Section 1.1. Foundational Rights
What is meant by “foundational” rights?
Foundational rights are those unalienable rights upon which this constitution is founded. Virtually every policy stated in this constitution flows from those rights.
Most people agree with the statement “People should be free to do whatever they want, as long as they don't violate the rights of others.” But when it comes to specifying exactly what those rights are, there is wide disagreement.
In these pages, we get very specific about each of the rights and why they warrant protection, as opposed to things that are not rights.
Why permit violence against someone “with informed consent where no lethality nor permanent injury is intended”?
This exception is necessary to allow for contact sports. It still excludes things like “assisted suicide”, which, even with the “consent” of the victim, is prohibited because lethality is intended.
Life will be protected beginning at conception? Half the people in America will disagree with that.
This constitution is not written to appeal to a majority of people in the U.S. today. It’s written to absolutely protect human rights and to minimize government. People who want compromise can find plenty of compromise in the U.S. and other nations already.
What makes you think an embryo is “alive” and “fully human”?
Modern medical tests prove that human embryos are by definition alive, as indicated by their measurable growth, development, and metabolism. And genetic tests prove they are human as defined by their human DNA. No surprise there, since both of the parents are human. Yet the embryo’s DNA is distinct from that of the parents. Therefore, they are unique, living human beings, and, like every other innocent human being, deserve equal protection from violence…regardless of age, visibility, appearance, location, or size.
What is meant by “innocent” life? What if the embryo formed as a result of rape?
Of course the perpetrator is not innocent. But an embryo is not guilty of anything. As you read further in the UTL constitution, you’ll see a provision allowing medical treatment to prevent fertilization of a human egg, or prevent implantation of a fertilized egg (embryo) following a promptly reported sexual assault. Preventing the implantation of an embryo amounts to a very early abortion, but most reasonable people would not deny this option to rape victims.
Are you trying to establish a theocracy?
No. But as in the U.S., this new constitution is based on Judeo-Christian ethics and principles.
Does “misleading” someone into consuming an “imminently physically harmful” substance include actions such as giving tobacco to children?
No, this provision is intended to prohibit any assault which could appear non-violent, such as intentional food poisoning, which is not apparent to the victim until it takes effect. The goal here is to leave no gaps in protecting the right to life.
Giving or selling tobacco to minors would be prohibited by local or Territory laws.
What would be an example of “physically preventing” any person from receiving air, water, or food?
Examples of “physically preventing” include: willfully blocking someone’s access to those necessities; blocking family members or volunteers from bringing those necessities to the person; and a parent or guardian willfully withholding necessities from a dependent, by force or by neglect. In contrast, having a government that does not hand out free food and water to people, but protects the right of others to provide those necessities, is an example of liberty.
Why prohibit people from “exhibiting vulnerability to injury”?
We propose this instead of vague “disorderly conduct” and “drunk and disorderly” laws. In the UTL, we won’t make it a crime to be “disorderly”, because such a law can be enforced arbitrarily, depending on what behaviors the authorities want to label as “disorderly”.
If somebody is simply sitting or standing on public property, there is no violation. But if he’s staggering, he’s vulnerable to injury as he risks wandering into traffic or falling down. If he’s lying down, he may be a trip hazard or may risk injury from exposure, for example. Law enforcement must intervene and see whether he is intoxicated, injured, ill, exhausted, etc. Intoxication may result in a citation under the reckless action provision. Otherwise, the intervention may simply expedite first aid or transport to a safe place for the victim. This protects the violator as well as the public.
What do you mean by “reckless action with the potential to cause injury to...people who have not consented to the risk”?
This includes things like driving while intoxicated, installing a stairway that fails to meet building codes, and setting a leghold trap. Note that it only applies in places open to the public, like public roads, public waterways, and retail establishments. A landowner could still set up animal traps on his own land if it’s closed to the public, depending on local anti-cruelty laws. And he could legally permit his guests to drive while intoxicated on his private land, at their own risk. However, his guests could sue him if they were injured on his rickety stairway without consenting to the risk, for example.
“People who have not consented to the risk” excludes those who have consented to the risk of participating in a contact sport, for instance.
No military draft? What if there’s a major war?
