Mock Constitution
Draft/Comments Phase
(What is this?)
Index
Preamble
Article I: Declaration of Rights
Article II: Distribution of
Powers of Government
Article III: Legislative Branch
Article IV: Representation
Article V: Executive Branch
Article VI: Judicial Branch
Article VII: Suffrage and Elections
Article VIII: Taxation and
Debt Limitation
Article IX: Local Government
Article X: Education
Article XI: Public Officers
Article XII: Impeachment
Article XIII: Amending the Constitution
Article XIV: Transition Schedule
Entire Draft
In order that the great, general, and essential principles of liberty and free government may be recognized and established, we determine:
Section 1. Equality of rights.
All persons are equally free and independent; they are endowed by their Creator with certain inalienable rights; and among these are life, liberty, and the pursuit of happiness; every person enjoys the right of privacy, which shall remain inviolate; and no person may be deprived of these rights without due process of law nor be denied the equal protection of the laws.
Section 2. People source of power.
All political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient. The people have the right of reasonable access to the meetings of all public bodies in this State and to the official writings of all public officials and employees.
Section 3. Religious freedom.
No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof; no preference shall be given by law to any religious sect, society, denomination, or mode of worship; no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, and other rates for building or repairing any place of worship, or for maintaining any minister or ministry; no religious test shall be required as a qualification to any office of public trust under this state; and the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his or her religious principles.
Section 4. Freedom of speech and press.
The freedom of speech or of the press shall not be curtailed or restrained; and any person may speak, write, and publish his or her sentiments, being responsible for the abuse of that freedom.
Section 5. Unreasonable search and seizure; search warrants.
The people shall be secure in their persons, houses, papers, and possessions from unreasonable search or seizure, and against the unreasonable interception of private communications by any means, and no warrants shall be issued to search any place or to seize any person or thing without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Forfeiture of property thus seized shall not be kept by or accrue to the benefit of the seizor unless the property-owner is convicted of the crime which resulted in the original seizure.
Section 6. Rights of persons in criminal prosecutions generally; self incrimination; due process of law; right to speedy, public trial; change of venue.
In all criminal prosecutions, the accused has a right to the effective assistance of counsel paid for by the state in cases of indigency in any prosecution in which the defendant faces the possibility of imprisonment for six months or more, before, during, and after trial in cases of appeal, and to be heard by himself or herself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; to testify in all cases, in his or her own behalf, if he or she elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and not to be compelled to give evidence against himself or herself, nor be deprived of life, liberty, or property, except by due process of law; but the legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefore; provided that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement.Every criminal defendant in any felony prosecution shall have the right of access to the latest court-accepted, forensic testing at trial, and afterward, on appeal of any conviction of a felony involving the death penalty or an effective sentence of life imprisonment. In cases of indigency, the state shall pay for the testing
Section 6.01. Basic rights for crime victims.
(a) Crime victims, as defined by law, or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when authorized, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the person accused of committing the crime.
(b) Nothing herein or in any enabling statute pursuant to this section shall be construed as creating a cause of action against the state or any of its agencies, officials, employees, or political subdivisions. The legislature may from time to time enact legislation to carry out and implement this section.
Section 7. Accusation, arrest and detention; punishment limited to laws established prior to offense.
No person shall be accused or arrested, or detained, except in cases ascertained by law, and according to the form which the same has prescribed; and no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied.
Section 8. Proceeding against person by information; grand jury not required in misdemeanor cases.
No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the militia when in actual service, or when assembled under arms as a military organization, or, by leave of the court, for misfeasance, misdemeanor, extortion and oppression in office, otherwise than is provided in the Constitution; provided, that in cases of misdemeanor, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before such other inferior courts as may by law be established. In all felony cases, except those punishable by capital punishment, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings in such manner as may be provided by law if the defendant, after having had the advice of counsel of his or her choice or in the event he or she is unable to employ counsel, the advice of counsel which must be appointed by the court and paid for by the state, makes known in open court to a judge of a court having jurisdiction of the offense that he or she desires to plead guilty, provided, however, the defendant cannot plead guilty within fifteen days after his or her arrest.
Section 9. Double jeopardy; discharge of juries from cases.
No person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury.
Section 10. Right to prosecute civil cases.
No person shall be barred from prosecuting or defending before any tribunal in this state, by himself or herself or counsel, any civil cause to which he or she is a party.
Section 11. Right to trial by jury.
The right of trial by jury shall remain inviolate, and no question of fact decided by a jury shall be reexamined in any court, other than according to the rules of the common law.
