188, 195; De Groot v. United States, 5 Wall. 419, 431-433; Comegys v.
Vasse, 1 Pet. 193, 212. (2) That, where a statute creates a right and
provides a special remedy, that remedy is exclusive. Wilder Manufacturing
Co. v. Corn Products Co., 236 U.S. 165, 174-175; Arnson v. Murphy, 109
U.S. 238; Barnet v. National Bank, 98 U.S. 555, 558; Farmers' & Mechanics'
National Bank v. Dearing, 91 U.S. 29, 35. Still, the fact that the right
and the remedy are thus intertwined might not, if the provision stood
alone, require us to hold that the remedy expressly given excludes a
right of review by the Court of Claims, where the decision of the special
tribunal involved no disputed question of fact and the denial of compensation
was rested wholly upon the construction of the act. See Medbury v. United
States, 173 U.S. 492, 198; Parish v. MacVeagh, 214 U.S. 124; McLean
v. United States, 226 U.S. 374; United States v. Laughlin, 249 U.S.
440. But here, Congress has provided:
That any claim which shall be presented and acted on under authority
of this act shall be held as finally determined, and shall never
thereafter be reopened or considered.
These words express clearly the intention to confer upon the Treasury
Department exclusive jurisdiction and to make its decision final. The
case of United States v. Harmon, 147 U.S. 268, strongly relied upon
by claimants, has no application. Compare D. M. Ferry & Co. v. United
States, 85 F. 550, 557.
States v. Babcock, 250 U.S. 328 (1919)]
Gerry Spence - "With Justice
For None" p.95
"The erosion of a nation's concern for life and for individual rights,
has always preceded the intrusion of tyranny."
Madison, Virginia Conv. 1788
"I believe there are more instances of the abridgement of the rights
of the people by the gradual & silent encroachments of those in power
than by violent & sudden usurpations."
John F. Kennedy
"And yet the same revolutionary beliefs for which our forebears fought
are still at issue around the globe--the belief that the rights of man
come not from the generosity of the state, but from the hand of God."
William Blackstone, Commentaries
"For the principal aim of society is to protect individuals in the enjoyment
of those absolute rights, which were vested in them by the immutable
laws of nature; but which could not be preserved in peace without the
mutual assistance and intercourse, which is gained by the institution
of friendly and social communities. Hence it follows, that the first
and primary end of human laws is to maintain and regulate these absolute
rights of individuals."
"By the absolute rights of individuals we mean those which are so in
their primary and strictest sense; such as would belong to their persons
merely in a state of nature, and which every man is entitled to enjoy
whether out of society or in it." - Ibid.
Alexander Hamilton, 23 Feb.
"The sacred rights of mankind are not to be rummaged for, among old
parchments, or musty records. They are written, as with a sun beam,
in the whole volume of human nature, by the hand of the divinity itself;
and can never be erased or obscured by mortal power."
rights found in the Bill of Rights DO NOT apply to U.S. citizens!
Below are a few cites to justify this position:
This is what I found in the
U.S. Codes Annotated, on the 14th amendment:
"All privileges granted to citizen by Amnds 1 to 10 against infringement
by federal government HAVE NOT been absorbed by this amendment as privileges
incident to citizenship of the United States and by this clause protected
against infringement by the states."
Watkins v. Oaklawn Jockey Club. D.C.Ark.1949, 86 F.Supp. 1006, affirmed
183 F.2d 440."
"Rights claimed under Amends. 1 to 8, adopted as restrictions of
the powers of the national government, ARE NOT protected by this clause."
Maxwell v. Dow, Utah 1900, 20 S.Ct. 448, 176 U.S. 601, 44 L.Ed. 597."
"Although it has been vigorously asserted that the rights specified
in the Amends. 1 to 8 are among the privileges and immunities protected
by this clause, and although this view has been defended by many distinguished
jurists, including several justices of the federal Supreme Court, that
[this] court holds otherwise and asserts that it is the character of
the right claimed, whether specified as above or not, that is controlling."
State v. Felch, 1918, 105 A. 23, 92 Vt. 477."
On some specific Bill Of Rights
"It IS NOT one of the privileges or immunities of a citizen of the
United States to be confronted with the witnesses against him in a state
court, and a legislature may provide that a defendant appearing by counsel
may be tried for a misdemeanor in his absence."
People v. Welsh, 1903, 84 N.Y.S. 703, 88 App.Div. 66. See also, People
v. Fish, 1891, 26 N.E. 319, 125 N.Y. 151."
"The exemption from disclosure as a witness of evidence against oneself
guaranteed by Amend. 5, IS NOT one of the privileges or immunities of
a citizen of the United States protected by this clause."
