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A "Kill Switch" For Cars? A Center for Regulatory Freedom Special Blog



This is the first in what will be a special series of blogs on regulation from the CPAC Foundation's Center for Regulatory Freedom. Written by one of our legal fellows, Karan Gupta, this piece is more in the style of a law review article than it is a traditional "blog"--and it will be something we will be encouraging our legal fellows to do more of.


Constitutional Challenges of the Advanced Impaired Driving Prevention Technology Regulation: A Critical Analysis of 49 CFR Part 571

by Karan Gupta


The “49 CFR Part 571 [Docket No. NHTSA–2022–0079] RIN 2127–AM50 Advanced Impaired Driving Prevention Technology” regulation calls for a system that “passively monitor(s) the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired.” After that the rule says that the technology must “prevent or limit motor vehicle operation if an impairment is detected.”


According to the rule “Impaired can mean anything that diminishes a person’s ability to perform driving tasks and increases the likelihood of a crash. Considering this, driver impairment would include drunk and drugged driving, but it could also include drowsy driving, distracted driving, driving while experiencing an incapacitating medical emergency or condition, or any other factor that would diminish driver performance…This document also presents three regulatory options for how the agency might mitigate driver impairment: blood alcohol content detection, impairment-detection (driver monitoring), or a combination of the two.


This regulation violates the 4th amendment, 5th amendment and 9th amendment.


THE 4TH AMENDMENT

The Original Meaning of the Fourth Amendment Requires the Use of Positive Law

This regulation violates the 4th amendment. In the search and seizure case Boyd v. United States, Justice Joseph Bradley wrote that the “constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case” and “apply to all invasions on the part of government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”


Under the original meaning of the fourth amendment, positive law would be used to determine whether something was a search or not. The original remedial structure of the Fourth Amendment shows that this approach would be faithful to the original meaning. When the Fourth Amendment was ratified, the only mechanism to enforce rights against unlawful searches and seizures was through private law remedies like trespass and false imprisonment actions. There were no remedies like the exclusion of evidence and the S1983 or Bivens lawsuit. “Instead, the process of vindicating Fourth Amendment rights began by alleging that a government official had violated a legal duty arising out of general law. The official would then attempt to invoke official immunity as a defense, and this could then be challenged on grounds that the officer had acted unreasonably.”

According to Professor Richard Re, “Early in American history—many decades before

the modern category of constitutional criminal procedure was invented—unreasonable searches and seizures were generally viewed as a species of tort in the same legal category as trespasses perpetrated by private parties.”


For example, in a case where a government agent lacked a specific, particularized warrant, the citizen would claim “that a government agent was a mere trespasser, as any normal person would be if they searched private property without consent.”


The government agent would claim that “no, he should be given the benefit of the special governmental exemption from standard moral rules, or in other words, he deserves the special immunity conferred upon state actors who commit presumptively immoral property violations.”

After this the citizen would respond that such exemptions are only given when the state actor has acted in conformity with the Fourth Amendment, which the state actor did not do in the current case as he as he did not have a specific, particularized warrant. Since the state actor did not act in compliance with the 4th amendment, he turned himself into a private actor and stripped “himself of the cloak of immunity derived from acting in conformity with the law.” In other words by conducting a search and seizure without a specific, particularized warrant, he has performed an unreasonable search or seizure. This means he has not acted in conformity with the fourth amendment and has converted himself into a private actor. For this reason, Fourth Amendment violations were adjudicated as private-law tort claims. In converting himself into a private actor, “the state actor became someone who, according to law and custom, had gone where he wasn’t allowed to go and done what he wasn’t allowed to do.” As Professor Re writes, the original Fourth Amendment “ensured that ‘unreasonable’ federal officials would be treated just like private common law trespassers.”


Positive law presents “where non-state actors are allowed to go and what non-state actors are allowed to do.” For example, positive law answers or could answer the questions of whether non-state actors can fly a drone over someone else’s yard, secretly record an individual’s conversation in a phone booth, gather a person’s DNA or attach a GPS monitor onto someone else’s car. Positive law also “ascertains if an individual has been falsely imprisoned, harassed, stalked, or had his privacy invaded.” If a state actor breaks one of these rules, in order for it to be legitimate, there must be something to differentiate it from a nonstate individual (such as a thief) breaking those rules. The reasonableness and warrant requirements of the 4th amendment are what differentiate the two; these are the source of legitimacy. These requirements go into force immediately when a state actor has done something which a nonstate actor is barred from doing, specifically violating positive law.


Governments have special privileges and powers that other individuals in society do not. These powers act like exemptions to the general rules of conduct that are applicable to all people in almost every circumstance. For example, “don’t steal, assault, murder, kidnap, trespass, extort, or break into and search someone’s property.” In order to make sure that government officials do not misuse or exploit these “moral exceptions”, the Constitution imposes many restrictions on “when, where, and how those officials can use their powers.”


Positive law can help identify when a “search” has occurred. This would keep in line with the original meaning of the fourth amendment. As Justice Gorsuch says in his Carpenter concurrence, “In the context of the Takings Clause we often ask whether those state-created property rights are sufficient to make something someone’s property for constitutional purposes. A similar inquiry may be appropriate for the Fourth Amendment.” The Takings Clause presupposes the existence of private property through the prohibition on the taking of private property except for public use and just compensation. The states were the pre-existing sovereigns who joined to create the constitution, as a result they define property law. The court has said, “Because the Constitution protects rather than creates property interests…the existence of a property interest is determined by reference (to) existing rules or understandings that stem from an independent source such as state law.”


As positive law has delineated new kinds of private property that were unheard of at the founding, the courts have incorporated these changes. For instance, “the Court has extended the Takings Clause to cover a materialman’s lien established by Maine law, real estate liens, trade secrets, and valid contracts.” Expanding the takings clause would be adhering to the original intent.


Constitutional scholar, Randy Barnett wrote, “More often, a vague term is chosen because drafters realize that the resolution of a future problem will depend on specific factual circumstances that cannot be specified in advance and therefore must be decided by others. Though they cannot determine the outcome of these future disputes with a precise rule, the drafters may still wish to guide or limit the discretion of these future decision makers and attempt this by deliberately using vague, though not vacuous, language. Because its language is deliberately vague in places, the Constitution can be applied to far more situations and changed circumstances than had every provision been expressed with rule-like precision.”


In Ex Parte Jackson the court said , “the constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed to inspection, wherever they may be.” Gorsuch reasoned, “Just because you entrust your data- in some case, your modern-day papers and effects-to a third party may not mean you lose any Fourth Amendment interest in its contents.”


In United States v. Ackerman, Gorsuch found that the government illegally executed a warrantless search by opening an individual’s emails obtained by the email service provider because this was a “trespass into the defendant’s effects.” “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine and, indeed, many courts have already applied the common law’s ancient trespass to chattels doctrine to electronic, not just written, communications.”


Justice Scalia used this same logic in Kyllo v US, where he found a thermal imaging of a house to find marijuana to be a search. Thermal imaging definitely did not exist during the founding era.


When the court applied the Takings Clause to “the interest accruing on an interpleader fund deposited in the registry of the county court,” the Court said that “this is the very kind of thing that the Taking Clause of the Fifth Amendment was meant to prevent. It is unlikely, that an item as specific as interest on a bank account was “the very kind of thing” that the Framers intended the Takings Clause to prevent. What the Court was trying to convey was that the takings clause was meant to stop “the more abstract concern of turning private property into public property without compensation.”


This is similar to the 4th amendment, state actors are given a privilege that ordinary individual’s do not possess, the ability to take someone’s property by compulsion for a public use. In order for this taking to not be mere theft for personal gain, certain strictures have to be complied with. In both the takings clause and 4th amendment, if certain constraints are followed, “a presumptive violation of general moral rules can become a legitimate state action.”

In 1736, Famous English jurist Sir Matthew Hale asserted the same proposition. He said that because general warrants were illegitimate, they would not give state officials any exemption from general property rules. He stated “ searches made by pretense of such general warrants give no more power to the officer or party than what they may do by law without them.”


Additionally, the 4th amendment applies even when property is not completely owned by an individual. In his dissent in Carpenter v. US, Gorsuch indicated his agreement with Byrd’s counsel, “One, a property law theory, essentially, as I understand it, that possession is good title against everybody except for people with superior title. And – and I understand that. That’s an ancient common law rule. I can go back and find that in treatises all the way back to Joseph Story.”


It is unquestionable that a non-state actor would not be allowed to do this. It does not matter whether the data is in physical papers or whether the data is stored digitally. A warrant is needed which is specific and particularized. This regulation does not even mention warrants.

Specific, Particularized Warrant is needed for Each Particular Search

The founders were influenced by three English cases in their rejection of general warrants: Entick v Carrington, Wilkes v Wood and Leach v Money.

Wilkes v Woods

In 1762, John Wilkes founded a political weekly called the North Briton in order to counter the progovernment publication, the Briton. In May 1762, John Stuart assumed the post of first lord of the treasury and leader of the House of Lords. Stuart decided to enter negotiations with the French that resulted in the end of the Seven Years War. The preliminaries were signed that year in Fontainbleau, France. When the agreement was first heard of, the journal said “Almost everything won from the French by the wisdom or valour of a Whig administration, these vipers, bred and nourished in the bosom of our country, sacrificed to France from a lust of power, and the interested views of their faction, ever propitious and favourable to the designs of the ancient enemy of this kingdom.”


When the terms were formally published, Wilkes wrote, “They are of such a nature, that they more resemble the ancient treaties of friendship and alliance between France and her old firm, ally Scotland, than any which have ever subsisted between that power, and her natural enemy, England… Almost all the glorious advantages we had gained over our most restless and perfidious foe, our ministers have given away…More lamentably, [t]he French king, by a stroke of his pen, has regained what all the power of that nation, and her allies, could never have recovered; and England, once more the dupe of a subtle negociation [sic], has consented to give up very nearly all her conquests, the purchase of such immense public treasure, and the blood of so many noble and brave families.”


When George Grenville took over from John Stuart, he became the target of Wilke’s derision.

Wilkes wrote that the North Briton, “has been steady in his opposition to a single, insolent, incapable, despotic minister; and is equally ready, in the service of his country, to combat the triple-headed, Cerberean administration, if the SCOT is to assume that motley form.” Wilkes attacked Grenville for authorizing the treaty and sarcastically claimed that Grenville had authorized it because Grenville thought that it had “saved England from the certain ruin of success” and had thrown away any immediate advantages of “trade or territory” to England’s “inveterate enemies.” He wrote that the Crown had sunk to prostitution.


Grenville signed a general warrant three days later that instructed Carrington “to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, The North Briton,” and “to apprehend and seize [them], together with their papers, and to bring in safe custody before me, to be examined.” All of Wilke’s papers were taken out of drawers and along with his pocketbook were put into a sack. Wilkes challenged the warrant , claimed that it was illegal and brought “a claim of trespass and false imprisonment.”

The fact that Wilkes’ papers had been seized was among the most serious of the charges made, “for other offences, an acknowledgement might make amends; but for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made.” The counsel said, “English law never admits of a general search-warrant.” Beyond the invasion of privacy, there was a significant risk “that some papers, quite innocent in themselves, might, by the slightest alteration, be converted to criminal action.” The warrant was signed three days before information that supported its execution was received by Halifax. It did not name Wilkes, it did not mention specific items to be seized and it did not mention particular places to be searched. In Glynn’s view, it was “an outrage to the constitution.” The jury returned a verdict for Wilkes and awarded 1000 pounds in damages.


