Tuesday
Jul032007
by 
Bishop Hill
Bishop Hill Bill of Rights
Jul 3, 2007 Civil liberties Gordon; about the Bill of Rights you want to introduce. Don't worry yourself about it - I've done it for you.
(Comments on this thread please)
Reader Comments (54)
I would revoke or amend several parts of the 1689 Bill of Rights.
Give all citizens (not just Protestants) the right to bear arms and to remove the ban on a Catholic monarch.
Catholic Monarch - possibly. Is it important?
However, Number 8 is stronger than the Fourth Amendment, perhaps even dangerously so, in requiring either a warrant or consent under all circumstances. The Fourth Amendment lays out the requirements for search warrants, and requires that searches and seizures be reasonable, but it notably does NOT require that all searches be pursuant to a warrant. The case law holds that a warrantless search is presumptively unreasonable, but this is very much a rebuttable presumption. Let's say a guest calls the police from inside your home, telling them that you're attacking them and they're in fear for their life: do you want to have to find a judge, draft an affidavit describing the details of the place to be searched, and get a warrant issued, while in the meantime someone's getting killed? "Exigent circumstances" can justify a warrantless search.
The contours and limits of the Fourth Amendment are part of why criminal practice in the US involves so many motions to suppress evidence: because whether a search or seizure was "reasonable" is an inherently fact-sensitive question.
This is a good point. I've added the words "Except in an emergency.." to the start. I've also slightly amended the wording to make it clear that all private property is protected, and not just private property owned by an individual.
As an example of what I mean, the clause of freedom of speech could, like in the ECHR, be qualified to permit restrictions which are required in a peaceful society (or words to that effect). The problem that I see with this is that politicians will use this as a get out to argue for massive breaches of the constitutional principle. The US Constitution is absolutist as regards the FoS principle but the courts are able to interpret the first amendment broadly enough to prevent solicitation of murder (ie "clear and present danger").
So I would propose to have a BoR stated in absolute terms but allow the courts some leeway in interpretation.
Which is why the US Framers begun their Amendments with "Congress shall not..." because they were reacting to the absolute power wielded by Parliament in the name of the Crown.
The American Framers understood very clearly that liberty was inescapably linked to limitations on the power of the State, the power of Congress, the power of the Judiciary, bring all three branches under the Constitution and the rule of law.
Without these limitations, your proposed Bill of Rights means precisely nothing because you have not made the State bound to uphold the Bill of Rights. Therefore the State will ignore them.
Furthermore, if you want religious freedom, you must disestablish all religion from the State and maintain a strong Jeffersonian "Wall of Separation" between them.
When I drafted the text, I was thinking that the BoR needs to apply to all levels of government, rather than just to the UK level. We presumably wouldn't want Surrey County Council imposing restrictions on freedom of speech any more than we would the UK government.
Separation of church and state - definitely worth considering. I think a separate post is required - something I will try to do shortly.
Item 3: 'speech' needs to be defined. The US Supreme Court has distinguished between commercial speech and the rest, allowing significant regulation of the former.
I've responded to the freedom of speech point on a new posting.
http://bishophill.squarespace.com/blog/more-bill-of-rights.html
I'm still thinking about seizures.
terry
There is one great advantage to having suffered a state education, namely that you always have an excuse to hand on occasions like these.
Thanks.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Interpreter
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
***************
You have omitted freedom to travel and specifically freedom to travel anonymously. Google 'John Gilmore TSA' for reference.
Freedom of speech guarantees must be absolute. The Canadian Charter of Rights has a 'subject to such limits as are prescribed by law' clause, which results in the capability of thoughtcrimes as in the Finnish case you referenced. And in the insanity of 'Human Rights Commissions'.
It would be more to the point to guarantee the right to insult religon. Guarantee the right to insult both religon in general and particular religons. Guarantee the right to both academic debate and vile slander. Commit the government to upholding the right by both physical protection for insulters and legal protection via prosecution and imprisonment for those who do not confine retaliation to words.
Then the secular ambitions of religious hegemons become a burden to them. Sow ambition, reap insult. Religions will learn not to make trouble, because of the opprobrium it attracts.
Isn't that the point of a freedom of speech clause?
Except in an emergency, no officer of the state may enter private property or otherwise intrude upon an individual's privacy without their permission or a warrant authorised by a judge on the presentation of persuasive sworn evidence. "
You specify "state" but not private company - this would lead to 'State' employing private companies to do the State's work and it would be legal. It would, and certainly could, lead to a private police force/bailiff's/any other sanctioned body (as is the case now in the UK).
Whereas you may not pay your phone bill - they could then legally ask a private bailiff to enter your home and take whatever to pay the bill.
No law or regulation is permitted that restricts the freedom of religious belief and practice.