Section 12. Slavery prohibited, involuntary servitude.
No form of slavery shall exist in this state. There
shall not be any involuntary servitude, other than for the punishment of crime, of which the party shall have been duly convicted.
Section 13. Courts to be open; remedies for all injuries; impartiality of justice; sovereign immunity.
All courts shall be open; and every person shall enjoy the equal protection of the laws; and for any injury done him or her, in his or her lands, goods, person, or reputation; and shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.
Section 14. Excessive fines; cruel or unusual punishment.
Excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.
Section 15. Right to bail; excessive bail.
All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and excessive bail shall not in any case be required.
Section 16. Suspension of habeas corpus.
The right of the writ of habeas corpus shall not be suspended in this State.
Section 17. Treason against the state.
Treason against the state shall consist only in levying war against it, or adhering to its enemies, giving aid and comfort; and no person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or his or her own confession in open court.
Section 18. Bills of attainder; conviction not to work corruption of blood or forfeiture of estate.
The legislature shall pass no bill of attainder; and no conviction shall work corruption of blood or forfeiture of estate.
Section 19. Imprisonment for debts.
No person shall be imprisoned for debt.
Section 20. Suspension of laws.
No power of suspending laws shall be exercised except by the legislature.
Section 21. Ex post facto laws; impairment of obligations of contracts; irrevocable or exclusive grants of special privileges or immunities.
No ex post facto law, nor any law impairing the obligations of contracts, shall be passed by the legislature.
Section 22. Eminent domain.
Private property shall not be taken or damaged by state, county, or municipal governments for public use without just compensation as provided by law. Private property shall not be taken under this section for private use.
Section 23. Navigable waters declared free public highways; taxes, tolls, etc., for use of shores or wharves.
All navigable waters shall remain forever public highways, free to the citizens of the state and the United States, without tax, impost, or toll; and no tax, toll, impost, or wharfage shall be demanded or received from the owner of any merchandise or commodity for the use of the shores or any wharf erected on the shores, or in or over the waters of any navigable streams, unless the same be expressly authorized by law.
Section 24. Right to peaceably assemble and petition for redress of grievances.
All citizens have a right, in a peaceable manner, to assemble together for the common good, and to apply to those invested with the power of government for redress of grievances or other purposes, by petition, address, or remonstrance.
Section 25. Right to keep and bear arms.
Every citizen has a right to keep and bear arms in defense of self and the state.
Section 26. Military subordinate to civil power.
The military shall, in all cases, and at all times, be in strict subordination to the civil power.
Section 27. Quartering of soldiers in houses.
No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor, in time of war, but in the manner prescribed by law.
Section 28. Titles of nobility, hereditary distinction, etc.; restrictions on appointments to office.
No title of nobility or hereditary distinction, privilege, honor, or emolument shall ever be granted or conferred in this state; and no office shall be created, the appointment to which shall be for a longer time than during good behavior.
Section 29. Immigration, emigration and exile.
Immigration shall be encouraged; emigration shall not be prohibited; and no citizen shall be exiled.
Section 30. Residence not forfeited by temporary absence from state.
Temporary absence from the state shall not cause a forfeiture of residence once obtained.
Section 31. Protection of suffrage.
The right of suffrage shall be protected by equal laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult, or other improper conduct.
Section 32. Marriage rights.
The right of individuals to marry under the terms and conditions set by the law shall remain inviolate.
Section 33. Official language.
The right of individuals to use the English language in their transactions with governmental bodies, under the terms and conditions set by the law, shall remain inviolate.
Section 34. Hunting and fishing rights.
The right of individuals to hunt and fish in this state under the terms and conditions set by law shall remain inviolate.
Section 35. Rights not limited by those guaranteed by the United States Constitution.
Rights guaranteed by this Constitution are not limited to, or dependent upon, those guaranteed by the Constitution of the United States.
Section 36. Construction of Declaration of Rights.
This enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
Legislative Dispatch
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[QUOTE]Section 32. Marriage rights.
The right of individuals to marry under the terms and conditions set by the law shall remain inviolate.[/QUOTE]
81% of voters approved the Sanctity of Marriage Amendment in 2006 – why doesn’t ACCR incorporate the text of this modern amendment? After all, this is a recent amendment adopted well after the 1901 Constitution:
[QUOTE](a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.[/QUOTE]
Does the Alabama Constitution really need to spell out laws that are already granted by the US Constitution (religious freedom, freedom of speech and press, etc.)?
