Rights defined

Authorities on rights as property-SEDM

Proof that “Publici Juris”/Public Rights Include the ENTIRE Civil Code-SEDM

PDF Know Your Rights and Citizenship Status!, Form #10.009 (OFFSITE LINK) -SEDM.  Member Subscription form

PDF Report of the Commission on Unalienable Rights, Form #11.119(OFFSITE LINK) -SEDM.

PDF Legal Remedies that Protect Private Rights Course, Form #12.019 (OFFSITE LINK) -SEDM.  Member Subscription form

Sovereignty and Freedom Page, Section 6: Private and Natural Rights

PDF Unalienable Rights Course, Form 12.038 (OFFSITE LINK)-SEDM

PDF Enumeration of Inalienable Rights, Form 10.002 (OFFSITE LINK)-SEDM

PDF How You Lose Constitutional or Natural Rights, Form 10.015 (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 Section 1866.

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 52(b) 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 review. Cf. 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 reversible error.

FN2. 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 it.

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 492 (1982).

[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., at 723-724.

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 a case." 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. 2  

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 prosecution witnesses.

[Mancusi 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 L.ed. 357;

[Slaughter-House Cases, 16 Wall. (U.S.) 36, 21 L.ed. 394.]

Marbury 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.”

[Marbury 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 right."

[United States 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.”

[Cooper 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. . .”

[Butz 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. . .”

[Owen v. City of Independence, 445 U.S. 622 (1980)]

Frost v. Railroad Commission of the State of California, 271 U.S. 583, 594 (1926)

“. . . 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. . .”

[Frost v. Railroad Commission of the State of California, 271 U.S. 583, 594 (1926)]

[EDITORIAL: Bundling RIGHTS with PRIVILEGES so that when you ask for something from the government, you lose rights, is called "Weaponization of Governemnt". This process is described in:

Family Guardian Disclaimer, Section 4.30: Weaponization of Government

By way of example with USA Passports, they try to bundle the PRIVILEGE of protection abroad with the RIGHT to conduct interstate and intrastate commerce and be left alone (justice). The right to conduct interstate and intrastate commerce and to be left alone are the only asked for by getting a passport and they cost nothing to deliver, so can't be charged for or made a condition of "allegiance". These are rights, not privileges. They bundle "protection abroad" with the passport and that is a privilege, but the applicant isn't asking for the BUNDLED "privilege", only the RIGHT portion.

Per the above cite, bundling privileges (protection abroad) with rights (commerce and justce) in order to destroy rights is forbidden by the SCOTUS "unconstitutional conditions" doctrine.The above case is the origin of the unconstitutional conditions doctrine, in fact.]

Frost v. Railroad Commission of the State of California, 271 U.S. 583, 594 (1926)

“It is not open to question that one who has acquired rights of property necessarily based upon a statute may not attack that statute as unconstitutional, for he cannot both assail it and rely upon it in the same proceeding. *528 Hurley v. Commission of Fisheries, 257 U.S. 223, 225, 42 S.Ct. 83, 66 L.Ed. 206.

[Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235 (U.S., 1929)]

[EDITORIAL: By "acquired rights of property", the court is talking about accepting PUBLIC privileges or "benefits", which are PUBLIC property. Privileges conveyed by civil statutes are PROPERTY. Receipt of said PUBLIC property essentially causes you to surrender your status as a CONSTITUTIONAL "person" protected by the Bill of [PRIVATE] Rights and exchange that PRIVATE status for a a PUBLIC civil statutory status [Form #13.008] that is a fiction of law, a creation of Congress, and therefore PROPERTY of Congress. This is the MAIN mechanism by which governments acquire [meaning PROCURE] the right to regulate you as a Merchant under the U.C.C.: Because you are in VOLUNTARY possession of PUBLIC property that you asked for. That right to regulate INCLUDES the right to tax.

HOWEVER, the acquisition of such PUBLIC property and PUBLIC rights must be done LAWFULLY, which means it must occur within the EXCLUSIVE legislative jurisdiction of the entity legislatively granting the privilege. If it is done EXTRATERRITORIALLY in a legislatively foreign state, such as a state of the Union, it becomes an unconstitutional INVASION in violation of Article 4, Section 4 of the constitution. This is covered in:

  1. License Tax Cases, 72 U.S. 462 (1866)
  2. Sources of Extraterritorial Jurisdiction, SEDM
  3. Administrative State: Tactics and Defenses, Form #12.041

Like Esau, who exchanged his birthright for a bowl of pottage in the Bible in Gen. 25, you SOLD your FREEDOM for government privileges. By doing so, you invited the CURSE direct from God documented below not unlike the CURSE upon Esau:

How Scoundrels Corrupted Our Republican Form of Government, Family Guardian Fellowship]

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." 

[United 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." 

[Yick 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."   

[Miranda v. Arizona,  384 U.S. 436, 491 (1966)]

[EDITORIAL: Rules=regulations. Legislation=civil statutes. The unavoidable inference is that you can't be subject to civil statutes of the regulations that implement them if you retain your constitutional rights and never quote or invoke them as a remedy. This is exhaustively explored in:

Why Statutory Civil Law is Law for Government and Not Private Persons, Form #05.037 (OFFSITE LINK) ]

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."

[Brady 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.

[United 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 . . .

and that

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.

[United 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 (1765)

"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. 1775

"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." 

EDITORIAL NOTE:  Constitutional 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 amendments:

"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. 97."

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 violation. See 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."

[Jones 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."

[U.S. 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."

[Copppage v. Kansas, 236 U.S. 1 (1915)]

PDF Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466(1936)

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 are:

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. 814.

**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 L.Ed. 482.

FN5 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. 773; 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 state ground. Berea College v. Kentucky, 211 U.S. 45, 53, 29 S.Ct. 33, 53 L.Ed. 81.

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 *348 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 be entertained. 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. In 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.

FN6 E.g., 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.

FN7 Compare 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. 316; 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. 598.FN8

FN8 E.g., 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 L.Ed. 748; 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.

[Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936)]

City 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]