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THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 32:635

1. Preamble ... II. Bill of Rights

A. Introduction
B. Freedom of Association
C. Freedom of Religion ...
D.

Freedom from Discrimination..
E. Right to Privacy ...
F. The Criminal Justice System ..

1. Introduction
2. Due process
3. Searches and seizures.
4. Arrestees and defendants
5. The grand jury system
6. Bail
7. Trial by jury
8. Punishment
9. Double jeopardy
10. Habeas corpus

11. Common law crimes
G. Sovereign Immunity
H. The Civil Justice System
I. Labor ..
J. Right to Change
K. Unenumerated Rights and Self-execution

1. Unenumerated rights.

2. Self-execution Conclusion. Appendix..

641 644 644 645 647 650 654 657 657 658 659 668 671 677 681 682 686 688 690 692 696 697 701 704 704 705 707

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INTRODUCTION

[T]he state constitution ... should be couched in rather broad terms. These should not be filled with details which would anticipate all probabilities, which scem humanly impossible and could render the document more difficult to interpret and properly utilize . . The Federal Constitution . . . does set a model of brevity. It should be our touchstone.'

1. District of Columbia Statehood Constitutional Convention Transcript 139 (Apr. 24, 1982) (statement of the Honorable Arrington Dixon, then chairman of the Council of the District of Columbia) (hereinafter cited as Transcript).

As of early 1983, the transcript of the Convention debates was publicly available only at the Georgetown University Law Library in Washington, D.C. It is hoped that the Martin Luther King Public Library in Washington, D.C. will make a copy of the transcript available as a public record; together with all Convention records. The staff of The American University Law Review has supple

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The District of Columbia Constitutional Convention? unfortunately did not follow this practical suggestion in drafting the Constitution for the State of New Columbia. The Convention instead produced a document that squarely rejected the federal Constitution, both as a model and as a substantive document."

This result was not accidental. The majority of convention delegates envisioned the new constitution as a means of establishing “a model government, that (would) set the tone for progressive governments for decades to come" embodied in a document incorporating provisions "original in thought and futuristic.” The stated primary goals of the Constitution were to eliminate discrimination, and to end the status of Washington, D.C. as a “colonial city." Furthermore, despite the “pleth

mented each of the author's Transcript citations with references to the name of the quoted delegate.

When this Anicle went to press, a legislative history of the New Columbia Constitution was being prepared, but was not yet published. During the course of the Constitutional Convention various committees submitted to the delegates their reports on the provisions they drafted. As an elected delegate, the author received most, but not all, of these reports. He has assembled the reports and other official documents pertaining to the proposed preamble and Bill of Rights in a Compilation of Documents Pertaining to the Drafting of the Preamble and Bill of Rights (hereinafter cited as Compilation), a complete copy of which is on file at The American University Law Review.

2. The Statehood Constitutional Convention Initiative, adopted by the voters November 4, 1980, mandated an election of delegates. D.C. CODE ANN. SS 1-111 to -117 (Michie 1981 & Supp. 1982). Specifically, five at-large delegates were elected along with five delegates from each of the eight wards in the District of Columbia. Id. § 1-114(a). It is unfortunate that the Convention did not use a drafting commission as did the Maryland constitutional convention of 1967-68. See J. WHEELER, JR. & M. KINSEY, MAGNIFICENT FAILURE—THE MARYLAND STATE CONSTITUTION OF 1967-68, at 15-23 (1970); see also infra note 12 (discussing Convention schedule).

3. The Constitutional Convention's Rights Committee recommended the name of “Potomac” for the state. The delegates considered this and other names, such as “North Potomac,” “South Potomac,” “Banneker,” “Anacostia,” and “Utopia.” See Compilation, supre note 1, at 287 (Rights Committee recommendation on names for new state) (May 26, 1982)). The Convention adopted the name "New Columbia" on May 27, 1982. Transcript, supra note 1, at 180 (May 27, 1982T (18 votes for “New Columbia"; 11 for "Anacostia”). The name "Columbia" had been suggested previously. See Perry, The Scale of Columbia, 9 Geo. L.J. 13-27 (Apr. 1921) (discussing the power of Congress, absent constitutional amendment, to create a state out of the District).