Twining v. New Jersey, N.J. 1908, 29 S.Ct. 14, 211 U.S. 78, 53 L.Ed.
Here's one for all of you that
dislike the new forfeiture laws:
"The exemption from unreasonable searches and seizures IS NOT one of
the privileges and immunities of United States citizen, which this amendment
forbids the states to abridge, and is not an element of due process
of law guaranteed by this amendment against state action."
[Mackey v. Chandler, D.C.S.C. 1957, 152 F.Supp. 579]
Gerald Alan Brown and Charles
Darnell v. United States, No. 96-5107 (Federal Circuit, 1997)
Because monetary damages are not available for a Fourth Amendment violation,
the Court of Federal Claims does not have jurisdiction over a such a
United States v. Mitchell, 463 U.S. at 218; Murray v. United States,
817 F.2d at 1582-83. Thus, even assuming Brown and Darnell's "Fourth
Amendment fraudulent taking" complaints are founded in the Constitution,
the claims are outside the jurisdiction of the Court of Federal Claims.
[Gerald Alan Brown and Charles Darnell v. United States, No. 96-5107
(Federal Circuit, 1997)]
Jones v. State Board of Education of Tennessee Et Al, 397 U.S. 31;90
S. Ct. 779;25 L. Ed. 2d 27
Moreover, it is far too late to suggest that since attendance at a state
university is a "privilege," not a "right," there are no constitutional
barriers to summary withdrawal of the "privilege." Such labeling does
not resolve constitutional questions, as we recently noted in
Shapiro v. Thompson, 394 U.S. 618, 627
n. 6. The doctrine
that a government, state or federal, may not grant a benefit or privilege
on conditions requiring the recipient to relinquish his constitutional
rights is now well established.
E. g., Cafeteria Workers v. McElroy,
367 U.S. 886, 894; Sherbert
v. Verner, 374 U.S. 398, 404;
Speiser v. Randall, 357 U.S. 513, 519-520;
Garrity v. New Jersey, 385 U.S. 493,
499-500; Kwong Hai Chew
v. Colding, 344 U.S. 590, 597-598; [*6]
Frost & Frost Trucking Co.
v. Railroad Comm'n, 271 U.S. 583,
593-594; see Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-1454
(1968); Comment, Another Look at Unconstitutional Conditions, 117 U.
Pa. L. Rev. 144 (1968). As stated in
Homer v. Richmond, 292 F.2d 719, 722:
"One may not have a constitutional right to go to Baghdad, but the Government
may not prohibit one from going there unless by means consonant with
due process of law."
v. State Board of Education of Tennessee Et Al, 397 U.S. 31;90 S. Ct.
779;25 L. Ed. 2d 27 ]
U.S. v. Lee, 106 U.S. 196 (1882)
"Under our system the people, who are there called subjects, are the
sovereign. Their rights, whether collective or individual, are not bound
to give way to a sentiment of loyalty to the person of the monarch.
The citizen here knows no person, however near to those in power, or
however powerful himself, to whom he need yield the rights which the
law secures to him when it is well administered. When he, in one of
the courts of competent jurisdiction, has established his right to property,
[106 U.S. 196, 209] there is no reason why deference to any person,
natural or artificial, not even the United States, should prevent him
from using the means which the law gives him for the protection and
enforcement of that right."
v. Lee, 106 U.S. 196 (1882)]
Copppage v. Kansas,
236 U.S. 1 (1915)- RIGHT TO LABOR
"We are now asked, in effect, to overrule it, and in view of the importance
of the issue, we have reexamined the question from the standpoint of
both reason and authority. As a result, we are constrained to reaffirm
the doctrine there applied. Neither the doctrine nor this application
of it is novel; we will endeavor to restate some of the grounds upon
which it rests. The principle is fundamental and vital. Included
in the right of personal liberty and the right of private property --
partaking of the nature of each -- is the right to make contracts for
the acquisition of property. Chief among such contracts is that of personal
employment, by which labor and other services are exchanged for money
or other forms of property. If this right be struck down or arbitrarily
interfered with, there is a substantial impairment of liberty in the
long established constitutional sense. The right is as essential to
the laborer as to the capitalist, to the poor as to the rich, for the
vast majority of persons have no other honest way to begin to acquire
property save by working for money.
