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useful during any subsequent review of the document.20

I. PREAMBLE

We, the people of the free and sovereign State of New Columbia, seek to secure and provide for each person: health, safety and welfare; a peaceful and orderly life; and the right to legal, social, and economic justice and equality.

We recognize our unique and special history and the diversity and pluralism of our people, and we have determined to control our collective destiny, maximize our individual freedom, and govern ourselves democratically, guaranteeing to each individual and the people collectively, complete and equal exercise and protection of the rights listed herein.

We reach out to all the peoples of the world in a spirit of friendship and cooperation, certain that together we can build a future of peace and harmony.

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harm by detailed restrictions on the exercise of its power, it is also kept from doing good, i.e., in providing for the needs of its people in the most reasonable and effective manner. R. DISHMAN, State ConstitUTIONS: THE Shape of the DOCUMENT 36-37 (State Constitutional Studies Project No. 1, rev. ed. 1968). See also MODEL State Const., supra note 4, at ix (Introduction) (the document should not be “a strait-jacket and handcuffs on government”).

20. Congress must review the proposed constitution before the President proclaims that the District is a state. The United States Constitution provides that “New States may be admitted into this Union," but does not define the procedure by which Congress may grant admission. See U.S. CONST. art. IV, § 3, cl. 1. The statehood initiative legislation, D.C. CODE ANN. § 1-113(b) (Michie 1981), amended by D.C. Act 4-204, June 21, 1982, 29 D.C. Reg. 2761 (1982), requires the Mayor to submit the proposed constitution to the United States Congress.

Once the Mayor does so, Congress, by a simple majority of both houses, may pass an enabling act, including suggested changes, that must be adopted by a majority vote in each House. Presidential signature would then be required. If procured, statehood is effected by presidential proclamation. If Congress makes suggested changes to the document, however, another vote by citizens of the District would be required. For a summary of the procedures available to Congress for admission of a new state, see Statehood Initiative: Hearing and Markup on H. Conf. Res. 75 Before the Comm. on the District of Columbia House of Representatives, 97th Cong., 1st Sess. 73-196 (1981) (reports of the Congressional Research Service).

Although Congress technically cannot impose its will on the citizens of the District by requiring specific amendments to the proposed constitution, it certainly can withhold approval of the Constitution until it is satisfied with the document. The proposed constitution provides that it may be amended after adoption by the voters, but before it goes into effect. See NEW COLUMbia Const. art. XVIII, § 9 (proposed May 29, 1982) (Amendments Before the Constitution Enters into Force). Article XVIII, section 9, provides that amendments must be recommended affirmatively by a District of Columbia Statehood Constitutional Convention or by the Council of the District of Columbia on two-thirds vote and that amendments must be adopted by the District's voters.

In the final days of the November 1982 ratification campaign, supporters of the proposed constitution argued that, because changes could and would be made by the City Council and even by the Convention before submission of the constitution to Congress, criticized sections of the document then could be rectified. Proposed emergency legislation, which authorized the City Council or the Convention to draft amendments, passed on first reading before the election, but after the election was tabled by its sponsor. As soon as the election was over, this representation to the public was forgotten. See Letter from Convention President Charles I. Cassell to Convention Delegates (Nov. 25, 1982). “Although some delegates, in their enthusiastic championing of an affirmative vote for the constitution, may have suggested otherwise to their friends, the law clearly delineates the next step in our historic march toward representative government—transmission of the voter-approved constitution to Congress by the Mayor." Id. at 2.

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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 32:635 Therefore, being mindful that government exists to serve every person, we do adopt this constitution and establish this government. A member of the Rights Committee, who was the principle drafter of the preamble, described it as "like no other. . . [W]e wrote our own Preamble, because this is our state."22 The proposed New Columbia Constitution preamble is novel in its range of context, in its objectives, and in its rejection of traditional constitutional language. The Chairman of the Rights Committee's Subcommittee on the Preamble described the broad range of subject matter as necessitated by the unique character of the District of Columbia.23