=====================
Or the freedom not to have a religious belief or practice
The right of an accused person to due process and trial by jury shall not be taken away. In all cases, civil and criminal, individual or corporate, the burden of proof shall lie with the accuser or plaintiff. The defendant is innocent until proven guilty. The defendant has the right to confront their accusers and to challenge their evidence, all with the assistance of legal counsel. The right of appeal and freedom from double jeopardy shall not be taken away.
Right of silence? Right not to have inferences from silence? Right not to self incriminate?
Burden of proof? Beyond a reasonable doubt or balance of probabilities?
Every one has the right not to be born into debt. You cannot force people to pay for the debts of others.
I would add language that secured the "Right to keep and bear arms" as necessary security for the maintenance of all other enumerated rights.
Bill
You are right. I left this out because at present that battle is unwinnable in the UK. It may change, but the time is not yet ripe.
Perhaps No. 9 might be better if it read,
The right of a citizen to keep and bear arms in defense of himself and the nation shall not be questioned.
Bishop,
Been jumping around chasing the climate scandal and found your site. I think one of the more forward thinking Liberties you laid out was No. 13. I only wish the US had had that in our Bill of Rights.
That seems a pretty good Bill of Rights to me.
In todays context there are couple of freedoms that should be explicitly stated, such as
The freedom to criticise any religion or religious leader (Stemming from the freedom of speech)
The freedom from indoctrination of children - (The banning of religious schools)
NZ doesnt have any written constitution so far as I am aware of. And not even the tradition of the UK. A huge failing I think.
I would be uncomfortable with banning religious schools. This puts a duty on government. The bill of rights is supposed to create limits on it.
Well a friend of mine, a primary school teacher, was asked by her 6 year old student what her religion was. When she replied she was a Christian, she was informed by her student that in that case she would go to hell. This child got her information from a religious school she attends.
It is a step from there to regard her as not quite human and a step to remove such beings from the Earth.
What is your answer to that? This "us and them" apartheid of the mind. Ultimately this leads to a situation like the Nazis and Jews and the ultimate violation of human rights.
Re 2: "Each individual owns themself and the product of their labour". "Themself"???
English is not my first language, but I am sure this mix of singular and plural forms is incorrect. Why not: "All individuals own themselves and the product of their labour"?
You are quite right. I'll fix it.
I discovered this site as a result of reading an article in The Spectator re: 'Global Warming Guerrillas'..
With regard to Item 12, are you suggesting that rights and privileges removed comparatively recently - (on a political time scale) - be reinstated?. Or is it too late to expect that the nanny state will agree?.
Dave
That's the suggestion. The idea that there are certain inalienable "rights of Englishmen" has a long heritage - this is an attempt to make sure that none of them are lost in the process of putting things down in writing.
No taxation without representation:
No Government, its departments and its agencies, or any other institution should impose a tax of whatever kind on either income or capital unless and until it receives a mandate by those on whom the tax is levied in free and fair election.
No taxation without a purpose:
No Government, its departments and its agencies, or any other institution should impose a tax of whatever kind on either income or capital unless and until it clearly states the purpose for which the tax is to be levied.
Great stuff.
With your permission, I've republished this on my blog. See "fundamentals" on the masthead.
Your Grace,
I'm busy reading Churchill's "To wave their guns in the tyrants face" It is a historical study of libertarian violence in the US.
I've got to Fry's Rebellion in 1798 Pennsylvania.
An interesting point emerging is the concept of popular nullification of unconstitutional legislation. The basis seems to be that if the legislation is generally seen to be unconstitutional and infringes the liberty enjoyed by the ordinary people, then, depending on interpretation, it can / should be rendered null and void by popular none compliance.
Different, staged degrees of objection were used, graduating from simple petitioning of elected members to repeal the legislation, through poular none compliance. then intimidation of tax assessors and, unfortunately, in the case of the church going (rather than annabaptist) German speaking communities, sufficeint notice was not taken of the strength of their objections and insurrectional violence was resorted to.
I am no lawyer, but there needs to be a mechanism for the peaceful nullification of laws imposed against the general will. The alternative to peaceful resolution is violence (or opression - same thing really) from one or both sides.
a thorny problem, but one that is far better being talked about than it would be fought over.
Keith
I like the idea, but here in the US, Our Supreme Court simply ignores the Constitution and bill of rights. Keith has a good point about peaceful nullification. I like the idea of if the people in a majority of states, vote for a new amendment, the states then must in being the ratification process. This circumvents the tyranny of Congress and the Court.
I like the idea of an amendment that requires all branches of government to site where in the Constitution they have the authority to make a law, issue an order, or when making a ruling.
I also like the idea of restoring the eternal flame to the Capital Building. It could be carbon neutral as we could use our politicians to feed it.