In Human Events (1979), Ronald Reagan wrote “America was founded on the principle of individual liberty - that the government exists to serve, not enslave, the people. Yet conscription is a form of slavery, a horrible and costly exception to America’s founding principle. It is morally repugnant to the ideals of a free society. Without the draft, unpopular wars are very difficult to fight. The ability to use conscription actually encourages politicians to wage even more wars…”
Compensation for military personnel will be sufficiently attractive to fully staff the armed services. If a personnel shortage develops, the incentives for enlistment will be increased until the shortage is eliminated.
Does having sovereignty over your body mean you could sell it, or rent it out?
Legally, no person could be bought, sold, or owned. To “rent” yourself out would mean selling your time or labor, as an employee or contractor. In the United Territories of Liberty, we reject the concept of government control over your body, “protecting” you from your own freely chosen actions for which you are responsible. An adult’s private behavior, unless violating someone else’s rights, is nobody else’s business, not even the government’s. An exception might be someone who ostensibly consents to being imprisoned or abused. In that case, the local authorities, if alerted, could intervene to assess the danger of significant injury and whether he is of the age or mental competence to legally consent to such activity.
Territorial laws would govern these actions. They would aim to draw distinctions between activities such as boxing matches, which are usually refereed to prevent serious injuries, versus other consensual injurious behavior. In any case, such activities could only be conducted on private property, as Section 1.1 specifies that any attempt to injure anyone, including one's self, in a public place or on government property is prohibited.
Since you own your body, can you legally use any drug you want?
Individual Territories would govern that issue, because this constitution is silent on it. However, Section 1.1 mentions that “hazardous chemical…materials” would be prohibited due to “potential indiscriminate physical harm to people and/or property”, which may include methamphetamine laboratories, known to cause explosions, fires, and contamination of air in the surrounding area.
Abortifacient drugs (which cause abortion) would generally be prohibited as hazardous chemical or biological materials impractical for personal defense, per Section 1.1, as they are lethal to prenatal children.
A Territory could restrict possession and use of recreational drugs to consenting adults only, and limit their usage to private property only, for example. If illegal to transport such drugs across all other property, then all cultivation, manufacture, storage, and use of recreational drugs would be confined to the private property of the operator. This would make it impossible to distribute the drugs legally, since all private property is bounded by the property of others and/or by public property such as roads. This creates the likelihood of “drug ranches” opening for business, perhaps restricted by zoning laws, but that's a consequence of having a society based on liberty.
The public can freely expose, protest, and boycott any business like that. Never in history have there been so many forums upon which unlimited numbers of people can promptly record and broadcast their opposition, or their support, in detail. In the UTL, we will let public pressure, not the force of government regulation, drive the legal choices that consumers and business owners make.
Where is the ban on slavery?
Read the statement under Liberty in Section 1.1, which clearly prohibits slavery. We are trying to avoid needless repetition in this constitution.
Why doesn’t it specify equal rights for people of all races, religions, genders, disabilities, etc.?
It does. What part of “...all people...” and “No person…” do you not understand? The UTL constitution assumes the terms “person” and “people” include all living human beings. It’s neither necessary nor possible to create a list of all types of people and their characteristics. Such a list could never be complete.
Falsely shouting "Fire" in a crowded theater is the classic example of "a clear and present danger to public safety”, right?
Why outlaw “visual effects emitted at such high luminosity… as to cause physical interference with the lives and activities of others”?
This prohibits people from using excessively bright lights, including lasers, in such a way that physically disturbs or harms others, not simply distracts them. People won’t be able to legally claim that such conduct is “free expression”. This is one alternative to some vague and arbitrarily enforced laws against “disorderly conduct”, “disturbing the peace”, or “public nuisance”.
What is “a private setting in a public facility”?
An example of a private setting in a public facility would be a public restroom, because users have a reasonable expectation of privacy there.
Without government regulation of broadcast signal content, how can parents protect their children from pornography or other objectionable content?
There would be no government regulation of those signals. Instead, we would rely on the broadcast industry, motivated by demand and pressure from the public, to apply encryption that scrambles adult programming, requiring an optional system to decode the signal. This is basically no different than what exists in the U.S. today.