The Subcommittee on the Preamble24 as well as the Convention's General Counsel recognized that the preamble set forth "general principles and paramount concerns of the framers" and those things the state sought to accomplish as "desirable goals."25 These "general principles, as developed during debate, were to emphasize the special past history of the District as a colony,26 to ensure the maximum amount of personal freedom,27 and to alleviate and ameliorate the "entrenched patterns of injustice and disadvantage" endemic to the District.28

The Convention either ruled out of order or defeated by large majorities amendments to the preamble based on the language and concepts of other state constitutions. For example, the Convention rejected any references in the preamble to the concept of "liberty,' "29 to the United States Constitution as a model,30 and to being "[g]rateful to God."31

21. NEW COLUMBIA CONST. preamble (proposed May 29, 1982). 22. See Transcript, supra note 1, at 14 (Apr. 26, 1982).

23. See id. at 47 (statement of Delegate Marcus).

24. The Rights Committee established the Subcommittee on the Preamble on March 1, 1982. See Compilation, supra note 1, at 199, 210A (Rights Committee Report on Proposed Preamble (Mar. 22, 1982)). The Subcommittee submitted its preliminary report to the full Rights Committee on March 20, 1982. See id. at 197-210 (Draft Committee Report to accompany Preamble (Mar. 20, 1982)). The March 22d "Report on Proposed Preamble," compiled by the full Rights Committee, was not circulated to the Convention until April 20, 1982. See id. at 210A-223 (Rights Committee Report on Proposed Preamble (Mar. 22, 1982)). After several hours of debate, delegates adopted the preamble in its final form on April 26, 1982. See Transcript, supra note 1, at 165-69 (Apr. 26, 1982).

25. Transcript, supra note 1, at 57-59 (Apr. 26, 1982) (statement of Convention General Counsel Thomas); id at 39 (statement of Delegate Kameny).

26. Id. at 16 (statement of Delegate Kameny).

27. The speaker, Delegate Kameny, Chairman of the Subcommittee on Preamble, explained why this language was included: “There are a number of us who come from very different kinds of contexts within the community where in one way or another... our personal rights and freedoms, in fact, were not the maximum." Id. at 49-50.

28. Compilation, supra note 1, at 212 (Rights Committee Report on Proposed Preamble (Mar. 22, 1982)).

29. See Transcript, supra note 1, at 126-33 (Apr. 26, 1982) (discussion of amendment, including language on “liberty" ruled out of order).

30. Id. at 14:-62 (amendment proposed by Delegate Rothschild defeated by substantial margin).

31. Id at 103-09 (amendment proposed by Delegate Robinson, to ensure that proposed constitution would not lead to prohibition of religion).

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The Convention also voted down a more complete revision to the preamble, which would have incorporated references to the new state as part of the Union, to the unique historical role of the District as the National Capital, and to reaching out to “all democratically minded peoples of the world.”32

The phrase "like no other”33 fairly accurately can be applied to the preamble of the proposed New Columbia Constitution. Unlike the preambles to most other state constitutions, or the preamble to the Model State Constitution, the Convention's preamble is extremely long, comprising 4 paragraphs and nearly 140 words.34 Prolixity, of course, is not a drafting sin in itself. Nonetheless, the accepted purpose of a preamble is to “serve as an aid to the interpretation of the rest of the document." Yet, the goals mentioned in the proposed constitution's preamble are wide-ranging and vague, running the gamut from the "rights” of “the people" to world "peace and harmony."36 It should not be surprising, therefore, if in practice the preamble to the New Columbia Constitution provides little help in interpreting the remainder of the document.

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32. A complete revision of the preamble included a reference to the new state as a part of the United States. See id at 85-102 (proposed language and Convention debate thereon); Compilation, supra note 1, at 225-27 (proposed substitution for the preamble, sponsored by author, Delegate Garner, and Delegate H. Thomas, dated Apr. 26, 1982) (attempt to correct Rights Committee's failure to express some relationship between the District and the Federal Government). The Convention rejected the proposed revision after a Rights Committee member, Delegate J. Moore, claimed that he had “serious reservations about any Delegate who undertakes to become a committee and report to the convention without commentary from any other Delegate on a serious matter of this proportion." Transcript, supra note 1, at 90 (Apr. 26, 1982). The proposed substitute language, Delegate Moore asserted, "would embarrass the committee." Id. at 91.

