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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
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
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
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
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
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
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
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
poverty, parentage, disability or age."
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