Entick

In 1755, John Entick, a self-styled reverend and schoolteacher joined with satirist John Shebbeare and publisher John Scott to launch a weekly essay paper called, the Monitor. This was “to commend good men and good measures, and to censure bad ones.” The aim was to arouse “that spirit of LIBERTY and LOYALTY, for which the British nation was anciently distinguished, but which was in a manner lulled asleep by that golden opiate, which weak and wicked Ministers for many years, had too successfully tendered to persons of all ranks, as a necessary engine of government.” The paper treated the political elite with this kind of intense derision. Consequently, George Montagu Dunk started a campaign against it. On November 6, 1762, he signed a warrant that identified Entick as the person responsible and decryed the paper’s “gross and scandalous reflections and invectives upon his majesty’s government, and upon both houses of parliament.” Dunk ordered King George III’s messengers to bring Entick’s person and papers to him. Entick then brought a trespass suit.


Chief Justice Charles Pratt, distinguished between the current warrant for seditious libel and the standards of a specific warrant. Under a specific warrant “[t]here must be a full charge upon oath of a theft committed.” The warrant had to be executed in the presence of an officer of the law. In instances, where a private individual suspected criminal activity, he would have to provide evidence under oath to a constable. The constable would then determine whether grounds for suspicion was reasonable or not. In the present case, “nothing had been described” and the target of the search was not distinguished. Pratt said, “No charge is requisite to prove, that the party has any criminal papers in his custody[;] no person present to separate or select[;] no person to prove in the owner’s behalf the officer’s misbehavior.” General searches created images of the Star Chamber. The Star Chamber was an English court that was in operation in the 16th and early 17th centuries till Parliament abolished it in 1641. It had become a political tool that was infamous for secret proceedings which were in violation of the rule of law and was “seen as representing the worst exercise of arbitrary power.” Pratt made an effort to contrast what happened in the case of the general warrant for seditious libel from the standards adopted for a specific warrant in criminal law. In the second-mentioned “there must be a full charge upon oath of a theft committed.” A warrant has to be executed in the presence of an officer of the law. When a private person was suspicious of criminal activity, he had to give evidence to a constable under oath. The constable then decided whether the grounds for suspicion were reasonable or not.


Leach v Money

In this case, a general warrant was served on the alleged printer of North Briton no. 45, Dryden Leach. Leach was arrested, his home was searched and he was detained for four days. Leach brought suit “against the King’s messengers for breaking and entering his home, for seizing his person and papers, and imprisoning him for four days”.

Leach’s counsel, John Dunning said the generality of the warrant made it invalid. The document described the offense but did not name any individual responsible. “Here is no probable cause, nor any reason for justifying the officer under a probable cause. It is not like the cases of apprehending traitors or felons. Here is only information from one of their own body, ‘that the author of the paper had been seen going into Leach’s house; and that Leach was the printer of the composition in general; not of this particular paper.’” The counsel also stated that if a warrant could be issued that instructed the executioners to find the person responsible for a particular crime without naming the warrant’s target, “[s]uch a power would be extremely mischievous, and might be productive of great oppression… To ransack private studies in order to search for evidence, and even without a previous charge on oath, is contrary to natural justice, as well as to the liberty of the subject… To search a man’s private papers ad libitum, and even without accusation, is an infringement of the natural rights of mankind.” Judge Mansfield (who presided over the case) agreed with this assessment. He added that an important error was the lack of presence of a third party, who would stand in discernment of evidence to “authorize arrest, search and seizure...The magistrate ought to judge; and should give certain directions to the officer… [Sir Matthew] Hale and all others hold such an uncertain warrant void: and there is no case or book to the contrary.” The judgement was upheld in favor of Leach.


Paxton

In the Paxton case, John Otis argued on behalf of the Society for Promoting Trade and Commerce within the Province. The surveyor general of the customs Lechmere had filed a petition against the society. In 1760 King George II passed away. When a monarch died all writs of assistance expired after six months. April 1761 was the deadline for renewal, this gave an opening for individuals who opposed this instrument. The Society for Promoting Trade and Commerce within the Province petitioned the Massachusetts Bay Superior Court to hear its case. Otis’s declamation of general warrants was immensely influential. John Adams wrote “Otis was a flame of Fire!” (Otis had) “breathed into this nation the breath of life.” He kindled the Revolution: “Every man of an crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writs of Assistants.” Legal tracts in both America and Britain said that Otis’s argument was “a central movement in the shift to independence.” According to one 19th century law dictionary, “The issuing of [writs of assistance] was one of the causes of the American republic. They were a species of general warrant, being directed to all and singular justices, sheriffs, constables and all other officers and subjects, empowering them to enter and search any house.” The dictionary noted that they had stopped being used “owing to the eloquent argument of Otis before the supreme court of Massachusetts against their legality.” Another dictionary noted, “The use of the writ of assistance was one of the causes of the revolt of the American colonies.” Modern scholars also say that Otis’s argument laid “the foundation for the breach between Great Britain and her continental colonies.”


Otis said, “I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.” In his view, the writ was “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book.” According to Otis, only specific warrants were legal. This was the case even under the 1662 Act which conferred power on a justice of the peace to search for stolen goods. Otis concluded that therefore “the writ prayed for in this petition being general is illegal.”


In Otis’s view there were many problems with general warrants. Since they were directed against all individuals , “everyone with this writ may be a tyrant.” Additionally, it never expired and did not require any return. Anyone carrying a writ document could force others to assist him, this meant that it did not just limit the freedom of the target but also of other individuals.


Paxton’s Case is a colonial case that is illustrative of the rejection of the general warrants. In his argument, Otis referenced Coke, Hale and Magna Carta. He also mentioned the Crown’s crossing the limits of government which had led to the execution of Charles I and the ousting of James II. His argument shows that the framers were very aware of the great English legal theorists and their excoriation of general warrants.


Coke’s Institutes and Hale’s History of the Pleas of the Crown had a strong influence on the founding fathers. Colonial newspapers provided enthusiastic coverage of the Entick and Wilkes cases.


The colonists were very aware of the rejection of general warrants in Great Britain and in Paxton’s Case. They “viewed promiscuous search and seizure with ever-deeper antagonism.”


British Attorney General William DeGrey’s ascertained that the 1696 Navigation Act had not extended the writs of assistance to New England and Parliament’s subsequent introduction of a new statutory provision in response. The name of this statutory provision was the Townshend Revenue Act of 1767.


The act had a provision that gave customs officers the authority “to enter houses or warehouses, to search for and seize goods prohibited to be imported or exported . . . or for which any duties are payable, or ought to have been paid.” The legislation gave the uppermost court in each colony the power to issue writs of assistance to customs officers. The statute did not mandate that the writs “incorporate general terms of search and seizure.” In practice, when colonial courts granted writs, they had a tendency to make them specific since they rejected general warrants as illegitimate.” The practice of colonial courts embraced Otis’s stance.


The American legal treatises of 1765-1776 embraced the perspective of English legal scholars along with Otis’s perspective in Paxton’s case.


In his Letters from a Pennsylvania Farmer against the Townshend Acts, John Dickinson wrote, “By the late act the officers of the customs [were] impowered to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America to search for or seize prohibited or unaccustomed goods, etc. on writs granted by the superior or supreme court of justice, having jurisdiction within such colony or plantation respectively…The greatest asserters of the rights of Englishmen, have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.”


In 1764, English journalist and political writer Almon similarly condemned general warrants. He wrote, “[I]t would be (as Hawkins says) extremely hard, to leave it to the discretion of a common officer to arrest what persons, and search what houses he thinks fit: and if a Justice cannot legally grant a blank warrant for the arrest of a single person, leaving it to the party to fill it up, surely he cannot grant such a general warrant, which might have the effect of a hundred blank warrants…In one word, no warrant whatever, in any case or crime whatever, that names or describes nobody in certain, is good, or can be justified in law, in any circumstances whatever.”


Among their (first continental congress) chief concerns was that “[t]he Commissioners of the Customs are empowered to break open and enter houses without the authority of any Civil Magistrate, founded on legal information.”


History of Generalized Warrants

In March 1628, Coke wrote “No free man ought to be committed but the cause must be showed in particular.. . . . It is against reason to send a man to prison and not to show the cause.”


In his ‘Institutes’, Coke wrote “One or more Justice or Justices of Peace cannot make a warrant upon a bare surmise to break any mans house to search for a Felon, or for stoln goods, for they being created by Act of Parliament have no such authority granted unto them by any Act of Parliament.” This meant the Crown had to first produce evidence that an individual had committed a crime. What was particularly unsavory about general warrants was that they preserved for the crown “the particulars of suspicion, making them vulnerable to abuse”. Under a specific warrant, the Crown would have to produce evidence in open court.


Coke also convinced parliament to include a prohibition on general warrants in the 1628 Petition of Right produced by parliament which imposed restrictions on the Monarch’s power.


Famed English judge Mathew Hale wrote “[A] general warrant to search in all suspected places is not good, but only to search in such particular places, where the party assigns before the justice his suspicion and the probable cause thereof, for these warrants are judicial acts, and must be granted upon examination of the fact… [T]herefore I take those general warrants dormant, which are made many times before any felony committed, are not justifiable, for it makes the party to be in effect the judge; and therefore searches made by pretense of such general warrants give no more power to the officer or party, than what they may do by law without them.”


Even if a warrant had been attained for the collection of the data from cars and their drivers, this would not be a legal warrant. This is because it would be a general search as the warrant would apply to every car and its driver rather than a particular car and its driver.


Parliament sent agents of the crown to the Tower of London because of their conduction of searches against its members. In their view “certain general warrants (were) dormant (because they acted) against law and the liberties of the subject.” In 1681, Parliament listed the following as one of the reasons for the impeachment of Chief Justice William Scroggs, he had “granted divers general warrants for attaching the persons and seizing the goods of his majesty’s subjects, not named or described particularly in the said warrants, by means whereof many have been vexed, their houses entered into, and they themselves generally oppressed contrary to law.”


Parliament’s actions were indicative of the growing public resistance to general warrants. After Entick, Parliament passed a statute that condemned the use of general warrants for libels. ,


During debate, Parliament changed “not warranted by law” to “illegal” and added that if it was executed on the person of a House member, it would be a breach of the House’s privilege. Three days after this, the resolution was amended “to make general warrants universally” illegal except for “specific cases provided via statute.” As the use of writs by the Crown went on, Parliament’s concern increased. One member in 1766 said “a general warrant is such a piece of nonsense as deserves not to be spoken of, being no warrant at all, and incapable of answering any one purpose, in any case whatever, that a legal warrant would not better attain.” He said that even if there was ever a question of the legality of general warrants, it was now settled that there was no question of the illegality of general warrants under the common law.


