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and provides a right to discovery against the government in

criminal cases;

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

Section 13, which provides full protection aga inst double jeopardy.


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.

Onder 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 Pifth and Eighth Amendments to the Onited

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 forn 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.

In our view,

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

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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.

Baving 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.

The complete text of

Section 20 (formerly S 21), entitled "Equal Pay,' is as


"All employees shall be guaranteed
equal pay for equal work and equal
pay for comparable work."

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 ACLO 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 ACLO 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

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Pinally, 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,
national origin, sex, sexual orientation,

poverty, parentage, disability or age."
I have emphasized the phrase "or private" because tbis is the
root although it is not the full extent of the problem

with this provision.

As revised by the Task Force, Section 3 would make the

all-male Cosmos Club, the all-female Sulgrave Club, the all

black 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 all

fenale health clubs, and probably hundreds of other existing

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