4. The Convention usually considered amendments to substitute language from the federal | Bill of Rights to be “{unisconstructive,” Transcript, supra note 1, at 178 (May 24, 1982) (statement of Delegate Marcus regarding proposed grand jury provision), or to be “subterfuge." Id at 19 (May 26, 1982) (statement of Delegate and Convention President Cassell on the need for New Columbia Constitution to go beyond perceived inadequacies of United States Constitution).

The Rights Committee and a majority of the delegates also chose to disregard the substance of the Model Bill of Rights that “follows the U.S. Bill of Rights not only because of its excellence but also because its terms have achieved considerable uniformity of meaning through repeated construction in the courts.” See NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONSTITUTION, art. 1 (6th rev. ed. 1968) (hereinafter cited as MODEL STATE CONST.). Illustrative of the rationale for rejection of the federal and Model Bill of Rights is a Convention officer's statement: “I'm very much concerned with the way in which the federal Constitution is being proposed to be substituted for work the committee has done .... (Maybe we don't need to be here if we just adopt the federal Constitution.” Transcript, supra note 1, at 175 (May 24, 1982) (statement of Delegate and Second Vice President Harris).

5. See, 6.8., Transcript, supra note 1, at 93 (May 29, 1982) (statement of Delegate and Second Vice President Harris).

6. See, 6.g., id at 87 (statement of Delegate Shelton).

7. The United States is “one of the very few nations in the western world which relegates its national capital to colonial status." Id at 104 (statement of Convention President Cassell). See id.

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THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 32:635 ora of suits" that might arise, the Convention sought to provide a remedy for every conceivable injury to a person by the state. The inclusion of highly detailed provisions was intended to prevent legislative and judicial interference with the new constitutional provisions.

The drafting of a constitution is undoubtedly one of the most frustrating and exasperating political exercises in modern government. 10 The drafting of the proposed New Columbia Constitution was no exception. Physical conditions and time constraints, over which the Convention had no control, further complicated the process." Nonetheless, the

at 17-18 (Apr. 26, 1982) (statement of Delegate Kameny) (“the driving force which brought us all here for this convention . . . (was) the desire to relieve ourselves of our colonial status"). The president of the Constitutional Convention described the proposed draft of the constitution as "the most progressive official state document produced in the history of this nation," one that accurately reflects an awareness of the District of Columbia's “182 years as a colonial city.” Cassell, Leating to Stalchood, Wash. Post, June 6, 1982, at C8, col. 1.

In 1973 Congress enacted the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973). The Act gave to District residents many of the rights associated with self-government, including election of their own mayor and city council. For a comprehensive analysis of the Act, see Newman & DePuy, Bringing Democracy lo the Nation's Lasi Colony: The District of Columbia Self-Government Act, 24 AM. U.L. Rev. 537 (1975). Congress has, however, retained substantial control in many areas, including appropriations.

Some traditionally attribute absence of a right to vote to the federal Constitution's conditioning of representation on statehood, and to Congress' unwillingness to rectify this situation by constitutional amendment. See Franchino, The Constitutionality of Home Rule and National Representation for the District of Columbia, 46 Geo. L.J. 207 (1957-1958) (only constitutional amendment or congressional enactment in form of Home Rule Act can remedy disenfranchisement of the District). Bul see Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 HARV. J. ON LEGIS. 167 (1975) (case law supports inclusion of the District as a nominal state).

8. The Rights Subcommittee drafted the provision to eliminate even limited sovereign immunity, see infra notes 329-44 and accompanying text, because it firmly believed that "[t]here (should) be a remedy for every injury to the person, property, privacy and reputation." Compilation, supra note 1, at 44 (Rights Subcommittee, Report on Concepts Recommended for Inclusion in the Bill of Rights (Apr. 5, 1982)). See also Transcripc, supra note 1, at 146 (May 25, 1982) (statement of Convention President Cassell) (“I don't particularly care if (the loss of sovereign immunity will] bring . . . a plethora of suits against the state government.").