Interestingly William Blackstone (whose beliefs regarding natural rights and higher law were the complete opposite of Coke’s) agreed with Coke. In his Commentaries on the Laws of England, he wrote “Sir Edward Coke indeed hath laid it down, that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found: and the contrary practice is by others held to be grounded rather upon connivance, than the express rule of law; though now by long custom established…[A] general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for [its] uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion…”


In commenting on the Constitution’s lack of a Bill of Rights, Patrick Henry wrote, “I feel myself distressed because the necessity of securing our personal rights seems not to have pervaded the minds of men; for many other valuable things are omitted:—for instance, general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited.” Henry was not alone, other individuals in Virginia also had those concerns. Consequently, the state convention appointed the Wyth Committee which proposed the adoption of a new bill of rights, envisioned to be like a revised list of the entitlements in the Virginia Declaration of Rights. This was unanimously approved and sent to the federal legislature with the ratification of the Constitution. The ratification document said that “there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people.”


The text proposed by Virginia included a right against unreasonable search and seizure. In order to guarantee this right, the proposed text did not only ban general warrants but also specific warrants that did not possess the requisite particularity. In Article XIV of the document, it said: “That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.” If the bill of rights had not been guaranteed, it is debatable whether Virginia’s delegates would have voted to ratify the US constitution. Even after the passage of a draft bill of rights, the vote in favor was only 89-79.


In New York, the ratification vote was even more narrow: 30-27. There was intense public debate surrounding the convention about the Constitution’s lack of a prohibition on general warrants. An individual writing as a “Son of Liberty” in the New York Journal in the November of 1787 listed “a few of the curses which will be entailed on the people of America, by this preposterous and newfangled system, if they are ever so infatuated as to receive it.” The fourth listed item said: “Men of all ranks and conditions, subject to have their houses searched by officers, acting under the sanction of general warrants, their private papers seized, and themselves dragged to prison, under various pretences, whenever the fear of their lordly masters shall suggest, that they are plotting mischief against their arbitrary conduct.”

The convention took heed of the critique and wrote the following statement: “That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.” This was not just entered as an accompanying document but as a part of their formal ratification. New York also declared that it was agreeing to the proposed federal constitution only on the condition that there would be language that explicitly protected against promiscuous search and seizure inserted in addition to other things listed in the ratification instrument.


Virginia and New York were battleground states, one fourth of the 3.9 million people in the country resided in either of the states. Their ratification was needed to adopt the constitution.


Rhode Island used the same language as New York in its ratification document except that “person” was replaced with “freeman.”


In Pennsylvania, the Anti-Federalist Samuel Bryant was concerned about the lack of prohibition against general warrants. In his letter to the Freemen of Pennsylvania he contrasted the protection of the Pennsylvania state constitution to the lack of protection in the proposed federal constitution, “Your present frame of government secures you a right to hold yourselves, houses, papers and possessions free from search and seizure…Therefore warrants granted without oaths or affirmations first made, affording sufficient foundation for them, whereby any officer or messenger may be commanded or required to search your houses or seize your persons or property, not particularly described in such warrant, shall not be granted.”


The North Carolina state convention’s proposed declaration of rights included the statement, “That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and property…All warrants, therefore, to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.”


An Individual from Plymouth County Massachusetts named Abraham Holmes contrasted the protection in the state constitution from the lack of protection in the proposed federal Constitution. He said that the framers of the state constitution had taken “particular care to prevent” the issuance of general warrants and he could not understand “why it should be esteemed so much more safe to intrust Congress with the power of enacting laws, which it was deemed so unsafe to intrust our state legislature with.” Ultimately, Holmes voted against ratification.


Reasonable means Specific, Particularized Warrants

In the early days of the Republic, state declarations and constitutions made it clear, that “the use of general warrants, in particular, ran contrary to the reason of the common law.” The colonists’ opposition to the crown’s amassing of too much power drove them to enshrine it in a written guarantee against “promiscuous search and seizure.”


The original meaning of Unreasonable search referred to a search against the reason of the common law. “The common law specified the background legal rights that people held against other people-including agents of the government.”


Warrantless entry, along with general warrants “violated the reason of the common law and therefore were unreasonable.” The clause was not meant to refer to reasonable in a relativistic sense or an examination of what is more or less reasonable. The “basic idea was that the principles inherent in common law had legal force. That which was with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal. General warrants, being against the reason of the common law, were thus unlawful, or void.”


This original meaning was a reflection of the common-law approach embraced by English scholars. John Adams was familiar with and had read multiple English legal treatises, including but not limited to Coke and Hawkins’s Pleas of the Crown. In Dr. Bonham’s Case (1610) , Coke had said that a statute that was “against common right and reason” was void. This meant it was void if it was in violation of the basic principals of common law. In 1628, in Parliament Coke said general warrants were “against reason.” At that point in time, unreasonable meant against reason. When referring to Dr. Bonham’s Case, Locke made “against reason” into “unreasonable.”


A good example is the Massachusetts state constitution. John Adams did not just look to Coke for his understanding of general warrants as against reason and consequently unreasonable. Adams also looked to Otis. In his abstract of Otis’ arguments’ notes it is mentioned that Otis makes a reference to writs of assistance as being “against reason.” In the Massachusetts constitution this was made into “unreasonable.” In his more lengthy notes, Adams wrote, “An Act against the Constitution is void: . . . and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.” After this he cited the page of Coke’s opinion in Dr Bonham’s case where Coke said that an act was “void” if it went “against common right and reason.” Succeeding this, he wrote the “reason of the Common Law [is] to control an Act of Parliament.”


Legal tracts of the era also connected unreasonableness (as against the reason of the common law) with illegality. In 1751, A New Law-Dictionary wrote that common law “[i]s founded upon Reason; and is said to be the Perfection of Reason, acquired by long Study, Observation and Experience, and refined by Learned Men in all Ages…It has been observed [that Reason] is the very Life of the Law; and that what is contrary to it, is unlawful: When the Reason of the Law once ceases, the Law itself generally ceases; because Reason is the Foundation of all our Laws.” An early 19th century tract wrote, “Reason is called the soul of the law; for when the reason ceases, the law itself ceases.”


A Dictionary of the English Language by Samuel Johnson shows that “reasonable” was understood by people in that period as “agreeable to reason”, this formulation “reflected the meaning consistent with the reason of the common law.” “Reasonable” gave a perception of being logical and consistent in contrast to “unreasonable” which meant “illogical” or “inconsistent with the common law-making the action illegal.” According to Samuel Johnson’s dictionary “unreasonable” meant “exorbitant or claiming or insisting on more than is fit.” Exorbitant meant “deviating from the rule established.” This shows that unreasonable “carried a quality” that meant breaching the borders of a settled rule, in this instance, this was the common-law tenant that made general warrants void or invalid. “Reasonable” did not refer to a matter of degree but rather whether the standards were met or not.


Legal tracts also found that general warrants were “unreasonable” and thus necessarily a violation of common law. An example of this is The Law of Arrests which was published in 1742 in London, it noted “the Unreasonableness, and seeming Unwarrantableness of [general warrants].” This language matched Johnson’s Dictionary’s (which was the main English lexicon of the era) definition of “unreasonable” as “not agreeable to reason.”


Statutes at the time of the Founding had to be interpreted in a way consistent with common law. In a 1774 case over access to a navigable river, a court in Baltimore County Maryland wrote, “The surest construction of a statute is by the rule and reason of the common law.” In 1797, the Supreme Court of Virginia said that the rule was “that statutes were to be interpreted as closely as possible to ‘the reason of the common law.’” In 1804, Superior Courts of Law and Equity of North Carolina also mentioned the rule that statutes had to be interpreted “as near to the rule and reason of the common law as may be.”


Another good example is the Maryland state constitution which explains what lies outside acceptable bounds: “All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure.” Warrants that were not specific enough, breached the limits of the common law. This provision protected against not just warrantless search and seizure but also against searches and seizures based upon a warrant which was not particular enough. “Warrantless entry, and entry under general warrants, defined unreasonable search and seizure.”


Partial Ownership

In Byrd v US, Byrd was pulled over by the police when driving a car his fiancé had signed a rental agreement for. Since it was his fiancé who had signed a rental agreement, the troopers concluded they did not need his consent to search inside the trunk. When they looked inside the trunk, they discovered drugs. During oral argument Gorsuch indicated his agreement with Byrd’s counsel, “One, a property law theory, essentially, as I understand it, that possession is good title against everybody except for people with superior title. And – and I understand that. That’s an ancient common law rule. I can go back and find that in treatises all the way back to Joseph Story.” Even if one accepted the argument (for hypothetical purposes) that the car company had superior title over the driver’s body data than the driver, this would not matter. This is because possession would be good title against everybody except the car company. This would mean the government would need a specific, particularized warrant.\


Bailment

Gorsuch proposed using a bailment to partially confront the issue of the flawed third-party doctrine. “A bailment is the delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose” and “normally owes a legal duty to keep the item safe.”


He referred to Ex parte Jackson where the Court said “[t]he constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” Gorsuch then added, “[j]ust because you entrust your data—in some case, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents.” When he served on the US Court of Appeals for the Tenth Circuit, Gorsuch said that the government had wrongly executed a warrantless search by opening an email which it had obtained from the defendant’s email provider. He reasoned that this was because opening the message “constituted a trespass into the defendant’s effects.” Gorsuch mentioned the court’s language in Riley regarding how the “use of technology is functionally compelled by the demands of modern day life” in order to argue that “stor[ing] data with third parties may amount to a sort of involuntary bailment.”


Additionally, Gorsuch “doubt[ed] that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right.” The fact that “tenants and resident family members without legal title still have standing to complain about searches of the houses in which they live” shows how this principle is already reflected in 4th Amendment law. This would mean that the government would have to get a specific, particularized warrant irrespective if the body data was given voluntarily and stored with third parties.


This regulation violates the 4th Amendment

Use of the alcohol or impairment detection technology would be akin to the thermal search in Kylo v US. Additionally, obtaining data on an individual’s body would be akin to seizing physical papers with body data on it. In other words, the data obtained through sensors is equivalent to modern day papers as Justice Gorsuch said in reference to data in Ex parte Jackson (data) “in some case, your modern-day papers and effects.”


Positive law shows that such a warrant is required. It would not be legal for a private individual to put devices in another individual’s car to monitor his car and body without consent. In this case, even if a warrant was obtained, it would still not be legal. This is because such a warrant would be general because it would apply to all motor vehicles and motor vehicle drivers rather than specific vehicles or individuals. The government would have to obtain a separate, particularized warrant for every separate vehicle and individual in order for the warrant to be “reasonable” and thus constitutional.


It would not make a difference if the data was only partially owned by the driver, as Gorsuch said in Byrd v US, “Possession is good title against everybody except for people with superior title.” A specific, particularized warrant would still be required.


It does not matter that the data is given to a third party. In Riley Gorsuch mentioned the way in which “use of technology is functionally compelled by the demands of modern day life.” He then used this to argue that “stor[ing] data with third parties may amount to a sort of involuntary bailment.” You do not have to have complete ownership or exclusive control of the data for the assertion of a fourth amendment right either. The present case is extremely similar to the Court of Appeals case where Gorsuch ruled that opening an email provided by the defendant’s email provider violated the 4th amendment because the government had not obtained a warrant. Gorsuch had this said constituted a “trespass into the defendant’s effects.” Looking into an individual’s car or body data seems to be a similar scenario.