"An interference with this liberty so serious as that now under consideration,
and so disturbing of equality of right, must be deemed to be arbitrary
unless it be supportable as a reasonable exercise of the police power
of the state. But, notwithstanding the strong general presumption in
favor of the validity of state laws, we do not think the statute in
question, as construed and applied in this case, can be sustained as
a legitimate exercise of that power. To avoid possible misunderstanding,
we should here emphasize what has been said before -- that, so far as
its title or enacting clause expresses a purpose to deal with coercion,
compulsion, duress, or other undue influence, we have no present concern
with it, because nothing of that sort is involved in this case. As has
[236 U.S. 15] been many times stated, this Court deals not with moot
cases or abstract questions, but with the concrete case before it.
California v. San Pablo &c; R. Co.,
149 U.S. 308, 314; Richardson v. McChesney,
218 U.S. 487, 492; Missouri, Kan. & Texas
Ry. v. Cade, 233 U.S. 642, 648. We do not mean to say therefore
that a state may not properly exert its police power to prevent coercion
on the part of employers towards employees, or
vice versa. But, in this case, the
Kansas court of last resort has held that Coppage, the plaintiff in
error, is a criminal, punishable with fine or imprisonment under this
statute, simply and merely because, while acting as the representative
of the railroad company, and dealing with Hedges, an employee at will
and a man of full age and understanding, subject to no restraint or
disability, Coppage insisted that Hedges should freely choose whether
he would leave the employ of the company or would agree to refrain from
association with the union while so employed. This construction is,
for all purposes of our jurisdiction, conclusive evidence that the State
of Kansas intends by this legislation to punish conduct such as that
of Coppage, although entirely devoid of any element of coercion, compulsion,
duress, or undue influence, just as certainly as it intends to punish
coercion and the like. But when a party appeals to this Court for the
protection of rights secured to him by the federal Constitution, the
decision is not to depend upon the form of the state law, nor even upon
its declared purpose, but rather upon its operation and effect as applied
and enforced by the state, and upon these matters this Court cannot,
in the proper performance of its duty, yield its judgment to that of
the state court. St. Louis S.W. Ry. v. Arkansas,
235 U.S. 350, 362, and cases cited. Now it seems to us clear that a
statutory provision which is not a legitimate police regulation cannot
be made such by being placed in the same act with a police regulation,
or by being enacted under a title that declares a
[236 U.S. 16] purpose which would
be a proper object for the exercise of that power. "Its true character
cannot be changed by its collocation," as Mr. Justice Grier said in
the Passenger Cases, 7 How. 458.
It is equally clear, we think, that to punish an employer or his agent
for simply proposing certain terms of employment, under circumstances
devoid of coercion, duress, or undue influence, has no reasonable relation
to a declared purpose of repressing coercion, duress, and undue influence.
Nor can a state, by designating as "coercion" conduct which is not such
in truth, render criminal any normal and essentially innocent exercise
of personal liberty or of property rights, for to permit this would
deprive the Fourteenth Amendment of its effective force in this regard.
We, of course, do not intend to attribute to the Legislature or the
courts of Kansas any improper purposes or any want of candor, but only
to emphasize the distinction between the form of the statute and its
effect as applied to the present case."
v. Kansas, 236 U.S. 1 (1915)]
The Court developed, for its own
governance in the cases confessedly within its jurisdiction, a series
of rules under which it has avoided passing upon a large part of
all the constitutional questions pressed upon it for decision. They
1. The Court will not pass upon the
constitutionality of legislation in a friendly, nonadversary, proceeding,
declining because to decide such questions ‘is legitimate only in
the last resort, and as a necessity in the determination of real,
earnest, and vital controversy between individuals. It never was
the thought that, by means of a friendly suit, a party beaten in
the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.’
Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345, 12
S.Ct. 400, 402, 36 L.Ed. 176. Compare
Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067;
Atherton Mills v. Johnston, 259 U.S. 13, 15, 42 S.Ct. 422, 66 L.Ed.
**483 2. The Court will not ‘anticipate
a question of constitutional law in advance of the necessity of
deciding it.’ *347
Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners,
113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899;FN5
Abrams v. Van Schaick, 293 U.S. 188, 55 S.Ct. 135, 79 L.Ed. 278;
Wilshire Oil Co. v. United States, 295 U.S. 100, 55 S.Ct. 673, 79
L.Ed. 1329. ‘It is not the habit of the court to decide questions
of a constitutional nature unless absolutely necessary to a decision
of the case.’
Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 245, 49
E.g., Ex parte
Randolph, 20 Fed.Cas. pages 242, 254, No. 11,558;
Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553, 9 L.Ed.
Trade-Mark Cases, 100 U.S. 82, 96, 25 L.Ed. 550;
Arizona v. California, 283 U.S. 423, 462-464, 51 S.Ct. 522,
75 L.Ed. 1154.
3. The Court will not ‘formulate
a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.’ Liverpool, N.Y. & Phila. Steamship
Co. v. Emigration Commissioners, supra. Compare
Hammond v. Schappi Bus Line, Inc., 275 U.S. 164, 169-172, 48 S.Ct.