In addition to the "plethora of suits” that undoubtedly will arise if sovereign immunity is eliminated, litigation will ensue because many of the sections of the proposed constitution are novel. The Convention General Counsel made this point: “[The) problem that I have is that this (section 15, on habeas corpus) is new unique language. Whenever you put language in a constitution that is not standard, you create a whole new set of litigation." id at 116 (statement of Convention General Counsel Thomas). The observation also has been made that "[t]he evils of overly specific, overly long and overly detailed state constitutions ... (are that they) usually hamper the state's ability to meet the demands of changing times." MODEL STATE CONST., supra note 4, at 37 (commentary on article IT). See ich (“specific grant of power in state constitution implies limitation on exercise of all powers not expressly granted; commonly, this difficulty has arisen in states with overly specific and detailed constitutions'). See also D. LOCKARD, THE POLITICS OF STATE AND LOCAL GOVERNMENT 85-86 (1963) (wealth of detailed provisions invites litigation).

9. The Convention apparently reasoned that writing detailed provisions would restrict legislative and judicial second-guessing of the Convention's intentions. Sco, c.8., Transcript, supra note 1, at 172 (May 24, 1982) (statement of Delegate Kameny) (righus are made constitutional to avoid nullification of those righus by legislature).

10. See generally J. WHEELER JR. & M. KINSEY, supra note 2.

11. The Convention's meetings often were marked by “considerable chaos." See Transcript, supra note 1, at 17 (Apr. 29, 1982) (statement of Convention President Cassell, commenting on lengthy discussions of rules governing Convention debate). See also is at 18-22 (discussion of how to maintain order and schedule throughout the proceedings); id at 144 (Apr. 27, 1982) (exchange

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Convention was able to produce in this environment a document containing over 250 separate sections and subsections comprised of over 15,000 words. 12

This Article focuses on only two portions of the proposed constitution: the preamble and the Bill of Rights. At the beginning of each section of this Article, the relevant portion of the constitution is reprinted.13 In addition, an appendix contains the sections and subsections, in the same order as presented in the Article and incorporating both the language of the version reported out of committee and of the version that the Convention eventually adopted. The Article provides an explanation of the action taken by the Convention on the pertinent section and the rationale behind it. Each provision is discussed in light of the present state of the law; the possible problems and benefits attendant to the provision are examined. This section-by-section analysis clearly shows that the proposed constitution's preamble and Bill of Rights pose myriad legal and practical issues, 14 only some of which the constitutional convention

between delegates); id. at 75-76 (May 3, 1982) (statement of Convention President Cassell, chiding delegate's failure to comply with rules of decorum); id at 40-41 (May 11, 1982) (statement of Convention President Cassell, warning delegate to respect the chair); id at 229 (May 25, 1982) (statement of Convention Chairperson and Third Vice President Freeman, requesting that delegates refrain from continuing "chaotic disturbances').

Evening sessions were required because most of the delegates had full-time jobs. Twenty-five sessions, commencing on April 26, produced over 6000 transcript pages and lasted an average of four hours each. See is at 6 (May 29, 1982) (statement of Convention President Cassell, praising the Convention for completing the writing of the constitution under adverse circumstances). The Convention's physical facilities were minimal, at best. Its staff was severely limited; its budget of $150,000 was grossly inadequate. Additionally, the Convention confronted a 90-day time constraint. Other constitutional conventions routinely have had one or more years to create their respective documents. Cassell, supra note 7.

12. The schedule for drafting the New Columbia Constitution and its adoption by area residents were expeditious. After the election of 45 delegates in November 1981, ses spre note 2, the delegates met in informal committee sessions for briefings and discussions on the various portions of the proposed constitution from January through the middle of April 1982. The first plenary session of the Convention was held April 26. See Transcript, supra note 1, at 7 (Apr. 26, 1982). After the formal adoption of rules, debate commenced on the proposed preamble. The first reading of the articles was substantially completed by May 26. See id at 115 May 26, 1982). The third reading and adoption of the entire document took place on May 29. See ich at 17-85 (May 29, 1982). The proposed constitution was adopted by a vote of 36 ayes, 2 nays, and 4 abstentions. Id at 134-39, 142. One of three absent delegates, Delegate Garner, submitted his dissent for the record. Id at 121-22. Delegates signed the document on May 29, 1982, signifying solely its adoption on that date. Il at 142-52.