How can you let a business or a club exclude someone from being a customer or a member?
In 1990, James Dale was a 19-year-old assistant scoutmaster of a Boy Scout Troop in New Jersey. During this time, he became co-president of the Rutgers University Lesbian/Gay Alliance. This was public information, not a secret. Since the Boy Scouts specifically forbid membership to homosexuals, they revoked his membership. Dale sued them.
The New Jersey Supreme Court ruled in Dale’s favor, writing that New Jersey has a compelling interest in “eliminating the destructive consequences of discrimination from our society."
The Boy Scouts of America then appealed the case to the U.S. Supreme Court, which in Boy Scouts of America v. Dale ruled in favor of the Boy Scouts. The court granted that the Boy Scouts’ goal to instill certain values in young people gave them the right to use criteria for membership.
The Boy Scouts ruling was correct for freedom of association, but the issue should never have required Court involvement. Say, for example, you created a women’s group, whether open to the public or not, for the purposes of promoting atheism. Should you be forced to allow Christian men to join, attend, and speak at your events? Should the Supreme Court agree to take the case on behalf of the men? Why don’t the men just go find or create their own group instead?
Prior to 1999, the Professional Golfers Association (PGA) had required golfers to walk between shots during the third stage of the qualifying tournament, because walking is considered an important part of the sport. Casey Martin, a golfer with a condition impairing his ability to walk, sued the PGA, claiming that it must accommodate his disability by permitting him to ride in a golf cart.
In PGA Tour, Inc. v. Martin, a misguided majority on the U.S. Supreme Court ruled in Martin’s favor, stating that the competitive areas of PGA tournaments (a private organization), are “places of public accommodation.” So Martin was permitted to use his electric cart. Once again, government interfered in private business.
Biathlon is a Winter Olympic sport that combines cross-country skiing and rifle target shooting. The rules of the International Biathlon Union (IBU) state that a participant must both ski and shoot during the course of an event. Suppose you joined the IBU as an athlete, but became disabled and could not fulfill the skiing requirements. Should the government force the IBU, a private group, to let you compete in only the target shooting portions, while using a snowmobile to get around the course? Or what if you excelled at the skiing portion, but objected to the use of firearms? Should the government force the IBU to create a new gun-free event for you and others like you? Why don’t you just go form your own group?
The public can freely comment and complain about any unfairness by any organization. Such public pressure can influence the choices that organizations make, and their degree of success.
The main question is: Should a private group have liberty, or not? In the UTL, it will have liberty.
How can you allow people to appear in public with their faces covered or wearing masks, concealing their identity? Won't that facilitate criminal activity?
As long as the behavior poses no danger to other people, we must not allow the government to dictate what personal attire is acceptable. For example, if someone wears very large sunglasses, wouldn’t that obscure their identity like a mask? Should such large sunglasses be banned? At what size? Those aren’t the kind of decisions we need government for. We must prosecute people for violating other people’s rights, not for their appearance or for the mere possibility that they may be concealing something dangerous under their clothing or in a container.
Note, however, this constitution states that private land owners and their proxies can restrict the attire of guests on their property. And government can restrict attire worn on official government property and at official events on public property.
We would still permit inspecting or excluding the containers of patrons who attend an event or board an airplane, for example. And when a law enforcement officer or other government official needs to compare a person’s appearance against his photo identification document, that person must allow the officer to see his entire face.
Where is the right to privacy? Or the right to be left alone?
Simply stating a “right to privacy” would be vague and unenforceable. However, other provisions already protect many aspects of privacy. Examples: being protected from capture, being free to read and listen to virtually anything, and protection from being photographed or recorded without consent while on private land or in a private setting in a public facility.
Aside from the I.D. update required every 2 to 5 years, remittance of sales tax (if you’re a retail merchant), driver’s licenses (if you drive on public streets), hazmat permits (if you use or transport hazardous materials), and any possible civil suits, the UTL and its local governments are constitutionally mandated to leave law-abiding citizens alone.
What's your reasoning for the right to bear arms?
The rights to life, liberty, and property ownership essentially embody the rights to NOT be physically attacked, captured, or robbed, respectively.
