PRIVILEGES AND IMMUNITIES

Rights Imply Remedies

Copyright © by Barnabas D, Johnson

According to its Preamble, the 1787 Constitution of the United States sought to "secure the Blessings of Liberty to ourselves and our Posterity."

The word "secure" is crucial. First, the Constitution does not claim to "create" those Blessings. Second, it reflects the pre-existing premise that all "liberties" must be secured by an evolving Rule of Law that includes tacit, unarticulated, even unarticulable — definitely unenumerated — "rights" that imply "remedies" ... including "privileges" and "immunities" against governmental encroachments.

Above all, the Constitution is a legal document. It makes enforceable law to secure what is often called "Ordered Liberty" by:

(A) Creating governmental institutions that will be subordinate to the law, including those pre-existing legal premises;

(B) Reinforcing old and creating new remedies — including rights, privileges, and immunities — against encroachments upon liberties; these liberties, the Founders understood, were and must remain (1) "self-evident" in their fundamental nature, yet (2) "evolved" by previous common-law development, including case-by-case adjudications in English courts, and (3) "evolving" towards future refinements, as part of a living body of law securing liberty;

(C) Specifying or "enumerating" fundamental liberties, rights, privileges, and immunities, such as the Fifth Amendment's guarantee of Due Process of Law (which had evolved since the 1215 Magna Carta and was intended, by the Founders, to continue evolving); while

(D) Explicitly ordaining, in the Ninth Amendment, that "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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Liberties, rights, privileges, and immunities seem almost interchangeable in the Constitution, the 1777 Articles of Confederation, and a long and evocative line of prior constitutive documents — including the first on the American continent, the 1606 Charter of Virginia.

This is because they were based on fundamental premises — "according to the laws and statutes of this realm" (as referenced in Article XI of the 1628 Petition of Right) — which, undergirding the English "law of the constitution" governing "regular law" in England (see discussion below), reflected ancient principles of "common law" and "equity law" that were incorporated into the U.S. Constitution. Arguably the most significant of those fundamental premises was, as it remains, that rights, etc., are meaningless without remedies.

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The Constitution enumerates specific "liberties" and "rights" such as the Fifth Amendment right not to be "deprived of life, liberty, or property, without due process of law." This right, by necessary implication, ordains an "immunity" against encroachments. This Fifth Amendment immunity was construed to restrict the federal government, not the state governments; accordingly, following the Civil War, the 1868 Fourteenth Amendment remedied that defect by guaranteeing Due Process of Law against state encroachments (see below); in effect, after the Civil War, "these" United States" became "the" United States, abolishing not only slavery but all due-process violations nationwide.

As under English law, the American judicial branch — both federal and state — was specially entrusted to develop and secure the requirements of "Due Process of Law"; this was a term of "common law" art that historically included both substantive and procedural requirements. Article III, Section 1 of the Constitution ordained, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." This implied something so basic that it went without saying, namely, that the fundamental understandings of the pre-existing "Law and Equity" — as administered, in essence, by the previous English "judicial Power" — shall remain a central pillar of that Rule of Law by which the U.S. Constitution sought to secure the Blessings of Liberty.

Thus, Article I, Section 9 ordained, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Writ of Habeas Corpus was an ancient remedy to secure — to immunize against — unlawful arrest and unjust imprisonment, etc. The privilege against self-incrimination and the immunity from double jeopardy are other well-known privileges and immunities composing rights and liberties secured by the U.S. Constitution and the "law of the constitution" that predated it.

Article IV, Section 2, ordains, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, following the Civil War, the Fourteenth Amendment, Section 1, ordained: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." See Due Process of Law.

Furthermore, in language even more significant than that of the Fourteenth Amendment, the Ninth Amendment ordained: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." See Ordered Liberty.

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In the Declaration of Independence and the Articles of Confederation the people of the several states (former colonies) had rejected the sovereignty of a king and had formed an "imperfect" union whose defects were manifest; with their new Constitution, ratified in 1789, these several states formed "a more perfect Union" founded on the sovereignty of "the People" governed by their federal Constitution and their state constitutions which — like the "law of the constitution" under the unwritten "common law" of England which the the United States did not repeal — reflected a fundamental pre-existing truth undergirding government under law based on the Rule of Law.

This fundamental truth is best stated by A. V. Dicey in The Law of the Constitution (8th ed., 1915); this is the classic work on the "law of the constitution" in England, both before and after the American colonies gained their independence. Dicey defined the Rule of Law as meaning (a) "in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government"; (b) "equality before the law"; and (c) the recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals." (pp. 198-99)

What Dicey refers to above as "regular" law originated long ago, but was perhaps first "articulated" as "the law of the land" in the 1215 Magna Carta. The colonists who broke free from England sought, thereby, to secure "the rights of Englishmen" secured by "the law of the land" — which phrase was translated from the Latin of Magna Carta into subsequent English-language formulations as "the due process of law" (a phrase, as we have seen, that was set forth and then, subsequently, crucially, restated in the U.S. Constitution).

The former colonists' "more perfect Union" sought thereby to secure what, in their view, already "constituted" their liberties, rights, privileges, and immunities. Their "more perfect union" sought to "constitute" these rights more perfectly by creating a limited government subordinated to certain enumerated and other unenumerated human rights.

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The nature and scope of those liberties, rights, privileges, and immunities secured by the Constitution fundamental rights is a huge subject. In the United States, this subject necessarily involves examining (a) what it means to have a government of limited, enumerated powers in which the people are principals and their government(s) are, in effect, their agents, and (b) how to enforce — under the Constitution, the supreme law of the land — those unenumerated as well as enumerated rights, privileges, immunities, and related blessings of liberty which the people form their government to secure.

As suggested, those unenumerated rights, etc., are arguably too numerous to catalogue; some of them are so fundamental they "go without saying" (such as the presumption of innocence or the right to be let go unless found guilty "beyond a reasonable doubt"); these rights are the focus of the Ninth Amendment of the U.S. Constitution, which ordains: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

These rights, etc., have coevolved with free governments.

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The ultimate question must always remain: What gives governmental limitations on liberty their "binding quality" so that we, and our governments, are required — are conscience bound — to obey the law? "[I]f the term 'law' is to carry the moral implication that there is a duty to obey, then the requisite binding quality must go in before the name 'law' goes on," according to Professor Randy E. Barnett, in his book Restoring the Lost Constitution: The Presumption of Liberty (2004), p. 12.

I believe that the answer has to do with the reciprocity of obligations and rights. They are two sides of the same coin, whose realm is a mutual undertaking: the Rule of Law based on the Rule of Reason. Ordered Liberty coevolves with both, and is implied in the concepts "privileges and immunities" or "privileges or immunities" in the U.S. Constitution.

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John Sherman, Senator from Ohio, provided a good summary of this subject in 1872: "[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights ... of citizens of the United States, such as are recognized by the common law, such as are engrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered."

In determining the nature and scope of these fundamental rights, privileges, and immunities, said Sherman, the courts "will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers, to the Declaration of Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of [British judges] Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens." Barnett, Restoring, at p. 67.

Sherman should have used "rights" (above) instead of "powers"; perhaps. Except that it makes no difference if one accepts the "agency theory of government" in which individuals have unenumerated powers, and hence rights, and they delegate some of their powers (the "enumerated powers") to a limited government.

That government governs best which governs least ... by institutionalizing self-governance and accountability under the Rule of Law governed by the Rule of Reason.

(To be continued.)

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