District of Columbia voters adopted the document by a majority vote on November 2, 1982. The electoral vote was 61,405 (52.8%) in favor of passage, 54,964 (47.2%) against passage. 29 D.C. Reg. 5253 (1982). For a description of the steps that must now be taken in order for the District to become a state, sec infra note 20.

13. In some cases, the paragraphs within each section have been lettered (A), (B), (C), etc., for the case of cross-referencing.

14. This Article does not purport to be an exhaustive analysis of the legal questions raised by the proposed constitution. Unless the provisions of a constitution or any law can pass a threshold test of legality, feasibility, and advisability, examination of its more subtle implications is futile. By highlighting certain manifest legal and practical shortcomings, this Article attempu to demon. strate that the proposed preamble and Bill of Righu fail to pass even this threshold test.

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THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 32:635 delegates understood or anticipated. The proposed provisions generally go beyond the comparable provisions in the United States Constitution, both in number and breadth of guaranteed rights. Of course, this characteristic is not fatal to the proposed New Columbia Constitution. The federal Bill of Rights establishes only a minimum number of guaranteed individual protections. States may—and often do choose to guarantee to their own citizens more than the minimum, federally guaranteed individual rights."

Rather than representing a potential abuse of federally guaranteed rights, however, the proposed preamble and Bill of Rights create potential abuse of another sort, 16 The proposed provisions, by attempting to protect citizens from all conceivable injuries at the hands of state government,"? would create a state that inherently would be weak and vulnerable to attack by individuals. 18 The ultimate result of this theory and form of government would be the creation of a "manacled state”. state in which the capacity for self-government is extremely, if not fatally, impaired. 19 This Article concludes with a set of recommendations that highlight weaknesses in the proposed constitution and that may be

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15. E.g., Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), af's 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979) (California Constitution's free speech clause created right that was broader than right created by first amendment to the United States Constitution).

16. As written, the provisions of the proposed Bill of Rights generally do not suggest, on their face, conflict with the comparable provisions of the federal Constitution. One exception may be the declared lawfulness of certain affirmative action programs. See New COLUMBIA CONST. art. I, § 3 (proposed May 29, 1982), discussed infra notes 90-92 and accompanying text. Other differences are discussed hereafter.

17. Such an approach evidences deep doubts about the desire or ability of an elected legislature to provide desired individual protections. One commentator has suggested: “If you are rather suspicious of the people who rule, you will put a lot of restrictions into the constitution . . . . [11] you do trust your government, you find you need fewer words and a lesser number of anxious clauses in your constitution.” Grafton, Needed: A Short, Viral Charter for New York, 6 LITHOPINION 3, 4-5 (1967). See also MODEL STATE CONST., supra note 4, at viii (Introduction) (overelaboration of checks and balances in state constitution may represent disillusionment with representative institutions and desire to prevent “sin').

18. Each section in article I (the Bill of Rights) of the proposed constitution is self-executing. See New COLUMBIA CONST. art. I, § 24 (proposed May 29, 1982), discussed infra notes 399-407 and accompanying text. Thus, without any enabling legislation by the new state legislature, each provision of the Bill of Rights would be operative. See Downs v. Birmingham, 240 Ala. 177, 198 So. 231 (1940). The drafters of this provision explicitly expressed their intention of creating a private right of action for the enforcement of every section. See infra notes 400-07 and accompanying text. Thus, any citizen may bring suit for infringement by the state of any right embodied in the Bill of Rights. Furthermore, 8 23 of the Bill of Rights, which implies the existence of unenumerated limitations on the new state government, see infra notes 392-98 and accompanying text, raises the spectre of innumerable, as-yet-unforeseen bases on which New Columbia citizens could sue their government. Under the proposed constitution, the doctrine of sovereign immunity would not protect the new state from having to defend any of these suits, because proposed § 17 would abolish sovereign immunity. See infra notes 329-44 and accompanying text.

19. The phrase "manacled state” first appeared in Ford, The Influence of Siate Politics in Expanding Federal Power, 5 PROC. AM. POL. Sc. Ass'n 53, 63 (1908). One commentator has cautioned against a highly detailed constitution:

Perhaps the gravest objection to a needlessly detailed constitution is that it impains the state's capacity for self-government. To the extent that a government is kept from doing

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