I have several concerns about this section:
(1) What is the “right to privacy”? Is this a way to try and have the “new” Alabama constitution protect the right to an abortion? Does it encompass the right to purchase condoms or sex toys? If “privacy” is coextensive with “liberty” (and, given the definition of the term “privacy” by the US Supreme Court, some would argue that it is), why even include it? Why not just leave it at the government cannot take your liberty without due process of law? Moreover, I strongly disagree that there is any fundamental right to privacy as presently interpreted by our US Supreme Court. I suspect that the inclusion of those words in any draft of a new constitution that is submitted to the people for a vote will obliterate any chance at passage.
(2) What does it mean that we have the “right to pursue happiness”? I understand that that phrase is contained in the Declaration of Independence, but how do you go to court and say “Judge, the government is violating my right to pursue happiness and I want redress!”? Does the taxing power of the State deprive us of our right to pursue happiness by taking away from us cash that we could spend on pursuing happiness by, for example, purchasing a Wii? I think you should save the fluff language, like “right to pursue happiness,” for the preamble, if you must have it at all, and list in the constitution only those “rights” that are truly capable of being defined and protected by a court.
(3) Why is there not a broad due process clause for the deprivation of property? It seems to have been somewhat covered by the section covering deprivations in the criminal context and by the eminent domain section, but it makes me really nervous to see that, in the first section, property is not protected by due process but life, liberty, and privacy are. Is this an intentional move to reduce the importance of private property and focus, instead, on personal autonomy?
(4) I agree with Reactionary that section 32 should be revised to reflect the will of the vast majority of Alabamians. As it’s presently drafted, it looks like nothing more than a way to usher in homosexual marriage, which the vast majority of Alabamians oppose. As presently drafted, this section would be a huge stumbling block to passage of the constitution by a vote of the people.
(5) Section 31 — What are “equal laws”? Also, the wording of the last clause is poor. The way it’s written, (”all undue influences from power, bribery, tumult, or other improper conduct”) indicates that “power” constitutes “improper conduct.” That doesn’t make any sense. If what you’re trying to say is that “undue influence from power” constitutes “improper conduct,” and I suspect you are, then there needs to be a disjunctive inserted between bribery and tumult. I suspect that you are trying to “prohibit” “other improper conduct,” not just “undue influence” from “other improper conduct.” If I’m wrong and the section is attempting to do the latter, then “improper” should be taken out. We should want to prohibit “undue influence” from all conduct, not just “improper conduct.”
(6) Please consider putting a period after “arms” in section 25.
(7) Section 33 is entitled “official language” but fails to establish English as the official language. How about an introductory sentence that reads: “The English language shall be the official language of the State of Alabama.”?
(8) Please restore constitutional sovereign immunity to the State of Alabama (present section 14). There are sufficient exceptions to it under current law. To remove the State’s sovereign immunity is to open the State to a flood of litigation, much of which will be spurious and all of which will be very expensive.
(9) Instead of prohibiting cruel “or” unusual punishment, the constitution should prohibit cruel “and” unusual punishment. In other words, just because punishment may be unusual does not mean that it’s a bad thing. It should have to be cruel before it is prohibited by the constitution.
Just my two cents.
It seems (unless I missed it somewhere) that the most important lines from the Alabama Constitution have been stripped out:
“The sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions, it is usurpation and oppression.”
“Section 22. Eminent domain: Private property shall not be taken or damaged by state, county, or municipal governments for public use without just compensation as provided by law. Private property shall not be taken under this section for private use.”
Private use needs to be defined much more clearly. The current MO is to use blight ordinances to effectively seize property and turn it over to private developers.
Well, guess what: Section 35 of Article 1 is the MOST IMPORTANT statement in the entire Alabama Constitution, and you’ve got it LEFT OUT.
THIS DECLARATION OF RIGHTS IS FATALLY EMASCULATED.
Please read this:
http://www.freealabama.com/archive/martin8.htm
I am very pleased to see that Article I, Section 1 of this draft Constitution contains an Equal Protection Clause, as does our U.S. Constition. The lack of an Equal Protection clause in our current Alabama Constitution is one of its primary failings and perhaps the best evidence of the pernicious intent underlying our current 1901 Alabama Constitution.
Where’s the curfew ban? Where’s the ban on zoning laws and building codes based on aesthetics?