THE 9TH AMENDMENT

The 9th amendment Protects the Unenumerated, Natural Right to Privacy


In Griswold v. Connecticut, Justice Arthur Goldberg’s concurrence held that the right to privacy was protected by the 9th amendment. “To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


Cato’s Letters by Trenchard and Gordon were one of the most important source for the colonists. These letters demonstrate that privacy was a natural right, “By liberty, I understand the power which every man has over his own actions, and his right to enjoy the fruits of his labor, art and industry, as far as by it he hurts not the society, or any members of it, by taking from any member, or hindering him from enjoying what he himself enjoys… Every man is sole lord and arbiter of his own private actions and property...no man living can divest him but by usurpation, or by his own consent.”


“It is plain, that such busy care and officious intrusion into the personal affairs, or private actions, thoughts, and imaginations of men, has in it more craft than kindness; and is only a device to mislead people, and pick their pockets, under the false pretence of the publick and their private good.”


“And it is as foolish to say, that Government is concerned to meddle with the private Thoughts and Actions of Men, while they injure neither the Society, nor any of its Members. Every Man is, in Nature and Reason, the Judge and Disposer of his own domestick Affairs; and, according to the Rules of Religion and Equity, every Man must carry his own Conscience. So that neither has the Magistrate a Right to direct the private Behaviour of men; nor has the Magistrate, or any body else, any manner of Power to model People's Speculations, no more than their Dreams. Government being intended to protect Men from the Injuries of one another, and not to direct them in their own Affairs, in which no one is interested but themselves; it is plain, that their Thoughts and domestick Concerns are exempted intirely from its Jurisdiction. ”


The antifederalists were opposed to the ratification of the constitution partly because it lacked a bill rights. The Federalists said that a bill of rights was not needed because the government had limited and enumerated powers and would not have the power to violate the peoples’ rights. The Federalists also said that a bill of rights would be dangerous because it would imply that any rights not enumerated would be surrendered to the government. Hamilton asked, “Why for instance should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”


In order to avoid this danger while adding a Bill of Rights to the constitution, the ninth amendment was added.


James Madison in referring to the precursor of the ninth amendment said, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”


The rights retained by the people in the 9th amendment refer to natural rights. Roger Sherman’s draft of a bill of rights read: “The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States.” Some of these rights were eventually enumerated in the Bill of Rights. Other rights like the right to acquire property and pursue happiness, and safety were left unenumerated. The ninth amendment explains that just because some powers have been delegated to the government and some rights are enumerated, this does not mean that other rights were (as Madison said) “assigned into the hands of the General Government, and were consequently insecure.”


Representative Theodore Sedgwick was critical of the House Select Committee’s inclusion of the right of assembly and said that “it is a self-evident, unalienable right which the people possess, it is certainly a thing that would never be called into question; it is derogatory to the dignity of the House to descend to such minutiae.” Egbert Benson responded, “The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” Sedgwick then responded, “if the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.... “In his view these rights were on the same plain as the right of assembly which was “self-evident” and “unalienable”, and the Constitution should not be cluttered with a theoretically infinite list of trifling rights that “would never be called into question” and “were not intended to be infringed”. This argument ‘implicitly assumes that the ‘self-evident, unalienable’, and inherent liberty rights retained by the people are unenumerable because the human imagination is limitless. “It includes the right to wear a hat, to get up when one pleases and go to bed when one pleases, to scratch one's nose when it itches (and even when it doesn't), and to take a sip of Diet Coke when one is thirsty.”


According to Constitutional scholar, Randy Barnett, this implies a ‘presumption of liberty’. Otherwise judges would be able to simply make up whatever rights appeal to them. “This presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function...” The ninth amendment can be seen as placing the burden on the government “to establish the necessity and propriety of any infringement on individual freedom”. The burden is on the government to show “why its interference with liberty is both necessary and proper.”



There is a presumption of liberty in First Amendment cases for example. The court has held to First Amendment to place a serious burden on the government to justify any of its actions that impose restrictions on the natural right of free speech. This does not mean that first amendment has been interpreted by the court to prohibit literally all restrictions on the freedom of speech. Ancient common law torts form boundaries past which “the rightful exercise of free speech may not go.” If speech is fraudulent, this means it is wrongful and can be prohibited, not just regulated. However, under the first amendment there is a presumption in favor of any rightful speech that is within the limits of those common law boundaries.


If a specific action infringes upon the rights of others, this does not qualify as a rightful exercise of freedom. This is license rather than liberty. For this reason, prohibiting this action, even though it restricts the individual’s freedom to do what he wants does, does not infringe upon the rights retained by the people. Rather, the prohibition protects the liberty rights of others. Second, when the rightful exercise of freedom involves more than one person, it can be “regulated” or made regular to facilitate its exercise and, if necessary, to protect the rights of others. A regulation of liberty is not an improper infringement of liberty if a legal system merely says that, to obtain its protection, contracts or other transactions must take a certain form (if such a regulation is also found to be necessary).


In short, laws that are necessary to prohibit wrongful or regulate rightful activity would satisfy the Presumption of Liberty. Laws that prohibit or unnecessarily regulate rightful behavior would not.


Randy Barnett writes, “The Ninth Amendment was written at a higher level of abstraction or generality—that of natural liberty rights—than any specific list of liberties and deliberately so. The Ninth Amendment… referred to natural rights because it was impossible to specify them all in advance. Any approach that overlooks this in favor of particular historically situated liberties runs afoul of original meaning” …Our actions must remain within proper jurisdictional bounds but, within those bounds, our rights are as varied as our imaginations. Given this conception of rights, it is impossible to specify in advance all the rights we have.” In the Framers’ view it was dangerous to enumerate any rights because the people’s rights were boundless. “Rights are unenumerable because rights define a private domain within which persons have a right to do as they wish, provided their conduct does not encroach upon the rightful domains of others. As long as their actions remain within this rightful domain, other persons-including the government-should not interfere. Because people have a right to do whatever they please within the boundaries defined by natural rights, this means that the rights retained by the people are limited only by their imagination and could never be completely specified or enumerated.”


James Wilson (a delegate to the Constitutional Convention and future Associate Justice of the Supreme Court) said, “ there are very few who understand the whole of these rights. All the political writers, from Grotious and Puffendorf down to Vattel, have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens. … Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.”


This means the original meaning of the rights retained by the people is not confined to specific liberties identified by originalist materials. In other words, it cannot be confined to rights that were thought about at the founding. The ninth amendment was a recognition that it was impossible to enumerate all liberties.


The government’s regulation would entail the handing of private, sensitive information regarding body data to the government. This violates the natural, unenumerated right of privacy protected by the ninth amendment.




THE 5TH AMENDMENT-DUE PROCESS CLAUSE


Original Meaning of Due Process

Historical evidence shows that the Framers were familiar with substantive due process. At the time it was written, individual rights were protected by courts exclusively through this theory. Just like the present, Britain did not have a written constitution. “When British courts protected individual rights under the unwritten constitution, they did so by holding that violations of those unenumerated rights did not qualify as ‘law’ and therefore could not be enforced.”

Decisions like this were common in the 17th century when English colonization of North America took place. For instance, in 1615, an English court found that an act which permitted particular cases to be tried without a jury was void as “an Act of Parliament made against natural equity, as to make a man Judge in his own case, is void in it self, for jura natruae sunt immutabilia [the laws of nature are unchangeable] and they are leges legum [laws that limit legislation].” In America, the same principles were applied by courts. In a 1657 case, Justice Samuel Symonds of Massachusetts Bay Colony ruled against a town’s attempt to make people pay for the construction of the town minister’s house. He said that according to the “rules of the learned in the lawes of England, an ordinance ‘repugnant to the fundamentall law . . . is voyd.’”


That fundamental law just gave officials “‘a derived power in trust’ not such an unlimited domination over other mens estates or persons.” If town leaders had the ability “by pretence of authority or without,” to give away citizens’ property, this would mean that “no man hath any certaynty or right to what he hath.” This would go “against a fundamentall law in nature,” as “noe man is come to New England to have his goods given and taken from him, unto, or for what good end, or under what pretence soever.” Any “lawes positive” that went beyond legislators’ derived powers or were in violation of “the basic premises of lawfulness…lose their force and are noe lawes at all .”


Lawyers of the revolutionary era were comfortable with this idea as they had been raised on Edward Coke’s writings. In 1792, a South Carolina court ruled that taking property from one individual and giving it to another individual was “against Magna Carta.” A Rhode Island Court invalidated a statute that would force people to pay their debts in banknotes and deprived violators of the law the right to a trial by jury. The law was voided despite the fact that Rhode Island had no state constitution; it was voided because it violated Magna Carta’s law of the land provision.


New York state courts and other state courts made use of the Law of the Land or Due Process Clauses of their respective state constitutions to invalidate legislative attempts to take property from one individual and give it to another individual. Similarly, the US Supreme court in Terret v. Taylor (1815) said that “the great and fundamental principles of a republican government” placed limits on legislative power. In Wilkinson v. Leland (1829), the court stated that “[t]he fundamental maxims of a free government” implicitly restricted what kinds of laws the government could enact. Lawyers at that time were familiar with decisions like Wilkinson, Hoke, and Terret, as well as Webster’s Dartmouth College argument and the writings of scholars such as Thomas Cooley, all of which interpreted the Due Process Clause as protecting substantive rights.


In the case Lessee v. Dorrance, there was a boundary dispute between Connecticut and Pennsylvania. This was settled legislatively by the state by “vesting title to disputed property in certain claimants at the expense of others.” This was challenged in the federal circuit court. Judge Paterson said that the legislature's act of “divesting one citizen of his freehold and vesting it in another, even with compensation” was void because it infringed upon natural and customary rights. He further stated that this meant that the settlement act “never had Constitutional existence; it is (was) a dead letter, and of no more virtue or avail, than if it never had been made.”


The most prescient statement of this classical understanding of law was made by Justice Chase in Calder v Bull.


In Calder v Bull, Justice Chase said that even if there was no express restraint in the Constitution, this did not mean that the legislature could violate rights (in contravention of the first principles of the social compact) by positive law. Chase wrote that natural and customary rights were limits on legislation even if they were not expressed or declared by positive constitutional law. He stated, “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence…There are certain vital principles in our free Republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established…The purposes for which men enter into society will determine the nature and terms of their social compact.... An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority… The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”


In North Carolina v Foy, the state legislature repealed a grant of land it had made to trustees for the establishment of the University of North Carolina. The University argued that this violated the law of the land clause in the state’s Bill of Rights.


The court struck this down and said that the law of the land clause was a general restriction on “the arbitrary will of the legislature.” According to the court, the clause prevented a university from being dispossessed of its “liberties or property, unless by a trial by jury in a court of justice, according to the known and established rules of decision, derived from the common law and such acts of the Legislature as are consistent with the Constitution.” “This mixing of substance and procedure was a distinctive characteristic of early due process jurisprudence.” Therefore, when Foy was decided in 1805, it was settled that the meaning of law included the classical understanding that Justice Chase argued in Calder v Bull. This classical understanding was also evident in the common references to voidness in constitutional decisions of the time period.


Chase’s views was common in the United States of the 1790s. William Blackstone’s doctrine of Parliamentary Supremacy was the result “of the constitution of sovereign command”. This was the doctrine that George III and the 18th century British Parliament propagated in support of the way they had managed the governance of the colonies. The colonists resisted this; they had adopted Coke’s higher law constitutionalism of 17th century England.