This BoR must overturn all EU treaties. If it does not, then the terms of the BoR must be interpreted within the terms of those treaties - which would nullify the whole thing. Thus I think it needs another bit of wording, probably in #1:
1. The ancient rights and liberties of the British people shall remain inviolable, and any and all bills or statutory instruments made before the confirmation of this Bill and that do not conform in all ways with this Bill are deemed to be annulled, discarded, repealed, shredded, and forgotten.
"I also like the idea of restoring the eternal flame to the Capital Building. It could be carbon neutral as we could use our politicians to feed it."
mmmm! the smell of pork fed fat, barbecueing....
lol!
On a more serious fire theme, things seem to be hotting up over "Slaughter - Care" and the Fed exceeding its enumerated boundaries, I just hope no one tries to use a "Reichstag fire" stunt to swing things.
Er um can I mention the elephant in the room in which we discuss freedom of religion?
There is one and only one religion which has the stated aim of bringing the whole world under its religious control. In the UK there is one and only one religion which contains radicalised young men bent on the killing of others in the nam of that religion.
I am truly not comfortable with that religion existing or being free in the UK.
I think you would do better to start with the US Bill of Rights --
As an Irishman, I am very partial to them. They were written with quite a few Irish-born Americans in the Congress. In particular, the First and Second amendments are near and dear. My great-grandfather, who was a Catholic large farmer in Co Cavan, was forced to pay tithe to the Church of Ireland, and he had no gun to say otherwise.
And I might add I know Irish history quite well.
2, “Government may only use compulsion in the protection of the liberties of others.”
I should prefer the only placed more appropriately:
“Government may use compulsion only in the protection of the liberties of others.”
Furthermore, should not compulsion be defined?
8. “... no officer of the state may enter private property or otherwise intrude upon an individual's privacy without their permission...”
Why not “an individual's privacy without his or her permission”?
10. “No law or regulation is permitted which has retrospective effect.”
Why not? If a law were passed which ensured that people who had been defrauded by their governments in previous years were to be compensated, would this not be a good law with a retrospective effect?
Do you mean, “No law or regulation may be effected retrospectively” or even, perhaps, “No law or regulation which affects personal liberties or duties may be effected retrospectively”?
The "State" is a private company, and it owns you. The United Kingdom is a corporation. When you register anything, house, car, birth of your child, you assign rights, give to that company, right of ownership.
The entire legal system is a corporation, The Courts of the United Kingdom Corporation
How does this stack up in Common Law?
To which 'courts' can someone objecting prosecute, sue them? By going through the Corporation's legal system one accepts its jurisdiction, it is admission of its rights to "your person".
I've had this in the masthead of my now defunct Wordpress blog for some time, Bishop.
http://hesspartacus.wordpress.com/bishop-hills-constitution-for-the-uk/
I wonder, though, what you think of the idea being floated in certain quarters across the pond, that it may be time to introduce a Jefferson-Madison-style 11th amendment.
http://hesspartacus.tumblr.com/post/2164505462/ataxiwardance-jeffersons-11th-failed-amendment
Do you think it might work (or indeed is it needed?), or do you think that the less specific and more general a Bill of Rights is, the less open it is to abuse by politicians and corporations?
Certainly I agree that generalisation is dangerous. I'm not entirely convinced about the need for the particular amendment you propose. I think deregulation is the first step that should be tried to deal with over-large corporations.
I would add the following in full to your bill. Confirm. of liberties 2 Hen 6, liberties charta 1405, liberty of the subject 28 EDW 3, Magne Carta 1215 and 1297, liberty of the subject 1354, billof right 1688, act of sttlement 1700.
These all have to be confirmed.
"The laws of England are the birth right of the people" act of sttlement 1700
All citizens of the UK (I hate the concept of being a subject. Subject to what?) shall have the same rights and privileges are other citizens.
Why's this needed? Well consider the MPs. They have voted themselves an exemption from HMRC inspecting their expenses. With such a right, we would all get the exemption.
Similarly, since Vince Cable received his ministerial discount on his VAT evasion, we would all get the same discount.
I share several commentators problems with the Freedom of religion section.
I would rather that the Freedom of Religion section be replaced by something which, while it allows freedom of belief, also does not privilege any such beliefs over non-belief or the general laws of the land.
If religions are stripped of any extra protection under the law then the problems of "honour" killings, the non-medically necessary ritual mutilation of children's genitals (of either sex), forced marriages, etc, etc, are treated by the law in exactly the same way as if committed by non-believers.
Any religion which wants a higher profile in society than a few believers quietly being innocuous is going to have to take whatever (legal) flak its ambitions and behaviour merits as it will have no undue protection from free speech or prosectution if it breaks the law.