Section 32, Marriage Rights. Like it the way it is and object to the spirit and substance of Reactionary’s “Sanctity of Marriage” suggestion. A Declaration of Rights should be about protecting rights, not limiting rights or excluding law-abiding people from rights. Of course, in Alabama we have a long history of finding ways to keep certain people down, especially those we feel are sub-human. Used to be African Americans. Now some folks strive to make sure gays don’t get seen as members of the human family.
Section 25: Convicted felons lose certain rights, but not their citizenship. I think the choice of the term “citizen” should be reconsidered.
privacy is a thorny issue. In this instance, the original declaration of rights may have gotten it right: “The government shall not use its power, authority, or resources to invade the privacy of any person.”
Section 34 reads like the punch line of a Jeff Foxworthy joke. I do support the right of people to hunt and fish when licensed and following reasonable laws regulating the sport. But the Alabama State Constitution is a silly place to put this. Do we need to include every hobby under the Sun in this document as an inalienable right?
Before you say “that is typical of Alabama” there is one other state, a state north of the Mason-Dixon Line with a similar provision in its state constitution: Wisconsin.
I agree with the comments stating that privacy needs to be addressed differently, but disagree with those who think it should be left out. I also agree with Lou that, “right to pursue happiness”, should be removed. It is ambiguous and difficult for a court to properly interpret. I suggest replacing this with “the right to property”.
Section 5 on seizure of property should be restated such that no seizure of property can occur except on conviction.
I agree with many of the statements above, overall this seems to enumerate a lot of things that aren’t necessary to be enumerated. I think we could substantially reduce the length of this section.
It seems to me that a statement that rights guaranteed by the federal constitution are also guaranteed by the state consitution would be more concise than the proposal here with its listing of numerous provisions from the Constitution and Bill of Rights, and would achieve the same goal.
I think Section 1 has two problems. The first is that it borrows too liberally from the Declaration of Independence. We should use our own words even if they are inferior to Jefferson’s. The phrase right to privacy is associated with controversial U.S. Supreme Court decisions like Griswold and Roe v.Wade. There is a very good chance that a proposed constitution including that phrase would fail to meet with voter’s approval regardless of what else it contains.
Section 31 seems unnecessary since Article VII addresses the same issue.
I agree with those who have already said that Section 32 should reflect what the overwhelming majority of Alabama’s citizens recently approved. To put anything else regarding marriage in a proposed state constitution would show disrespect towards the democratic process and would certainly doom the effort to failure.
Section 33 as I read it says that citizens have the right to use English in their transactions with the Government. It does not address the question of whether other languages may be used, or establish a procedure for determining under what circumstances other languages could be used. I recommend either dropping this section or rewriting it so that it fully addresses the issues it raises
On a positive note the equal rights provision and public access provisions are praiseworthy.
About eminent domain. It is not uncommon in a deteriorating neighborhood that properties are owned by people who live elsewhere and even out of state. The neighborhood is stuck with vacant lots and building overgrown with weeds and with trash, snakes and rats. It can be to the benefit of such a neighborhood to envoke eminent domain so that these places can be cleaned up and proper dwellings build for private ownership.
Re: Section 2. People source of power.
Perhaps this is the section that should contain a provision saying that the people of Alabama have a constitutional right to an Initiative and Referendum process so they may introduce legislation, when necessary because the legislature hasn’t passed such legislation, that would bypass both the legislature and the governor and be put on a ballot for voters to accept or reject. Representative Mike Ball has introduced a constitutional amendment bill in the past several sessions of the legislature that would provide for this. In the most recent session his bill was known as HB 279.
As Theodore Roosevelt said in 1912, “The initiative and referendum should be used, not as substitutes for representative government, but as methods of making such government really representative. Action by the initiative or referendum ought not to be the normal way of legislation; but the power to take it should be provided in the constitution, so that if the representatives fail truly to represent the people on some matter of sufficient importance to rouse popular interest, then the people shall have in their hands the facilities to make good the failure.”
I.5 Use “documents” instead of “papers.” It is a recognized tern in this computer age, and would forestall nitpicking over whether information in a computer is protected.
I.25 Could wording be added to ensure that legislation could be passed to outlaw certain kinds of weapons? That should not be specified in a constitution, but the constitution should not be construable to allow any and all weapons.
I .34 The inclusion of hunting and fishing rights in a constitution still seems a bit ridiculous to me. Laws exist to regulate and license these activities.
I looked up sec. 35 in the current constitution. I do not agree that it needs to be included.
John – Marriage Rights. Like it the way it is and object to the spirit and substance of Reactionary’s “Sanctity of Marriage” suggestion.