Post independence state constitutions, arguments of counsel and judicial decisions show that higher-law constitutionalism continued to stay the conceptual bedrock of American constitutional thinking in the founding period. In fact, the Philadelphia convention took place because of actions of state legislatures that claimed absolute legislative power and the resultant tyranny of the majority. It is unlikely, consequently that the supremacy of positive law was the rule. The revolution was fought in vindication of its constitutional opposite and the constitutional convention itself was because of absolute state legislative power.


The founders learned constitutional principles from Coke’s works. Thomas Jefferson said, “Coke Lyttleton was the universal elementary book of law students and a sounder Whig never wrote nor of profounder learning in the orthodox doctrines of . . . British liberties.” The Supreme Court Justice, Joseph Story said, “When I had completed the reading of the most formidable work, I felt that I breathed a purer air and that I had acquired a new power.”


The Sources of the Due Process Protection of Natural Rights


Edward Coke

Due process’s substantive limitation on government goes all the way back to Magna Carta’s law of the land clause in 13th century England. Despite the fact that Magna Carta fell out of use in the centuries after this, Edward Coke resurrected it as a central part of a higher law constitutionalism. This held that natural and other rights “customarily recognized and enforced at common law constituted fundamental limits on assertions of crown prerogatives” (and possibly parliamentary lawmaking.)


Due process of law is rooted in the Magna Carta. John I was forced to give in to a group of feudal barons at Runnymede who forced this charter on him. The provision with the most influence is the “law of the land” provision of Chapter 29: “No free man shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.” During the rule of Edward III in the 14th century, this was reaffirmed by parliamentary statute no less than six times. In the words of Law Professor Frederick Mark Geddicks: “These reaffirmation statutes memorialized a critical understanding of Chapter 29 that defined the ‘law of the land’ as the ‘due process of law’, (or) procedure by original writ or by an indicting jury”. This suggested procedural protection as well as substantive protection.


Magna Carta and its reaffirmations in the 13th and 14th centuries happened to occur at the same time that the rise of English common law and the royal courts took place. These courts had national jurisdiction and consequently displaced the many manorial, shire, and other local courts. The decisions of these courts were eventually termed the common law of England.


Magna Carta and the common law were seen as the “remnants of a romanticized ancient Saxon legal tradition ruptured by the Norman invasion. The coincidence of widespread belief in the ancient roots of the Charter's rights and remedies with purported discovery by royal courts of a similarly ancient common law indelibly linked the Charter and the common law in the English legal tradition.” This was a very crucial connection as in medieval and early modern England, the common law was seen as “the constitution of the kingdom.” By the time the end of the 14th century arrived, this belief about Magna Carta (whether accurate or not) was ingrained in English legal culture. As Magna Carta declared fundamental English law, this meant that the rights and remedies declared by it against the king formed part of the common law.


In the 13th century, the monarch was the one with the primary lawmaking authority through the use of royal decrees and kings’ courts’ judgements. Sir Edward Coke and others used this understanding of Magna Carta as a check on monarchial power to push back against the absolutism of the Stuart monarchs.


Eventually, in the early seventeenth century Magna Carta, the due process of law and the common law evolved into “fundamental or higher law limitations on royal and parliamentary power.”



Under the Tudor Monarchs in the 15th and 16th century, the restraints on royal power represented by common law (including Magna Carta) and parliament were unfastened. By the time the late 16th century arrived, Magna Carta including (Chapter 29) “had fallen into disuse.” The Tudor Monarchs’ amassing of power had made it in effect obsolete.


The first Stuart King, James 1 wanted to make this power shift formal and claimed that the King could not be subject to the law because law was just a way of executing the royal will. In order to combat James’ assertion of royal absolutism, Coke brought Magna Carta back to life and the belief that it declared ancient legal constraints on royal power. Coke’s argument was based on a syllogism:



1. “Magna Carta declared the existence of fundamental English laws and customs that formed part of the common law;


2. By ruling the kingdom in violation of these laws and customs, King John had been a tyrant;


3. 3. Therefore, any ruler who failed to observe Magna Carta likewise violated the common law and was similarly guilty of tyrannous behavior.”


Coke used the syllogism to designate Magna Carta as a “higher Law” which protected English liberties held by subjects. Giving Magna Carta (and the liberties declared by it) a status that was above ordinary law, enabled him to place it in the English legal system in such a way that was “prior to and more foundational than the actions of the king” (and maybe parliament). In Coke’s view, sovereignty had not been vested by the English constitution in the king or any of the estates but in the common law and the courts. This higher law limited what the king or estates could do, even if there was a consensus.


According to Professor Grey, Parliament, the king, and his courts "all were thought of as institutions controlled by an overarching fundamental law to which they were all jointly responsible. “


Coke did not just revive Magna Carta, he also reinterpreted in order to give broader and “more substantive protection of individual liberty.” This is shown in his clash with James regarding the jurisdictions of common law and ecclesiastical courts, in judicial opinions written or reported by him (such as Bonham’s case), multiple anti-monopoly cases, and most plainly in his monumental Institutes of the Law of England.


Eventually, Coke indicated that not just the crown, but Parliament was also limited by higher law constitutionalism.


In Dr Bonham’s case, Thomas Bonham was imprisoned by the London College of Physicians because he had practiced medicine without a license and had thus violated the college’s royal charter. Bonham sued the members of the college for false imprisonment. The defendants said that they had been granted “Letters Patents”. This was a royal grant where the king had given the college the exclusive power to give licenses to practitioners of medicine in the city and the power to fine and imprison those who practiced medicine without a license issued by the college. Parliament had confirmed this act twice. The court ruled in favor of Bonham by interpreting the grant as only having given the college the power to imprison for malpractice not unlicensed practice. There was no evidence of Bonham committing any malpractice and he also had a medical degree from Cambridge. In sum, the King had not given the college authorization to imprison Bonham. Coke’s opinion did not just talk about the denial of a trial before an impartial decision maker but also argued that “actions of Parliament that effect unwarranted deprivations of substantive liberty, such as granting to a private group monopoly powers over a lawful calling, are limited by fundamental law.” According to Orth: “Coke had been defending… the law's supremacy over the powers that be .... Coke was trying to give content to the law's restraint on power; that is, he was trying to give substance to due process. There were, he thought, things that the supreme power in the state, even the king in Parliament, could not lawfully do, no matter how hard he tried.” Coke argued that the Royal College’s possession of exclusive licensing authority was a monopoly that infringed upon the freedom of English subjects to practice lawful trades and professions without the meddling of the monarch. The general understanding in the 17th century was that grants of royal monopolies over ordinary trades or callings violated the common law.


In Darcy v. Allen, the court struck down a royal monopoly on playing cards. It found that monopolies violated the common law through their interference with “the liberty of the subject to pursue ordinary trades…and depriving subjects of an otherwise lawful means of earning a living.” In another monopoly decision, the court said “at the Common Law no man might be forbidden to work in any lawful Trade, for the Law doth abhor idleness, the mother of all evil, (and thus) the Common Law doth abhor all Monopolies, which forbid any one to work in any lawful Trade…” The holding said that restrains that were imposed on an individual who had finished his apprenticeship were “against the Freedom and Liberty of the Subject, and are a means of Extortion in drawing moneys” (to the guild). Both of these were against the law. Coke did not go on the offensive against monopolies because of the way or manner in which individuals were denied the right to practice a trade or calling. The violation of chapter 29 was not that individuals were deprived of life or liberty without a trial by jury or any other process. The violation was the deprivation itself. Coke stressed that an individual’s trade is his life and “therefore the monopolist that taketh away a mans trade, taketh away his life…Generally all monopolies are against this great Charter, because they are against the liberty and freedome of the Subject, and against the Law of the Land.”


In the second part of his work, Institutes, Coke wrote that “individual liberty was best protected by ‘due process of the common law’.”


In his 1628 work, the First Institute, he referred to the rights and remedies of Magna Carta as “ancient and constitutionally supreme.” He also said that any judgements and statutes that conflicted with the charter were "adjudged voide”, as a result making Magna Carta fundamental and preeminent English Law. In his view, Magna Carta did not just confirm and restore the common law but also announced “the bedrock constitutional principle that the Common law bound and limited both the crown and parliament.” He reinforced this view in the debates associated with the drafting and execution of the Petition of Right. The petition enacted under Coke’s influence was Parliament’s Declaration of Fundamental Common Law Liberties.” This was enacted as a statutory bill.


In the Second Institute (written in the early 1630s), Coke repeated these principles. This was not published till after he died. He reiterated that Chapter 29 and Magna Carta limited the actions of the king and Parliament because they were “declaration of the ancients rights of Englishmen.” He also “clearly equated the law of the land with the due process of law.” Coke said that the liberty protected by Chapter 29 "signifieth the freedomes, that the Subjects of England have." This shows substantive rights were protected in addition to procedural rights.


Coke replaced his dependence on the common law with the more specific contention that monopolies were in violation of Chapter 29, which he called a law “of definite content and traceable back to one particular document of ancient and glorious origin.” He said that the royal grant of monopolies for the manufacture or provision of useful items violated individual liberty which was guarded by Magna Carta. Coke exactly said “So likewise, and for the same reason, if a graunt be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that graunt is against the liberty, and freedome of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter.”


The efforts of Coke, his contemporaries, Magna Carta, due process and Common Law were not enough to defend against the absolutist claims of the Stuarts. Parliament’s efforts were far more successful. In the 1640s, Parliament deposed Charles I (son of James)and chopped of his. After suffering theocratic despotism for a decade under Lord Protector Oliver Cromwell and his son Richard, parliament removed Richard in 1660. It restored the monarchy and put Charles II on the throne (the son of executed Charles I).


After almost three decades of intense disagreement with Charles II and his successor the very overtly Catholic”James II, parliament engineered the Glorious Revolution of 1688. James II was forced flee and Dutch-Protestant William and his wife Mary (James II’s daughter) were made king and queen.

Parliament had first impeached, then deposed and finally executed one king. It had then gotten rid of the Puritan dictatorship that followed, restored the monarchy and forced another King to flee and lastly placed a new successor on the throne.


The fact that parliament had to undertake all these actions in less than half a century acted as evidence that higher law constitutionalism was not able to “reign in abuses of prerogatives by the Stuarts.” A different constitutional understanding replaced higher-law constitutionalism, under this understanding Parliament had “absolute constitutional authority as the sovereign in the British constitutional system. After defeating “the royal foes of English liberty, Parliament formalized the protection of that liberty in itself.”

According to Professor Reid, “the Glorious Revolution was the triumph of liberty, but of a liberty that had been institutionalized in Parliament's supremacy over the crown.” The Supremacy of Parliament replaced the supremacy of Magna Carta, due process and the common law which Coke had put so much trust in. As the 17th century disappeared into history and was replaced by the 18th century, the influence of Bonham’s cases and the constitutional view that common law judges could confront, dispute and question royal and parliamentary power in defence of individual liberty slowly faded away. Under the new understanding, anything that Parliament chose to enact or repeal was the English constitution, even when these actions violated natural or common law. This was the constitution of “sovereign command.”


Indicative of this , in 1765, Blackstone said that there was no constitutional remedy if parliament violated the fundamental common law rights guarded by the English constitution.