Delegate Holmes also criticized the proposed reference to the relationship between the District of Columbia and the United States. Like Delegate Moore, she asserted that the Preamble Committee had considered and purposefully rejected the suggested language. Id at 93-94. See also id. at 15 (Statement of Delegate Kameny, reciting the attention to detail with which the Committee on Preamble considered and selected from other state constitutions and the model constitution). But see MODEL STATE CONST., supra note 4, at preamble (“recognizing the rights and duties of this state as part of the federal system of government, [we] reaffirm our adherence to the [U.S.] Constitution”). 33. Transcript, supra note 1, at 14 (Apr. 26, 1982) (statement of Delegate Kameny). 34. See, e.g., GA. CONST. preamble (five lines); KY. CONST. preamble (six lines); Miss. CONST. preamble (three lines); MO. CONST. preamble (three lines); MONT. CONST. preamble (five lines); NEV. CONST. preamble (three lines); OR. CONST. preamble (two lines); UTAH CONST. preamble (two lines); WIS. CONST. preamble (three lines); WYO. CONST. preamble (four lines). Vermont has no preamble. See also MODEL STATE CONST., supra note 4, at preamble (six lines); U.S. CONST. preamble (five lines).

35. Id at 24 (Comment on preamble). Preambles do not create any substantive rights. See, 4.g., Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) (federal Constitution); In re Apportionment Law, 263 So.2d 797, 806 (Fla. 1972) (Florida Constitution). A preamble serves only to enunciate the spirit by which a constitution should be interpreted.

36. The preamble to the Hawaii Constitution appears to have served as a model for the Rights Committee in drafting the New Columbia preamble. See Compilation, supra note 1, at 216 (Report of Subcommittee on Preamble (Mar. 8, 1982)).

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II. BILL OF RIGHTS

A. Introduction to the Bill of Rights

The Rights Committee had more time to develop article I of the Constitution, the Bill of Rights, than any other Committee in the Convention had for its section.37 Yet the Rights Committee took no public action on the proposed Bill of Rights until May 21, 1982, when the Committee circulated a draft at the Convention.38 Circulation of the draft took place a mere eight days before the Convention's ultimate vote on the constitution. A day after circulation of the draft, the Subcommittee on the Article on Rights (Rights Subcommittee) submitted to the Convention an informal explanation of the article. This explanation, however, did not comment on at least seven of the then-proposed twenty-three sections.39 The full Committee never submitted a final or complete report to the Convention.40

The first reading of article I commenced on the evening of May 24, 1982.41 Debate, amendments, and revisions were completed late on May 26.42 A sense of too little time, as well as antipathy toward proposed amendments or substitutions, characterized much of the debate

37. The provisions of the Preamble and Bill of Rights were the last to be debated by the Convention. See Transcript, supra note 1, at 114-15 (Apr. 26, 1982) (statement of Delegate and First Vice President Baldwin, explaining the schedule for Convention debate).

Committee files supply some of the information necessary to understand the Committee's procedure for drafting the sections prior to debate. Sometime in March 1982, the full Committee established a Subcommittee on Rights. After a review of 26 state constitutions, the Subcommittee selected a set of "concepts" it thought the constitution should include. The Subcommittee submitted the concepts on March 24, see Compilation, supra note 1, at 88 (Conceptual Guide prepared for Committee on Preamble and Rights), and April 5, see id. at 40 (Rights Subcommittee, Report on Concepts Recommended for Inclusion in the Bill of Rights (Apr. 5, 1982)), to the full Committee in connection with public hearings held April 12 and 14, 1982.

38. See Compilation, supra note 1, at 229-39 (Committee on Preamble and Bill of Rights, Committee Proposal SC1-1A-0021, dated May 21, 1982) (containing transmittal memo from Committee to Convention Secretary and all sections of Bill of Rights as reported out of full Committee and circulated among Convention delegates on May 21, 1982) [hereinafter cited as Rights Committee Proposal]). The Rights Committee Proposal contained some commentary, and the transmittal memo indicated that a legislative history of the Bill of Rights would be forthcoming. None was; thus, the Committee's intent with regard to particular provisions of the preamble and Bill of Rights must be gleaned largely from debate on the floor and, where appropriate, the incomplete report of the Rights Subcommittee. See infra note 39 (describing Rights Subcommittee's report).