You object to the “spirit and substance” of my suggestion? My suggestion is to maintain a contemporary amendment to the Constitution – which was approved by an overwhelming majority of the people of the State. You must also object to the ’spirit and substance’ of the State legislature and 81% of Alabamans.
The ACCR is trying to sneak in liberal laws… If anyone needed proof of it – there it is. The group is what you suspected it to be – a bunch of liberals trying to pass their agenda in the name of Constitutional Reform.
THE ANSWERS TO NEARLY ALL OF YOUR QUESTIONS ARE RIGHT HERE:
http://WWW.FREEALABAMA.COM/ARCHIVE/MARTIN8.HTM
Oops, it only works in lower case. Sorry.
http://www.freealabama.com/archive/martin8.htm
Section 24
Like the U.S. Constitution—as now stated this section does not provide the guarantee of an answer from the governing body invested with the power to do so– of the petitions, grievances of the people. Therefore just as in the U.S. Constitution under this wording these grievances can just be ignored as is the case at the present and which is being done on a national level.
The draft would be improved by inclusion of popular rights to participate and right to know. Model provisions can be found in the Montana Bill of Rights, Article II, sections 8 & 9.
Article 1 Section 25 Right to Keep and Bear Arms
Should read : Every citizen has the right to keep and bear arms, in defense of his, other persons lives and the state. This law shall not be infringed on by any local, county or state goverment enity. No convicted felon shall be allowed to own or posess a firearm unless their rights have been returned to them by the courts.
Article 1 Section 36 Should be Section 37.
Article 1 Section 36 The people shall have the right to recall any elected official within the state by a majority vote of the citizens of that respective jurisdiction.
Section 3 should be amended to state:
“any provisions in this section notwithstanding, public officials also have the right to free exercise of religion at all times, including times in which they are executing their official duties.”
Section 4
“being responsible for the abuse of that freedom”? What the heck is that supposed to mean? That one clause absolutely destroys free speech and should be stricken. I see why the liberals who wrote this did so, they can use it to quash all non-leftist speech.
Section 5
Last sentence should be stricken. A hypothetical demonstrates the point. Illegal drugs are seized (contraband), but the person in possession is aquitted at trial. This provision requires the state to give the drugs back.
Apparently, the people involved in this document are both dope smokers and communists.
Section 6
Strike the last two sentences. This gives a “right” in cases in which it may not even be possible. Suppose there is no DNA evidence. This “right” requires the State to give the defendant something it cannot.
Pro dope, communistic, and pro-criminal. Sad.
Section 16
Needs to be amended to allow for emergencies, just as the federal Constitution does.
Section 22
Needs to be amended to ensure that seizures are not made to “increase the tax base”. No private entity should ever directly benefit from an eminent domain seizure.
Section 25 is grotesquely insufficient. It should read instead:
“The right of the people to keep and bear arms shall not be infringed. The legislature shall have no power to enact any law which hinders, impairs, or inconveniences the right of the citizens of this State to keep guns, ammunition for guns, knives, swords, or weapons of any kind. The overt act of any public official to violate the provisions of this section shall constitute the crime of treason and is punishable by death.”
That ought to get the message accross that no gun control will be permitted in Alabama.
If there was any doubt that liberals wrote this, Art. I Sec. 32 should dispel it. It should be amended to read:
Marriage in this State shall consist only of one man and one woman. The State shall not recognize any other forms of marriage regardless of the origins of the marriage. This State invokes its sovereign rights not to be forced to recognize the experiments and ill-conceived policies of any other government.
Section 33 is another liberal hobgoblin. It should read instead:
The official language of the State is english. All official business of the State and any instrumentality thereof shall be conducted in English. Under no circumstances will any public official or instrumentality of the state use any language other than english to conduct official business.
Article I, Section 34 is another liberal attempt to destroy hunting and fishing rights. The power to limit “as set by law” is the power to destroy. The section should read:
“The right of individuals to hunt and fish in this state shall remain inviolate.”
The Moc Convention Draft avoided the checks and balances within the Constitution of the United State of America to restrain the excess, the fury, and the evil of democracy. The omission makes constant for the future the preferences of passion, fear, and prejudice over race, sex, and economics, and of religion.
Alabamans need to decide if Alabamans are finally ready to get themselves off the list of quarantined states by accepting the Constitution of the United States in practice. Otherwise, all the current effort leaves Alabama with the same “preference based” black hole of economics.
Montgomery will continue to suck the industry of the many into the black hole of a few.