In 18th century America, the natural law tradition still flourished. At the time of the drafting and ratification of the 5th amendment, “law” did not have an entirely positive connotation. If a legislative act was called a “law” this did not mean the law had just been enacted by the legislature using the proper constitutional procedures but also that it complied with the substantial limitations on legislative power imposed by natural and customary rights. If a legislative act violated these limitations, it would not be “law” despite the fact that the constitutional procedural requirements for lawmaking had been satisfied.


Cicero said that even if an unjust statute was clearly adopted and accepted by the country, it would not be a law. Augustine said "a law that is not just is not a law." He claimed that because “law derived its essential character from its conformity to right reason (whose) first rule is the law of nature, (a law that violates the natural law) is no longer a law but a corruption of law.”


Legal dictionaries from the late 18th century made the same argument that laws got their obligatory force from the fact that they conformed to the natural law, if they did not, they would not be within the definition of the term “law”.


This classical understanding appears in late 18th century judicial decisions and arguments of counsel where language such as “nullity” and “voidness” was used regarding legislative acts that violated natural or customary rights.


The influence of higher-law constitutionalism could be seen in the American colonies as early as the mid 1650s. Since most of the colonies were initially chartered and settled during the 17th century when Coke’s role as a judge and MP were at their peak, he had a strong influence on colonial law. A lot of 17th century America lawyers studied in England, “where Coke's Reports and Institutes were a staple of legal education.” Even after the publication of Blackstone’s Commentaries in1765, Coke’s higher law constitutionalism was more influential. This was at the time when the arguments of Locke and the Whigs of the Glorious Revolution were some of the most influential on legal and political thought in the colonies. This was true both before and after the Revolution.



As a result, American lawyers were quite knowledgeable about English constitutional principles such as Chapter 29, widely held English 17th century beliefs about Magna Carta, Bonham’s case and other sources of higher-law constitutionalism.


The American colonies adopted Coke’s reading of substance into due process. However, in England, the English Civil War, the Interregnum and the Glorious Revolution lead to the nation’s abandonment of natural and customary rights as constitutional limitations on the king, and in replacement the adoption of a constitutional understanding that constrained the king’s powers by vesting full sovereignty in parliament.

In the American colonies, higher-law constitutionalism endured. In fact, the difference in understanding of the English Constitution was a major causal factor of the War of Independence.


Judicial decisions and arguments of counsel in the years after independence show that natural and customary rights were left under the protection of higher-law constitutionalism.


Before the revolution, colonists used higher-law constitutional arguments from 17th century England, some sources relied on were Magna Carta and Coke’s dictum in Bonham’s cases. In Paxton’s case, a royal customs officer wanted a “writ of assistance” (general search warrant) so that he could get unlimited authority to search the homes of any colonists for smuggled goods. In his argument, the colonial lawyer for the opposing side, James Otis said “As to Acts of Parliament, an Act against the Constitution is void; an Act against natural Equity is void; and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.”


Otis then proceeded to cite Magna Carta and Coke’s Second Institute and asserted that Parliament was not “the final arbiter of the justice and constitutionality of its own acts.” Instead, the Courts of Justice had to judge the validity of statutes. According to reporter John Adams, this foreshadowed the constitutional principle that it was the judiciary’s role to proclaim the unconstitutionality of statutes.


Despite the fact, that the court eventually granted the writ. Otis’ argument had a far larger impact than that single case. The higher law argument that courts could strike down parliamentary laws that violated Magna Carta and common law rights quickly became popular in colonial constitutional argument. Consequently, Bonham’s case was treated like a rule that let courts invalidate any act of Parliament that was against natural justice or the common law. After Otis’ argument was published in pamphlet form, many important colonial revolutionaries relied on it to make their own constitutional arguments in opposition to parliamentary actions.


In most of these cases, they depended on higher-law constitutionalism rooted in the seventeenth century due process of law. They also stressed that a written constitution did not create, grant or eclipse fundamental rights but rather guaranteed them.


The position of the Federalist’s during the ratification controversy (over the constitution’s lack of a bill of rights) that rights were already protected even though they were not mentioned showed that natural and customary rights were understood as “invested with an existence and normative force as higher or constitutional law that did not depend upon their enumeration in a written constitution.”


The Due Process clause was originally understood “to protect natural and customary rights against congressional action through a particular understanding of ‘law’ inherited from the classical natural law tradition.” Individuals in this tradition such as Cicero, Augustine, Aquinas and others believed that “an unjust law was not really a law.” Law was understood “in this restrictive manner-as having a normative content beyond mere positivist compliance.

with the rule of recognition.” Consequently, legislative acts that infringed upon natural or customary rights were not regarded as actual laws. This was the case regardless of whether or not the legislative acts were in conformance with “written constitutional prescriptions for the creation of positive law”.


In Robin v. Hardaway (1772), George Mason represented Native American plaintiffs who challenged a Virginia statute that said that descendants of Native American women were slaves. Mason said, “all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void.”


In Coke’s 17th century England, it was common for individuals to harbor the mistaken belief that common law incorporated natural law. By this time period, the colonists had also adopted this mistaken article of faith that “English common law liberties reflected and reinforced natural law and natural rights.” This resulted in the importation of this “confused relationship” into American law. Consequently, like the 17th century English, Americans mistakenly thought that common law incorporated natural rights. They adopted the common law not because it was customary but because they reflected “the highest reason” of natural rights.


By the time the early 1770s arrived, the meaning assigned to Chapter 29 and the broader concept of higher-law constitutionalism (“held king and Parliament alike to limitations prescribed by the natural and customary rights recognized at common law”) had amalgamated and merged.


According to Professor Woods, for the colonists, “Law was basically what the principles of right reason declared to be law, the codification of which was hardly inclusive.” This was the case “even when such codifications were rooted in the common law.” Their belief was that though the common law incorporated natural rights but when there was tension or conflict, “it was law that must give way to right.”


Eventually, Magna Carta “became a shorthand referent for natural and customary rights.” The colonists understanding was that the English constitution guaranteed these to them. When Magna Carta was cited, it was generally understood that this was a reference not just to chapter 29 or any other specific chapter but “as a general appeal to all of the seventeenth-century terms and arguments used to identify unconstitutional acts.”


When the colonies declared independence, due process and Magna carta had already become an important part of the “colonial argument against parliamentary taxes and regulation of the colonial police power.” In the words of Dean Manion, before the revolution colonial courts “were constantly hearing arguments and deciding cases on the natural rights theory projected by Coke as a basic principle of the common law.” The colonists’ main argument was that they had an entitlement and right to the whole body of unwritten natural and customary rights that were acknowledged at English Common law and accorded to English subjects.


The colonists, adopting Coke’s higher-law constitutionalism, said that Chapter 29 and the due process of law protected them from “arbitrary and unjust actions” not only from the king but also parliament. They also adopted and exaggerated Coke’s view that Chapter 29 did not just guarantee procedural fairness but also placed limits on the substantive goals that the king and parliament could push towards. In other words, it did not just guarantee procedural rights but also substantive rights.


In the case, Butler v. Craig, a Maryland court refused to enforce a statute which said that the children of free whites and slaves were slaves. This was an acceptance of the counsel’s argument that , “depriving the defendant of her freedom without a jury trial, based solely on the conviction of her parents for an unlawful marriage, violated the law of the land or due process guarantees set forth in Chapter 29 of Magna Carta”. While the Maryland Declaration of Rights did have a provision of “law of the land and jury trial guarantees”, the counsel did not cite them and relied exclusively on Coke’s Second Institute, Edwardian confirmations of Chapter 29 and additional English common law authorities.

In Ham v. McClaws, a South Carolina court found that the state’s attempt to make a family who had just arrived in the state pay a statutory fine and the court’s attempt to impose forfeiture for illegal importation of slaves was against the constitution. The statute had been enacted when the family was in transit on the high seas. The counsel for the defendants argued that while the defendants fell within the “strict letter of statute”, it would be “an act of injustice” and “contrary to common right and reason”, “natural equity, and Magna Carta-common law code for violations of natural and customary rights”. He stated “For there were certain fixed and established rules, founded on the reason and fitness of things, which were paramount to all statutes; and if laws are made against those principles, they are null and void. For instance, statutes made against common right and reason, are void. So statutes made against natural equity, are void; and so also are statutes made against Magna Carta.” The court agreed and said that it “is clear, that statutes passed against the plain and obvious principles of common right, and common reason, are absolutely null and void, as far as they are calculated to operate against those principles.” It also added that the statute had to be construed in a way “consistent with justice, and the dictates of natural reason, though contrary to the strict letter of the law.”


According to Randy Barnett, “It is significant that the proposal that ultimately became the Fifth Amendment was, according to Madison’s original design, to be inserted into ‘article 1st, section 9, between clauses 3 and 4’ alongside other limits on congressional power. It would have followed the clause prohibiting Congress from enacting bills of attainder and ex post facto laws—strongly suggesting that it, too, was designed to limit congressional action.”


One of the most compelling arguments made in opposition to the Bill of Rights was that it would shift the burden of proof. It was feared that the addition of a bill of rights would flip the presumption of the Constitution. In its original form, the Constitution put the “burden of demonstrating federal power to act on Congress and the president.” During the first state ratification debate in Pennsylvania, Wilson said that “it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested.” His concern was that by listing specific rights, this would imply a narrowing of rights to only those specifically listed. “Federal powers would be conceived broadly, with those defending the rights bearing the burden of showing that the written provision had been invaded.”


The Levellers

Edward Coke influenced the Levellers. The Levellers were were a group of radical libertarian activists and pamphleteers who were active during the English Revolution. They advocated individual liberty, property rights, constitutionally limited government, religious toleration, and free trade at a time when virtually none of these things existed in England.

According to historian Bernard Bailyn, “The ultimate origins of this distinctive ideological strain (colonists’ ideology) lay in the radical social and political thought of the English Civil War and of the Commonwealth period (such as the Levellers)…


“Injustice, no less than justice, can be erected into a legal system.” This how the Levellers saw the Norman invasion of Anglo-Saxon England in its constitutional aspect. The ‘just laws of Saxon England had been replaced by a tyranny legally riveted upon the free-man of England.’ In the Leveller’s view the laws associated with the Norman Conquest and Feudal system were not law in the ‘fundamental sense’ but ‘perversions.’

The Levellers invoked natural rights against the despotism of the Stuart Government. Richard Overton, a leading Leveller activist said “By natural birth all men are equally and alike born to like property, liberty and freedom; and so we are delivered of God by the hand of nature into this world, every one with a natural, innate freedom and property. Even so are we to live, everyone equally and alike to enjoy his birthright and privilege.”


It was the Leveller’s theory which was then expanded on by John Locke and then used as the foundation of the Declaration of Independence and the Constitution. When the Levellers spoke of rights, they assumed them to reside with individuals. They believed that each man should have freedom limited only by regard for the freedom of others. Significantly, Coke’s Institutes served as their handbook and they protested against the supremacy of Parliament in the middle of the 17th century. They demanded restraints on parliamentary power. A Leveller named Maximilian Pettey said “For I judge every man is naturally free…” This is illustrative of their principles. Historian Blair Worden says the Levellers thought “No sovereign power could entrench on rights which the people reserved to themselves.” The Levellers use of natural rights is evident in the Putney debates (after the end of the first English Civil War ) where there was debate on the Agreement of the People (draft of a written constitution) in late October 1647.


