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and provides a right to discovery against the government in
Section 8, which provides for the right to counsel inside grand jury proceedings, and for independent counsel to advise the grand jury;
Section 11, which provides that prisoners shall retain their rights except as reasonably necessary for purposes of security; and
There are some revisions to the Bill of Rights proposed by the Task Force that we are constrained to say we do not think are as protective of civil liberties as the original draft: Section 9, in which the original draft provided that the only purpose of bail was to assure the presence of the accused at trial. Under the new draft, bail may in some circumstances be denied to persons charged with offenses punishable by life imprisonment. In our view, this provision would violate the Fifth and Eighth Amendments to the United States Constitution, which we believe establish a constitutional presumption of innocence that requires bail to be available for persons charged with all offenses (or at least all non-capital offenses), although bail may be denied if there is no form of security that will reasonably assure the presence of the
accused at trial. Thus, a person who is believed likely to jump bail may be held without bail on even a relatively minor offense, while a person accused of a serious crime should be eligible for bail if his appearance at trial can be reasonably assured. Of course, the maximum potential punishment is a factor that may as a matter of logic be entitled to substantial weight in the calculus of a person's likelihood to flee or appear, and similarly the apparent strength or weakness of the evidence against the accused may bear on his likelihood to flee or appear. However, in our view the Constitution should not single out crimes punishable by life imprisonment as a separate category for which the usual rules as to bail do not apply. Section 17, in which the original draft abolished the doctrine of sovereign immunity, while constitutionalizing the common law doctrine of judicial immunity. The new draft would limit the abolition of sovereign immunity to cases involving violations of the Bill of Rights, but apparently would not immunize judges with respect to such violations. neither change is an improvement. First, we do not understand why the doctrine of sovereign immunity should not be abolished with respect to all harms caused by the government. Indeed, it is with respect to injuries not related to the Bill of Rights that sovereign immunity has generally already been abolished in most states for example, malpractice by physicians at state hospitals, or personal injuries caused by government motor
vehicles driven by state employees.
In our view,
We would not expect that
the abolition of sovereign immunity with respect to such matters would be controversial. On the other hand, the apparent abolition of judicial immunity in the new draft may well lead to substantial opposition. Good arguments can be made on both sides of the question whether judicial immunity is a pro- or anti- civil liberties doctrine. Perhaps this issue should not be settled with an absolute rule in the Constitution, but left to the courts, where it has been dealt with until now.
Section 19, in which the original draft guaranteed indigent civil litigants "access to courts," which may have meant the provision of free lawyers. The new draft simply assures that indigents need not pay court costs, as existing law already provides. We believe that providing effective access to the courts for indigent litigants is an important component of civil rights and civil liberties, for without effective access to the courts, a person's rights are not worth the paper they are written on. The original draft was general enough to leave plenty of room for statutory or judicial interpretation of the phrase "access to courts," so that, for example, the problem of frivolous or repetitive suits could be dealt with. We would therefore prefer the retention of the original draft.
Having noted our disagreement with these proposed changes, we hasten to repeat our statement that we support the process of political compromise as a necessary part of the path to
statehood, even when it results in some particular provisions that may not be ideal from our point of view. Therefore, the ACLU will not oppose the constitution that results from the process of political compromise, unless it contains what we believe are very serious civil liberties defects.
There is one section in the Bill of Rights that we believe
is urgently in need of clarification.
Section 20 (formerly S 21), entitled "Equal Pay," is as
"All employees shall be guaranteed
The problem is that it is entirely possible that this sentence could be interpreted to mean what it literally says: "all employees." In other words, the day the New Columbia State Constitution goes into effect, I could sue the ACLU for equal pay, claiming that my work is "comparable" to that of a young partner at Covington & Burling, and thus obtain a court order requiring the ACLU to triple my salary. While I personally think that is a terrific idea, it is probably not what the drafters had in mind. Presumably (and we have been so informed by persons who were involved in the drafting) the intent here was to require equal pay for employees performing comparable work for a single employer. That should be made
clear in the text, or at the very least in explicit legislative history.
Finally, there is one provision of the Bill of Rights that has become unacceptable to us, and very possibly unconstitutional
as a matter of federal law, because of the revisions proposed by the Task Force. We strongly oppose this section in its revised form. Indeed, we view its defects as so serious that it is likely that we would oppose the entire proposed Constitution unless substantial changes are made in this section.
The revised Section 3 ("Freedom from Discrimination")
proposed by the Task Force provides, in part:
"Every person shall be free from
discrimination, public or private, based
on race, color, religion, creed, citizenship,
I have emphasized the phrase "or private" because this is the
As revised by the Task Force, Section 3 would make the all-male Cosmos Club, the all-female Sulgrave Club, the allblack Huntsmen Club, the Sons of Italy, the Knights of Columbus,
the Masons, the Daughters of the American Revolution, the
Society of the Cincinnati, the Gay Mens' Chorus, college fraternities and sororities, the Women's National Democratic Club, the Society of Women Geographers, Spa Lady and other allfemale health clubs, and probably hundreds of other existing