Constitutions must be written, they must be in the general and in the abstract, and they must deal with securing only the laws of natural liberty for the People.
An ethical man knows “what is wrong”. A moral man will not to do “what is wrong”. An ethical man needs the right NOT to do “what is wrong” without the fear of censure. The Alabama constitution must incorporate that right, that check and that balance, to secure the natural liberty of all Alabamans regardless of race, sex, economics or religion.
Leave the administrative details of structure to the Legislative branch, secure the Judicial branch the right to hold constant the constitution, and hold the Executive branch to the execution of legislation not contrary to the constitution. Insure that the laissez-faire republican form free of preference and restraint is our economic arena.
If the grammar is “MAKE NO LAW”, the Judicial branch has the obligation to bring back to constancy what the democracy has ignored. The amendment process is where democracy may change what is to be held constant.
Another check and balance is to motivate those who do not scruple in their ambition and avarice the necessity to do so before investing their capital based on law designed to give them preference in commerce over the many. Law that gives preference is a violation of natural liberty and therefore to constitution and therefore subject to nullification by the Judicial Branch; if the Judicial branch has been given “the right to speak without the fear of censure” by the democratic part when ratifying a state constitution accepting the Constitution of the United States of America as the supreme law of the Alabama.
Am I the only one thinking that ARTICLE I, section 35 is a statement refuting the legitimacy of The Constitution of the United States of America in the way we conduct ourselves.
Please read the excerpt from the United States Constitution.
Article. VI
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
In addition, Article I, section 36 covers the ground of concern; unless the right to deny others their inalienable rights by democracy is the Right we give up with a real constitution consistent with the one we pretend to give allegiance.
I am sorry, but Article I, sections 32, 33 and 34 show want for further research on Constitution versus law. A study of The Constitution of the United States, ARTICLE 9 and the Bill of Rights explain all these concerns. Enumeration in a State constitution can only act to divide the people into anarchy.
Anarchy is not the “republican form” guaranteed by Article IV, section 4 of the Constitution of the United States, though it might seem to be the Republican Party guarantee currently.
Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;
The republican form in this State should be no different than the form we secured for ourselves in Conventions in 1788 by ratifying The Constitution of the United States of America.
Drafting a constitution as oppossed to legislation
Edmond Randolph: In the draught of a fundamental constitution, two things deserve attention:
1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events, and
2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarily differs from that of law)
Records of the Federal Convention, 1787
There seems to be a fork in road for the People of Alabama. I am for “taking it”. to quote Yogi Berra.
What divides us must be kept for law? The mystical irreconcileable were covered in the Twelve Tables of Rome: Treason.
Amendment I, The Constitution of the United States of America
After each phrase of The First Amendment are works prior to the First Congress in 1789 that may have promoted the phrase. No one can prove or disprove them as a source that Madison and the committee members might have drawn from for the final product. However, they certainly support more readily the grammatical reading of the amendment, than the historic based “original meanings” interpretation.
Congress shall make no law – “No law” means no legislation for enforcement in whole, or in part.
“such as positive law has perhaps never yet established, and probably never will establish, in any country: because, with regard to religion, positive law always has been, and probably always will be, more or less influenced by popular superstition and enthusiasm.” http://www.bibliomania.com/0/-/frameset.html Research, Nonfiction, Adam Smith, Wealth of Nations, Book 5, Chapter I, Article III
” should this enemy to the public quiet be armed with the force of a law?” Memorial and Remonstrance Against Religious Assessments James Madison [1785],
respecting an establishment of religion, – Here we need Justice Scalia’s high school English teacher. An establishment is an organization. Articles of Faith are the by-laws of religious sects, organizations. An organization is defined by its by-laws.. If you like a particular by-law, follow the faith. If not, don’t.
”laws based upon single preferences of faith would destroy the civility of the society open to merit of every description, without regard …to any particular profession of religious faith.” The Federalist Papers, No 52, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter, A Signet Classic, Penguin Putnam, Inc., ISBN 0-451-52881-6, page 323-324
”no particular religious sect or society ought to be favored or established by Law in preference to others.” Creating the Bill of Rights, The Documentary Record from the First Federal Congress, edited by Helen E. Veit, Kenneth R Bowling, and Charlene Bangs Bickford, John Hopkins University Press, Baltimore and London, 1991, ISBN 0-8018-4100-3, page 19.
or prohibiting the free exercise thereof: “No law” prohibiting the free exercise of a man’s choosing. However, this seems to go both ways. A man cannot be prohibited from not choosing a faith. Let’s be honest. The market, the time, and the place will determine for each man his faith or lack thereof.