These rights compel the protection of all residents in a community by common defense forces (police, armed services, etc.), even benefiting residents who do not personally contribute to those defenses.
Unlike services such as medical care, which are not rights but must be customized to specific personal needs (sprain, rash, tumor, etc.), the common defense is not personalized. But it's still effective in reducing suffering (from crime, fire, etc.), thereby benefiting everyone simultaneously and equally, regardless of how many of us live in the community.
The right to bear arms is vital for personal defense in the midst of an imperfect common defense. It enables immediate and direct defense of all three major foundational rights: life, liberty, and property ownership.
Personal defense against a criminal attack also benefits the general populace.
What is meant by “weapons designed to kill multiple people simultaneously”?
Examples are bombs and grenades. Just one detonation of such a device poses a devastating threat to the life and property of everyone in the surrounding area. Compare that to a conventional firearm which is normally aimed at one attacker at a time for personal defense. These distinctions are often complex, but must be properly defined and enforced by government to protect the rights of citizens.
Animal rights supporters may disagree with the inclusion of animals as property. What about wild animals that occupy or migrate across a person’s property?
Ownership or capture of wild animals on personal property is a legal detail for individual Territory governments to address.
Note that this is a constitution, not an all-encompassing set of laws, regulations, policies, and punishments. Those details will need to be debated and decided by voters and elected officials, but such details must not conflict with the UTL constitution.
Who decides which explosive materials cannot be possessed as private property?
The specific type and quantity of each material would be a detail to be left up to each Territory government, or Armed Forces officials, to decide. Some hazardous materials should be illegal for an individual to possess in any quantity, but others could be legal in small quantities. The local government would issue official permits for regulated professional and commercial use of explosives for demolition or excavation.
Don’t we all have a right to be served at any business we choose, and to be sold whatever’s in a store?
No, those are not foundational rights. We have already discussed the membership and rules of private organizations (right to assemble), but now we will address the freedom of business owners and proprietors to choose which customers to serve on their property.
Market competition provides many sources for goods and services, so you can go elsewhere if you don’t like the first source you find. The proprietor of a business usually has a financial incentive to serve you, but has no moral or legal obligation to do so, just as you have no obligation to patronize his business. While at his place of business, you are a guest there voluntarily, whom he can serve voluntarily.
For example, he might be saving his last bottle of special ale - his property - for a friend he promised it to, so he tells you it’s not for sale. Or he may consider your comments or attire to be offensive to him or to other customers, and tell you to leave his premises. He can even exclude patrons who openly carry weapons.
In the 1990’s, many U.S. banks charged fees to non-customers who used their automatic teller machines. Lawmakers, seeing a populist opportunity to gain the favor of voters, passed laws against charging such fees. In response, some banks then stopped allowing non-customers to access their machines at all. Should the government have then forced those banks to provide all their services to non-customers, for free?
Suppose you plan to build a 3-story store or professional office, with stairways but without elevators. Rather than letting your business take the financial risk of deterring customers who need elevators, should the government force you to add elevators? The U.S. government does, but the UTL will not.
The government should not force a proprietor, or anyone else, to give away or sell any service or item he owns, except when the government must buy his private property for public use. He shouldn't be required to legally defend his decisions, even if they seem irrational.
The public can freely debate and complain about any perceived unfairness by any organization. Never in history have there been so many forums upon which unlimited numbers of people can promptly record and broadcast their complaints, or their support, in detail. In the UTL, we will let public pressure and market demand, not the force of government regulation, influence the choices that business owners make.
Why can’t “Public Use” include adding or modifying facilities to raise revenue?
This addresses the issue of eminent domain, where the government acquires currently private land for public use, such as a highway. Government can only acquire the land by paying market price to the owner. In the late 20th century United States, some governments overreached, claiming that “public use” included the creation or expansion of facilities such as shopping centers that would increase tax revenue, because tax revenue was for “public use”. This abuse by government will not be permitted in the UTL.
What is meant by “A man-made object found on public land, or on an unrestricted space open to the public”?
A parked vehicle would be one example. This is a civil society where we respect the property of others, even when it’s left unattended in a public place such as a parking lot. We won’t consider the item to be free for the taking. If the item is clearly trash or a safety hazard, or is in a restricted space such as a parking space with a posted time limit, it would then be subject to prompt removal.