39. See Compilation, supra note 1, at 289F-312 (Rights Subcommittee, Report on the Article on Rights (May 22, 1982)). The May 22d report, which was unpaginated, lacked explanation for many important proposed provisions dealing with civil and criminal rights, such as the section on searches and seizures (now § 6), and the section on arrestees' and defendants' rights (now § 7). The report indicated that a second volume (presumably covering the missing sections) would be forthcoming. To the author's best knowledge, the Subcommittee never prepared the second volume. 40. A written request to the Convention Secretary, as well as inquiries to the Statehood Commission-Convention Staff in November and December 1982, elicited no such report.

41. See Transcript, supra note 1, at 53 (May 24, 1982) (statement of Delegate and First Vice President Baldwin).

42. See id. at 97-98 (May 26, 1982). The transcript erroneously states that the article was adopted "unanimously" by voice vote.

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on the Bill of Rights.43 Moreover, lack of explanation of the Committee's proposals disturbed some delegates. Nonetheless, the Bill of Rights, along with the balance of the proposed constitution, was adopted by the Convention on May 29, 1982.45

The Bill of Rights may be divided roughly into seven separate areas of law. The first area, civil rights, comprises sections 1 through 4. The second area, contained in sections 5 through 16 and 18, is the criminal justice system. The other areas covered are sovereign immunity, section 17; civil suits, section 19; labor, sections 20 and 21; the "right to change," section 22; and miscellaneous provisions, sections 23 and 24, concerning unenumerated rights and the self-execution of the Bill of Rights.46

B. Freedom of Association

Section 1. Freedom of Association, Assembly, Expression, and Petition. Freedom of association, assembly, press, speech, and other forms of expression, and petition for redress of grievances, shall not be abridged.47

Except for a proposed provision regarding freedom of the press,48 the rights covered by section 1 of the proposed Bill of Rights generally inspired little or no debate on the Convention floor. According to the Rights Subcommittee, section 1 was intended to protect a wide range of expressive forms, including non-verbal and non-written communications, such as symbolic conduct, bodily gestures, and photographs.49 The section also was designed to preserve forums for minority and un

43. Delegates with concerns differing from those of the Rights Committee sensed apathy or hostility to their motions for clarification and proposed amendments. For instance, a Rights Committee member dismissed the suggestion to include language from the federal Constitution as "meaningless" and urged other delegates to “ignore it." Id. at 103 (May 24, 1982) (Statement of Delegate Kameny during debate on the Convention's failure to include equal protection language in the proposed constitution).

44. See, e.g., id. at 115 (statement of Delegate Eichorn in response to explanation by Committee members on habeas corpus provision) (“we understand the committee's explanation but not the impact"); id at 298 (statement of author expressing concern that language of the section on rights of the disabled was vague and "could mean anything").

45. Id. at 134-39 (May 29, 1982).

46. The New Columbia Constitution contains more than 130 “freedoms” and “rights." More than 100 rights are recognized or created by the Bill of Rights alone. Except for requiring citizens to "refrain from environmental impairment,” New Columbia CONST. art. IX, § 2(C) (proposed May 29, 1982), however, the proposed constitution contains no provisions imposing affirmative duties on the citizens of the state. C HAWAII CONST. art. I, § 2, which provides in pertinent part: "These rights cannot endure unless the people recognize their corresponding obligations and responsibilities." See also Mass. CONST. art. X, pt. 1st: "Each individual of the society has a right to be protected by it. . . . He is obliged, Consequently, to contribute his share to the expence of this protection; to give his personal service, or an equivalent, when necessary."

47. NEW COLUMBIA CONST. art. I, § 1 (proposed May 29, 1982).

48. See infra notes 56-62 and accompanying text.

49. Compilation, supra note 1, at 293 (Rights Subcommittee Report on the Article on Rights (May 22, 1982)) (footnotes omitted).