“Every man, as long as he does not violate “ the laws of justice”, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.” http://www.bibliomania.com/0/-/frameset.html Research, Nonfiction, Adam Smith, Wealth of Nations
or abridge the freedom of speech, or of the press; of the people peaceably to assemble, and to petition the Government for a redress of grievances. Abridged is a key word. The Convention of 1787 ended without the Constitution having a Bill of Rights. Article I, Section 9 provided only a partial Bill of Rights. Other rights were strewn among the other Articles. It is important to remember that the delegates understood the document, as written, to secure all of their rights as British descendants. Their intellect grasped the essential liberty, that what had not been constrained in Constitution was reserved to the people. The freedoms of speech, of the press and of peaceful assembly had already been provided. Religion was not a source of legislative constraint within the Supreme Law of the Land. Nor was it constrained in any way within the document. It was not be a source of legislation for the People, nor were the People to be constrainted. The freedoms of speech, of the press, or of peaceful assembly would not be abridged, lessoned, in the debates of a free exercise of religion. Justice Scalia is not lacking for intellect by his failing to discern the right to slander public officials and public figures from this phrase. To find that right in this phrase is a bit of a pull. “It just ain’t there!!”
“unless by human interposition disarmed of her natural weapons, free argument and debate,”
“The best test of truth is … to get itself accepted in the competition of the market.”
The First Amendment as stated by Adam Smith: The father of laissez-capitalism grasped religion as an essential to man’s psychic existence. As essential as air and water. But, he and his group of political economists recognized the danger to domestic tranquility, and to society as a whole, if men were not able to exercise the same natural liberty in the practice of their faith as they should be able to exercise in the practice of their commerce. Men like Adam Smith and Benjamin Franklin may have seen something worth seeking on the other side of British Imperialism. Laissez-faire capitalism certainly implies that the natural forces of competition can make all men’s subsistence the product of the employment of their own capital. Commercial tranquility, and the general welfare of a society certainly seemed to depend on the absence of superstition, fanaticism, and folly. Monopolistic preferences, granted to one group of men over other groups of men, generate the same set of aggressive human responses, whether the oppression is over his religious condition, or over his economic condition.
The resistance to a single national religion as imposed by British law, and by other European nations, was surely strong amongst the new nation. In 1787, many a state constitution specified that State’s particular sect of religion. However, there was a more intellectual argument for the prohibition of a single national religion, one with broader implications to place a check and balance the legislation of religious preference. During the Convention religion was never really of much importance. Benjamin Franklin, during a particularly dark period of debate, made a plea to begin the daily sessions with prayer. But the measure was tabled out of respect for the old man, and never revisited. Mason, Rutledge and Randolph felt strongly that something in writing was essential else the States would continue to ignore what British subjects, now Americans, expected as rights. The free exercise of religion stood among the most impassioned of those rights. Smith’s work in his Book 5, stated best the check and balance that might save the new nation from the divisive attributes of religion, and the danger of its passions to the whole of the society.
“The teachers of each little sect, finding themselves almost alone, would be obliged to respect those of almost every other sect, and the concessions which they would mutually find it both convenient and agreeable to make to one another, might in time probably reduce the doctrine of the greater part of them to that pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism, such as wise men have in all ages of the world wished to see established.” http://www.bibliomania.com/0/-/frameset.html Research, Nonfiction, Adam Smith, Wealth of Nations, Book 5, Chapter I, Article III
Let there be many sects, and hope they learn to respect one another, since none may be given preference in law over any of the others. Madison seized the concept, put it to the pen, Congress approved, the people ratified, and after two hundred and twenty years the Constitution retains its enemies. Hamilton quotes Hume, in his final Federalist, No, 85, wrote,” To balance a large state or society, whether monarchical or republican on general laws, is a work of so great a difficulty, that no human genius, however comprehensive, is able, by mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct mistakes which they inevitably fall into in their first trial and experiments.” Hamilton concludes Federalist No. 85 with, “…I know that powerful individuals, in this and in other States, are enemies to a general government in every possible shape.”
Ambition and greed, whether religious or economic, will always construct for man his greatest dangers. Passion, prejudice and fear, whether religious or economic, will at first trump logic and reason for men in harms way. Mans’ only protections from his superstition and folly are the general rules of a Constitution fully executed and faithfully adhered. However, the common man seldom knows the source of his liberty, and perfidy too easy.