The main radical spokesmen in the debate were Colonel Thomas Rainborough and John Wildman. Their convictions were “(1) that all men share an essential structure that determines certain fundamental human inclinations or tendencies; (2) that the good for all men is the realization or fulfillment of these inclinations; (3) that norms or moral laws are derived from man’s nature and his efforts to achieve authentic fulfillment.” This shows that the Levellers looked at the question of a constitutional settlement in terms of natural law.


The Agreement of the People stated that parliament’s power would not extend to “matters expressly or implicitly reserved by the represented unto themselves.” Additionally, it read all law “must be good, and not evidently destructive to the safety and well-being of the people.” This seems to be like a limitation on parliament’s power similar to substantive due process. Another draft of the Agreement of the people titled ‘a Peace-Offering to this distressed Nation included a provision that no future representative “could level mens Estates, destroy Propriety, or make all things common.”


The Leveller’s were influenced by Plato, Aristotle, Aquinas and Hooker in their appreciation of natural law. In their view, any government was unjust if it “limited men in their natural law right to pursue their natural end.”


According to historian ,William Haller, the Levellers “spoke and acted in conformance to a well defined "conception of the law of nature and the state which they had come to accept as truth.”


Leveller, John Lilburne claimed that “all men were born to equal natural rights upon the assumption that God had bestowed sovereignty over all the rest of his creatures upon Adam and Eve” In his book Innocency and Truth he wrote “Nature and reason (are) the grounds of all just laws…The law of nature specially considered which is so called Law of reason, pertains only to creatures reasonable, that is man, which is created in the image of God. ... And this law is always good and righteous, stirring and inclining a man to good, and aborting evil, and as to the ordering of the deeds of man ... and it is written in the heart of every man, teaching him what is to be done and what to be fled, and because it is written in the heart, therefore it may not be put away, neither is it never changeable by no diversity of place, nor times. And therefore against this Law, prescriptions, statutes, not customs may not prevail. And if any be brought in against it, they be no prescriptions, statutes nor customs, but things void, and against justice, and all other laws, as well the laws of God, as the acts of men, as other be grounded thereupon, and ... this law of reason teacheth that good is to be loved and evil to be fled.” To an increasing extent, individuals like Overton and Lilburne referred to natural law when they criticized parliament and when they presented their reform program. According to Lilburne the people were only obliged to support Parliament “only so long as they acted demonstrably for the public good.” He asked, “For who but a madman would obey the General who turned his canon against his own troops?” Lilburne claimed “If it be not reason, the pronunciation of 10,000 judges cannot make it law... no government can be just or durable but what is founded and established upon the principles of right reason, common and universal justice, equity and conscience.” He further asserted “... for the Law taken abstract from its originall reason and end, is made a shell without a kernell, a shadow without a substance, and a body without a soul. It is the execution of Laws according to their equity and reason which ... is the spirit that gives life to Authority the Letter kills.”


Finally, Lilburne also continued to say that he was restoring something that previously existed, and was reflected in the law, and such landmarks as Magna Carta and the Petition of the Right. Just like Coke, other 17th century Englishmen and later the American colonists had, the Levellers made the same mistake of conflating natural law and the common law.

Historian Pauline Gregg wrote that for the Levellers, “Though law was righteous in its essence, particular laws could be, and frequently were, bad. Bad laws were in the nature of an aberration from the true nature of Law, but to evil in the law-giver.”


In the conclusion to the Pamphlet, An Arrow Against All tyrants, Leveller, Richard Overton wrote “by nature we are sons of Adam, and from him have legitimately derived a natural propriety, right and freedom.... It is but the just rights and prerogatives of mankind ( unto the people of England are heirs apparent, as well as other nations which we desire ... “


The Leveller, John Wildman stated that “anything tends to the destruction of a people, because the thing is absolutely unjust, that tends to their destruction, they may preserve themselves by opposing it.” Wildman was talking of an act of injustice carried out by the government that imposed limitations on men in the pursuance of their natural end.


According to Murray Rothbard, the Levellers “transformed the rather vague and holistic notions of natural law into the clear cut, firmly individualistic concepts of natural rights of every individual human being,” Rothbard wrote that the Levellers contended, “The rights of each individual to his person and property, furthermore, were natural, that is, they were derived from the nature of man. ... And therefore were not dependent on, nor could they be abrogated by government.”


The Levellers contributed in constructing the expansive libertarian platform of the commonwealthmen that was extremely crucial to a future generation of Americans. . They also were a significant influence on John Locke, another important thinker for the colonists.

There is evidence, that the Levellers also had a direct impact on the Founding Fathers’ thinking and philosophy. In a June 24, 1826 letter to Washington’s mayor, Roger C. Weightman, Thomas Jefferson quoted the final speech of a Leveller named Col. Richard Rumbold, “tho I am sure there was no man born marked of God above another, for none comes into the world with a saddle on his back, neither any booted and spurred to ride him.”


John Locke

John Locke was a very important philosopher and immensely influential on the constitutions’ framers. He was also very influenced by the Levellers. According to Rothbard, “Locke's entire structure of thought in his Two Treatises of Government, written in 1681–1682 as a schema for justifying the forthcoming Whig revolution against the Stuarts, was an elaboration and creative development of Leveller doctrine — the beginnings in self-ownership or self-propriety, the deduced right to property and free exchange, the justification of government as a device to protect such rights, and the right of overturning a government that violates, or becomes destructive of, those ends.”


According to John Locke popular interpretation of natural law is the ultimate test of the validity of civil law”. Government did not create rights, it was “strictly fiduciary in character” and its role was to make rights which antedate it “more secure” and “more readily available.”


The majority (which determines the form of government) does not have the power to vest its agent with arbitrary power because the source of the majority right is the delegation by free sovereign individuals who had “in the state of nature no arbitrary power over the life, liberty, or possessions of others, or even over their own.” According to Edward S Corwin, “Locke definitely anticipates the modern latitudinarian concept of due process of law.”


John Locke echoes Coke in his reference to higher law. He says that the legislative power is not the ultimate power as “the community perpetually retains a supreme power of saving themselves from the attempts and designs of any- body, even their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject.” Legislative power is not the “final sanction of the rights of men.”


John Locke’s Two Treatises Of Government was “expressly published to establish the Throne of our Great Restorer, Our Present King William.” Despite this “express purpose” in support of the king, John Locke wanted to stay anonymous. The reason is moderate Whigs were not willing to accept Locke’s contention regarding the release of people’s obligations. In Locke’s view, James II had tried to subvert the English Constitution and by doing this he had put himself in a condition of war with the English people and “dissolved the existing government.” Importantly, Locke’s theory of dissolved government would also apply to Parliament if it violated rights. It would release the people of their obligation not only to James II but also to parliament. This expressed that there was a higher law that even Parliament could not violate.


The framers of the Constitution believed in the Lockean tradition. According to the Lockean tradition, “Rights derive from the characteristics of individuals irrespective of government”, because of this “any limit on freedom must be justified on some rational grounds. People have the right to act without unjust interference.” In contrast under the Blackstonian view, the legislature could do whatever it wanted. It could give some degree of freedom if it wanted to but this would be “only for prudential reasons, not because the people have a moral right to their freedom.”


By the 1820s, the Blackstonian perspective was growing in popularity in the legal academy to Thomas Jefferson’s despair. He said “When…Blackstone became the law student’s hornbook, from that moment, that profession (the nursery of our Congress) began to slide into Toryism, and nearly all the young brood of lawyers now are of that hue.” James Wilson had the same view and like Jefferson he rejected Blackstone’s belief in absolute sovereignty. In 1803, Virginia judge St. George Tucker published an edition of Blackstone’s commentaries where he added near one thousand pages of footnotes and clarifications that either refuted or qualified Blackstone’s views of government power. James Madison was also alarmed at the growing acceptance of Blackstone. Blackstone argued “that every government contains a “despotic power”—an irreducible kernel of authority that entitles it to make law. This right to obedience was boundless. It was “supreme, irresistible absolute, [and] uncontrolled” and could do “every thing that is not naturally impossible.” “ According to Blackstone, government had a basic right to whatever it wanted with people and could give or withdraw rights whenever it pleased. “On balance, then, the late eighteenth century legal authorities strongly support the position that the classical natural law of "law" was widely held in the 1790s.”


The Influence of Cato’s Letters

Bailyn wrote that the Colonists’ distinctive ideological strain’s “ permanent form had been acquired at the turn of the seventeenth century and in the early eighteenth century, in the writings of a group of prolific opposition theorists, “country” politicians and publicists.” This built upon thought from the English Civil War and Commonwealth Period (such as Leveller thought).


These opposition theorists were called the Commonwealthmen (these individuals were not from the Commonwealth Period in the 17th century but the 18th century) were a group of British Protestants whose work had little influence in Britain but a strong influence on colonial British America. They strongly believed in natural rights, writing “no government ought to take away men’s natural rights, the business and design of government itself being to defend them”


The most influential and famous works of these 18th century opposition (Commonwealthmen) were Cato’s Letters. While the colonists strongly identified with 17th century heroes of liberty (such as the Levellers), they also felt close to 18th century writers who worked on this earlier body of ideas. Cato’s Letters were influenced by the Levellers and Locke and also stood in favor of natural law, especially its imposition of limits on political authority. In the letters, Trenchard and Gordon write, “True and impartial liberty is therefore the right of every man to pursue the natural, reasonable, and religious dictates of his own mind; to think what he will, and act as he thinks, provided he acts not to the prejudice of another; to spend his own money himself, and lay out the produce of his labour his own way; and to labour for his own pleasure and profit, and not for others who are idle, and would live and riot by pillaging and oppressing him, and those that are like him.” They add “the nature of government does not alter the natural right of men to liberty, which is in all political societies their due.” In their view “All Men are born free…Liberty is a Gift from God himself, nor can they alienate the same by Consent, though possibly they may forfeit it by Crimes.” Trenchard and Gordon claims that Men are entitled to liberty and possess inalienable rights because of their very nature.


The Influence of Algernon Sidney

Another influential figure was Algernon Sidney. According to Thomas Jefferson, his Discourses was “a rich treasure of republican principles…probably the best elementary book of the principles of government, as founded on natural right which has ever been published in any language.” Sidney was also extolled by John Adams, John Dickinson, Benjamin Franklin, James Otis and other writers of the American Revolutionary era. He knew John Locke and collaborated with William Penn to facilitate the infiltration of libertarian ideas into Parliament. Sidney wrote “The Liberties of Nations are from God and Nature, not from Kings [human beings] have by the law of nature a right to their liberties, lands, goods.”


In his work, Court Maximus, Sidney affirmed the doctrine of a higher law and said that if rulers subverted the peoples’ interest they “ought no longer to be looked upon as fathers or shepherds, which are titles of love and sweetness, but thieves, wolves, tyrants, the worst of enemies…The essence of the law consists solely in the justice of it: if it be not just, it is no law… The law that should be for our defense is a snare…what law soever is made prejudicial to those of that society, perverting justice, destroys the end for which it ought to be established, is therefore in the highest degree unjust and utterly invalid …The most important temporal interests of all honest men are: to preserve life, liberty, and estate.” Additionally, Sidney wrote that “Every man has a right of resisting some way or other that which ought not to be done to him. No People can be obliged to suffer from their King what they have not a right to do Unjust Commands are not to be obey’d; and no man is obliged to suffer for not obeying such as are against Law, it would be madness to think, that any nation can be obliged to bear whatsoever their own magistrates think fit to do against them.” Only Cato’s Letters and Locke’s Two Treatises of Government were more prevalent in colonial libraries. This immense influence can be seen in Massachusetts’s adoption of Sidney’s words, in the Copenhagen guest book as the state motto, “This hand enemy to tyrants, By the word seeks calm peacefulness with liberty.”