66, 72 L.Ed. 218.
4. The Court will not pass upon a
constitutional question although properly presented by the record,
if there is also present some other ground upon which the case may
be disposed of. This rule has found most varied application. Thus,
if a case can be decided on either of two grounds, one involving
a constitutional question, the other a question of statutory construction
or general law, the Court will decide only the latter.
Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191, 29 S.Ct.
451, 53 L.Ed. 753;
Light v. United States, 220 U.S. 523, 538, 31 S.Ct. 485, 55 L.Ed.
570. Appeals from the highest court of a state challenging its
decision of a question under the Federal Constitution are frequently
dismissed because the judgment can be sustained on an independent
Berea College v. Kentucky, 211 U.S. 45, 53, 29 S.Ct. 33, 53 L.Ed.
5. The Court will not pass upon the
validity of a statute upon complaint of one who fails to show that
he is injured by its operation.FN6
Tyler v. Judges, etc., 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252;
Hendrick v. Maryland, 235 U.S. 610, 621, 35 S.Ct. 140, 59 L.Ed.
385. Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks
a personal or property right. Thus, the challenge by a public official
interested only in the performance of his official duty will not
Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 99, 100, 51
S.Ct. 392, 75 L.Ed. 861. In
Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499,
the Court affirmed the dismissal of a suit brought by a citizen
who sought to have the Nineteenth Amendment declared unconstitutional.
Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078,
the challenge of the federal Maternity Act was not entertained although
made by the commonwealth on behalf of all its citizens.
Hatch v. Reardon, 204 U.S. 152, 160, 161, 27 S.Ct. 188, 51 L.Ed.
415, 9 Ann.Cas. 736;
Corporation Commission v. Lowe, 281 U.S. 431, 438, 50 S.Ct.
397, 74 L.Ed. 945;
Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434,
66 L.Ed. 852;
Sprout v. South Bend, 277 U.S. 163, 167, 48 S.Ct. 502, 72 L.Ed.
833, 62 A.L.R. 45;
Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535, 547,
54 S.Ct. 830, 78 L.Ed. 1411.
6. The Court will not pass
upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.FN7
Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 8 S.Ct.
631, 31 L.Ed. 527;
Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411, 412, 37 S.Ct.
609, 61 L.Ed. 1229;
St. Louis Malleable Casting Co. v. Prendergast Construction Co.,
260 U.S. 469, 43 S.Ct. 178, 67 L.Ed. 351.
Electric Co. v. Dow, 166 U.S. 489, 17 S.Ct. 645, 41 L.Ed. 1088;
Pierce v. Somerset Ry., 171 U.S. 641, 648, 19 S.Ct. 64, 43 L.Ed.
Leonard v. Vicksburg, etc., R. Co., 198 U.S. 416, 422, 25 S.Ct.
750, 49 L.Ed. 1108.
7. ‘When the validity of an act of
the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this
Court will first ascertain whether a construction of the statute
is fairly possible by which the question may be avoided.’**484
Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed.
United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 408,
29 S.Ct. 527, 53 L.Ed. 836;
United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658,
60 L.Ed. 1061, Ann.Cas.1917D, 854;
Baender v. Barnett, 255 U.S. 224, 41 S.Ct. 271, 65 L.Ed. 597;
Texas v. Eastern Texas R. Co., 258 U.S. 204, 217, 42 S.Ct. 281,
66 L.Ed. 566;
Panama R. Co. v. Johnson, 264 U.S. 375, 390, 44 S.Ct. 391, 68
Linder v. United States, 268 U.S. 5, 17, 18, 45 S.Ct. 446, 69
L.Ed. 819, 39 A.L.R. 229;
Missouri Pacific R. Co. v. Boone, 270 U.S. 466, 471, 472, 46
S.Ct. 341, 70 L.Ed. 688;
Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346,
48 S.Ct. 194, 72 L.Ed. 303;
Blodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594, 48 S.Ct.
105, 72 L.Ed. 206;
Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed.
851, 61 A.L.R. 906;
Interstate Commerce Commission v. Oregon-Washington R. & N.
Co., 288 U.S. 14, 40, 53 S.Ct. 266, 77 L.Ed. 588.
of Dallas v Mitchell, 245 S.W. 944
"The rights of the
individuals are restricted only to the extent that they have been voluntarily
surrendered by the citizenship to the agencies of government."
[City of Dallas v Mitchell,
245 S.W. 944]