If the original owner of the object has not claimed it within 10 days, then it’s finder's keepers. The landowner, whether private or government, then becomes the new owner of the item.
An abandoned pet is not an object, and thus is not covered by these rules. Instead, as is common today, it would be reported to private humane organizations for relocation and care, and could be listed on the lost and found database.
Examples of how some objects would be dispositioned:
Automobile or locked bicycle: none of the three categories applies. It’s an object of value, but it’s secured (keys are required to move it), so it must be left alone for 10 days.
Tent: light enough to be carried away by one person, but if it's staked to the ground, it would require dismantling to move it. So it’s not in any of the three categories, and must be left alone for 10 days.
Tire: if it's worn out, its value is negligible, so it would be in category 1. But if it's in good condition, it's in category 3, and should be moved, stored, and listed on the database.
Loose currency or jewelry: category 3.
Animal trap: category 2. Even if it’s locked to a tree or staked into the ground, it's a safety hazard, so it should be removed and listed.
Knife or gun: categories 2 & 3, so it should be removed and listed.
What's the difference between government property and public property?
Government property is property reserved exclusively for government purposes. Some portions of it may be open to the public at times. Examples are military bases, dams, and government offices.
Public property, also known as a “public place”, is any property that is neither reserved for government use, nor privately owned. Examples include public streets, waterways, and areas that have not yet been sold to any private party. It’s open for everyone to enter and spend time there. Depending on how the property was acquired or transferred, the city, county, Territory, or Common government has ownership and jurisdiction. Government can restrict hours and activities there, such as vehicular traffic, camping, mining, etc.
Private property, such as a business, can be "open to the public", meaning the owner welcomes people to use his premises subject to the owner’s rules, because it’s his place, not a public place.
How can a person claim personal ownership of a national flag? Isn’t the flag actually community property, jointly owned by all the citizens, and damaging it is a crime against the nation?
Nobody owns “the” flag. But everyone can buy or make a copy of it. You are the owner of your copy of the flag, or other symbols, or books such as the Bible for example. You can legally treat your copy any way you want; just don’t violate anyone else’s rights in the process. Notice this constitution doesn’t include any “right” against seeing someone mistreat his own property. Your outrage at such an act is legal, but that doesn’t permit you to physically attack anybody or otherwise violate their rights. You will always be free to peacefully express an opposing viewpoint.
What if the property they are mistreating happens to be an animal they own?
That’s another issue which would be covered by local anti-cruelty laws, not in this constitution.
Section 1.2. Rights of the Accused
How can you convict a person for a crime if he was not sane at the time it was committed?
Whoever committed the crime is guilty, regardless of their state of mind at the time. There could still be flexibility in sentencing.
What is “Writ of Habeas Corpus”?
Another phrase from the U.S. Constitution. A writ of habeas corpus is a civil proceeding in which a court inquires as to the legitimacy of a prisoner's custody. It directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release.
The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.
What is a bill of attainder? What’s an ex post facto law?
These are more clauses from the U.S. Constitution. A bill of attainder is an act of the legislature that declares specific persons or groups, named in the law itself, guilty without a trial, and prescribes punishment. This is a violation of human rights; only a court can rightfully hold a trial, evaluate the evidence, determine the merits of the charge, and prescribe punishment.
Ex post facto means “after the fact”. An ex post facto law is an attempt to retroactively punish past conduct which, when it occurred, was not illegal. Obviously, it would be fundamentally unjust to prosecute people for having performed a legal activity before it was ever outlawed.
In civil lawsuits, why should the court admit evidence that the plaintiff has received compensation aside from the damages sought against the defendant?
This removes the collateral source doctrine, an American rule prohibiting the admission of evidence that the plaintiff received compensation besides the damages sought against the defendant. In order to make a fair decision, judges and juries should be informed about the amount of compensation that a plaintiff has already received.
Where do you get your “25 percent of the difference” rule limiting lawsuit fee awards?
This is part of tort reform, to incentivize both parties to negotiate reasonably, to prevent an exorbitant burden upon the non-prevailing party, and to limit the court time that lawsuits occupy.