The Influence of Hugo Grotius

Grotius was another important source for the framers. Grotius wrote that natural rights came from natural law “Civilians call a faculty that Right, which every man has to his own…This right comprehends the power, that we have over ourselves, which is called liberty…It likewise comprehends property…Now any thing is unjust, which is repugnant to the nature of society, established among rational creatures. Thus for instance, to deprive another of what belongs to him, merely for one’s own advantage, is repugnant to the law of nature.” Murray Rothbard wrote that Grotius “brought the concepts of natural law and natural rights to the Protestant countries of northern Europe.” Grotius’ natural law philosophy was “derived from the higher law doctrine of Marcus Tullius Cicero and other ancient Roman and Greek philosophers.” These philosophers harbored the belief that the legitimacy of government laws had to be judged by criteria of justice which for them meant natural law.


Grotius wrote “Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend.”


Grotius influenced John Locke. Adam Smith wrote that “Grotius seems to have been the first who attempted to give the world anything like a regular system of natural jurisprudence, and his treatise [De Jure Belli ac Pacis], with all of its imperfections, is perhaps at this day the most complete work on the subject.” In Jefferson and Madison’s view Grotius was one of the leading authorities on resolving international disputes.


Historian John U. Nef wrote “What is most significant for subsequent history in his work on war and peace is the insistence that legal principles exist in the human reason, independent of any actual worldly authority, political or religious, yet binding in the world – principles which should govern in all contingencies arising out of breaches of the peace between sovereign states.” This reasoning seems to have been applied by the framers to domestic situations too.

The Due Process Clause of the Fifth Amendment Protects the Natural Right to Privacy

The presumption of liberty has also been used to protect the unenumerated, natural right to privacy through the due process clause.


Ullman

Poe v Ullman “involved Connecticut statutes which prohibit(ed) the use of contraceptive devices and the giving of medical advice on their use.”


In his dissent in, Justice Harlan wrote that the statute in question violated the right to privacy protected by the Due Process Clause. “I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life…Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three… However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental which belong . . . to the citizens of all free governments," Corfield v. Coryell, 4 Wash. C. C. 371, 380, for "the purposes [of securing] which men enter into society," Calder v. Bull, 3 Dall. 386, 388. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights…Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Without doubt, it denotes not merely freedom from bodily restraint.”


In Griswold, the concurrence by John Marshall Harlan II wrote that privacy was protected by the due process clause of the fourteenth amendment. “In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment. because the enactment violates basic values "implicit in the concept of ordered liberty… I believe that it does...”


Justice White wrote, “It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right "to marry, establish a home and bring up children and "the liberty . . . to direct the upbringing and education of children,", and that these are among "the basic civil rights of man.". These decisions affirm that there is a "realm of family life which the state cannot enter" without substantial justification… In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment…In my view, a statute with these effects bears a substantial burden of justification when attacked under the Fourteenth Amendment… The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require "strict scrutiny," and" must be viewed in the light of less drastic means for achieving the same basic purpose. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."


In Loving v Virginia, the court struck down a law that banned inter-racial marriage. The court wrote “These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”


In Lawrence v. Texas (concerning struck down laws criminalizing private sodomy), the right to privacy was once again protected by the due process clause of the fourteenth amendment. “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”


In this case, liberty was made the baseline, and the burden of proof was put on the government. The government had to justify its restriction. Justice Kennedy employs a presumption of liberty that obliges government to justify its restriction on liberty. In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.


Justice Kennedy observed in his Lawrence decision, if people are not hurting each other or seriously threatening the public, “[t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”


In his work, Liberty Under the Law: The Supreme Court in American Life, William M. Wiecek said, “[t]he right to privacy achieved constitutional status in two cases of the Lochner era, the only substantive due process decisions that survived the 1937 revolution.” The two cases mentioned were Meyer v. Nebraska and Pierce v. Society of Sisters.


Meyers v Nebraska

In Meyer v. Nebraska, the court struck down a Nebraska law which forbid anyone in any private, denominational, parochial or public school from teaching subjects in any language except English. A non-English language could only be taught to a student after he passed 8th grade. A certificate of graduation issued by the county superintended was required to prove completion of 8th grade.


Robert Meyer was prosecuted for teaching German bible stories to a 10-year-old. The offense was “the direct and intentional teaching of the German language as a distinct subject to a child who had not passed the eighth grade.”


The court held, “Without doubt, it (liberty) denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts…That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution—a desirable end cannot be promoted by prohibited means.”


Pierce v Society of sisters

Pierce v Society of Sisters involved the Compulsory Education Act of Oregon. The Compulsory Education Act required every parent, guardian or custodian to send their children “to a public school for the period of time a public school shall be held during the current year.” This law was enacted at the insistence of the Ku Klux Klan and aspired to eradicate private and parochial schools in Oregon. One of the schools was owned by a Roman Catholic charitable group called the Society of Sisters and the other school involved was the Hill Military Academy which was a private, for-profit boys military school.


“We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. . . .”


Farrington v. Tokushinge

In Farrington v. Tokushinge "An Act relating to foreign language schools and teachers thereof" prohibited any foreign language school from operating without a paid permit from the Department of Public Instruction. The act also set criteria for who could teach in such schools, who could attend and only allowed prescribed textbooks to be used. Only individuals who were possessed with “the ideals of democracy; knowledge of American history and institutions”, knew how to read, write and speak English were to be given permits to teach.


It also only allowed prescribed or permitted subjects to be taught. After September 1, 1924, a student who had not completed 4th grade would not be permitted to attend a foreign language school.


The court wrote, “The general doctrine touching rights guaranteed by the Fourteenth Amendment to owners, parents and children in respect of attendance upon schools has been announced in recent opinions. Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, id. 404; Pierce v. Society of Sisters, 268 U. S. 510. While that amendment declares that no State shall "deprive any person of life, liberty or property without due process of law," the inhibition of the Fifth Amendment-" no person shall . . . be deprived of life, liberty or property without due process of law "- applies to the federal government and agencies set up by Congress for the government of the Territory. Those fundamental rights of the individual which the cited cases declared were protected by the Fourteenth Amendment from infringement by the States, are guaranteed by the Fifth Amendment against action by the Territorial Legislature or officers.”


This decision relied on Meyer v. Nebraska and reaffirmed the right to privacy.


Stanley v. Georgia

In Stanley v. Georgia, the police searched Stanley’s home looking for evidence of bookmaking. They found obscene film reels instead and Stanley was convicted of violating Georgia law against the possession of obscenity.


The Supreme Court acknowledged “the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.” In addition they wrote,“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized man.”


Einstadt v. Baird

In Einstadt v Baird, William Bard gave a condom and contraceptive foam to a 19-year-old woman in violation of Massachusetts law. Contraceptives could only be given by registered doctors or pharmacists to only married people.


Justice Brennan wrote, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. “



The Due Process Clause Protects Privacy through the Enumerated Right of Property; Property includes Propertarian Privacy

Due Process protects both enumerated and unenumerated rights. The unenumerated right to privacy is protected. However, privacy is also protected through the Due Process clause’s express protection of ‘property.’ This is because property also includes ‘Propertarian privacy’, a model of privacy which is anchored in natural property rights that begins with self-ownership. “Privacy, the realm beyond the reach of forcible intervention, is inherent in and inseparable from that intent. If property is not a sanctuary from entreaty and command, what is it? The Founding Fathers understood that. “


In the case Boyd v United States, Justice Joseph Bradley wrote that the guarantees of the 4th amendment, “apply to all invasions on the part of government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property. “This is consistent with the term property as it was used in the 17th century from where much pf the Framer’s inspiration came.


The Levellers, Lilburne and Overton “discerned the radical potential in the natural law theory by invoking self-propriety as the basis of universal rights” Murray Rothbard wrote, “The Levellers, led by John Lilburne, Richard Overton and William Walwyn, worked out a consistent libertarian doctrine, upholding the rights of self-ownership.” The Levellers contended that each individual’s rights to his person and property were natural and for this reason could not be abrogated by government.

“Privacy, the realm beyond the reach of forcible intervention, is inherent in and inseparable from that intent. If property is not a sanctuary from entreaty and command, what is it? The Founding Fathers understood that. “


In other words, property does not include just physical property but also privacy anchored in natural property rights that begin with self-ownership. This means that the privacy (inherent in self-ownership) is included within the “indefeasible right of private property”. This implies that property in the 5th amendment protects propertarian privacy.


In his pamphlet, An Arrow against all Tyrants (1646), Richard Overton wrote, “To every Individuall in nature, is given an individuall property by nature, not to be invaded or usurped by any: for every one as he is himselfe, so he hath a selfe propriety, else could he not be himselfe, and on this no second may presume to deprive any of, without manifest violation and affront to the very principles of nature, and of the Rules of equity and justice between man and man; mine and thine cannot be, except this be: No man hath power over my rights and liberties, and I over no mans; I may be but an Individuall, enjoy my selfe and my selfe propriety, and may write my selfe no more then my selfe, or presume any further; if I doe, I am an encroacher & an invader upon an other mans Right, to which I have no Right.”


This regulation violates the Due Process Clause in two ways. First it violates, the unenumerated, natural right to privacy (also protected by the 9th amendment) and then it violates the enumerated right of property through its violation of ‘propertarian privacy.’


THE 5TH AMENDMENT TAKINGS CLAUSE

In some instances, this may constitute a taking. In the case Pennsylvania Coal v Mahon, the court wrote “It is our opinion that the act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved. . . . What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. This we think that we are warranted in assuming that the statute does.”


In the case of a hypothetical long-distance delivery driver, the technology may stop the car after detecting that the driver is a little tired. This could make it unprofitable for companies to engage in long-distance deliveries and increase costs for other businesses which need to deliver components. This may make it commercially impractical to transport long-distances. The case could be the same for individual employees driving to work. This would diminish the value of the car as it may not allow an individual to drive if he is tired but needs to reach work for instance.


Conclusion

The "49 CFR Part 571 [Docket No. NHTSA–2022–0079] RIN 2127–AM50 Advanced Impaired Driving Prevention Technology" regulation, while aimed at enhancing road safety by addressing various forms of driver impairment, raises significant constitutional concerns.


The regulation's mandate for passive monitoring and potential limitation or prevention of vehicle operation upon detecting impairment intrudes upon fundamental rights protected under the 4th, 5th, and 9th Amendments. The 4th Amendment's safeguard against unreasonable searches is challenged by continuous and potentially intrusive monitoring of drivers. The 5th Amendment's protection against self-incrimination and guarantee of due process is compromised by the automatic penalization without adequate procedural safeguards. Furthermore, the 9th Amendment, which reserves to the people rights not explicitly enumerated in the Constitution, underscores the broader implications for personal liberty and privacy.


Balancing the objectives of public safety with constitutional rights is essential, and this regulation, in its current form, necessitates careful reconsideration to avoid infringing upon these fundamental protections.

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