The GRAMMAR in Constitution must be Constant. The grammar of the First Amendment is just that.
“Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Three verbal phrases; each modifying, each defining, each describing clearly, the noun “law” asking the questions “What kinds of law?” and “How will those issues be decided?”
“Congress” answers the question “who” shall make no law. Congress is the agent of the people; therefore, the people are “who shall make no law”. The Constitution of the United States is from the feet of the People through all government intermediaries to the Central Federal government” Article IV, republican form of no less than the form ratifed in 1788. That means the State representatives, bound by Oath from Articel VI “Shall make no law”. The People spoke on that issue in 1788.
As for solving economic issues with a laissez-faire doctrine of no preference in competitive advantages, the Congress chose a laissez-faire doctrine of no preference in the competition for the true faith.
The Constitution reflects the enlightenment view for solving the issue of faith as it favored competition in commerce; as stated in Book V, Wealth of Nations by Adam Smith. Also refer Article I, section 9, paragraph 6, “No preference in regulation”
The same laissez-faire doctrine is also reflected in Jefferson’s Virginia Statute for Religious Freedom: “unless by human interposition disarmed of he natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them: …we are free to declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall hereafter be passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.”: passed January 16, 1786.
The above analysis I believe to be Originalist in the most absolute sense possible. The words read the same in substance today as they read in 1789 when placed in the Constitution. They words have no need of period interpretations for they will mean the same, when proper English language is applied, for eternity. That makes the words and phrases what Constitutional is all about; constant for all time.
Until Americans are willing to read the First Amendment as written, and accept that the amendment is laissez-faire instead of the monopolistic doctrine certain faiths demand, the Constitution will be ignored at every opportunity when the passions of a Christian mob have lost all reason and logic. Until then, the “free-trade rapacious capitalism” that America practices will continue to provide the short peaks of wealth followed by deep troughs of recession: the environment within which the dealers, described in Adam Smith’s Wealth of Nations, thrive and cherish.
The fear that the representatives will ignore a Bill of Rights when convened as a vindictive, ambitious, and rapacious mod of men having NO scruple is justified by the experience of being Alabaman.
However, get a firm grasp of the phrase, “what is not enumerated is retained”. If hunting is not enumerated, it is “RETAINED!!!”
The Constitution of the United States, if ever executed, enumerates only the Law of Natural Liberty.
“So long as one does not harm his neighbor in seeking his sustenance” have a great adventure.
That seems most difficult for the Ten Commandment Group to handle. They demand preference to their way ONLY. Even the New Covenant group has some difficulty with the concept of recognizing for self when crossing the line for ambition or greed. At one time they were not so vindictive, as currently programmed to behave.
Alabamans are at a fork in the road. Yogi Berra says, “Take It!” I hope we will. To NOT find our Constitution and incorporate it into the State constitution would be the “tax that oppresses” the next generation more than we can grasp. That same “tax” will kick in if we get it wrong again!
Most important, get a handle on the independence that an independent jurist will provide a representative so that he does not have to accept the mob’s vindictive, ambitious and rapacious culture as his own. There is your security in the Rights of Men.
In theory the representative will have the People who elected him covering his back when trying to hold Constant their constitution. He will have the right to speak without fearing censure from democracy while holding Constant the constitution.
It is one part of system of checks and balances of Constitutional construction. The separation of powers through construction,
Sec 6: Is counsel for the indigent always paid for by the state in Alabama, or does the county sometimes pay for it?
Sec 22: the use of the word “damaged” may be problematic, since a city ordinance may diminish the value of property (and thus “damage” it) without being a taking, according to the U.S. Supreme Court. Only when a law or ordinance deprives the property of nearly all value does it transform into an inverse condemnation situation. I don’t know whether the word “damaged” is understood judicially to be limited to physical incursions or not.
Sec 35: it would be better if it read, “Rights guaranteed by this Constitution are not limited to, or dependent upon, those guaranteed by the Constitution of the United States, and in its interpretation of the Alabama Constitution, the Supreme Court of Alabama shall not be bound by the conclusions of the United States Supreme Court interpreting the United States Constitution.”
Hope I’m not too late commenting. My opinion is that we don’t need to be repeat things in the U.S. Constitution. No need to put Religious Freedom, Search & Seizure, Bear Arms, Double Jeopardy, Involuntary Servitude, etc. in there. Also, I don’t think treason is necessary. If an act of war is taken against Alabama, I have a feeling the U.S. military will step in. I’m not sure a Bill of Rights is necessary in a state constitution.