9 Bill of Rights
The purpose of section 9.1 is to make the Bill of Rights expressly binding on all confederate institutions, and to provide a safety net for state legislation. If state law is silent, confederate law and the confederate bill of rights will extend to state institutions and within state jurisdictions.
On the other hand, states that want to modify the Bill of Rights to local circumstances are free to do so, cfr. section 1.4 Superior law.
Section 9.2 prevents discrimination on the basis of nationality or ethnic origin, political or religious beliefs, race, color or sex.
9.3 Voting age
Section 9.3 extends the right to vote to all citizens older than eighteen years.
9.4 Ex post facto law
Section 9.4 prohibits the use of ex post facto laws.
9.5 Religious freedom
Section 9.5 ensures the peaceful enjoyment of religious activities.
9.6 Freedom of speech
Likewise, it has been expanded to provide for the protection of media ownership, production and distribution. This is to prevent factual censorship by for instance, the well-tried methods of limiting newsprint supplies or refusing distribution; both methods popular with authoritarian regimes.
Similar protection has been provided for the newer medias.
9.6.1 Transferability of access rights
Section 9.6.1 also provides for the unrestricted ownership of and transferability of access rights such as for instance, electromagnetic frequency rights.
Distribution in the newer media is qualitatively different from the older media like the press. There is no physical limit on the number of printing presses, and the fact that The Observer owns a printing press, does not prevent The Financial Times from owning a press too. However, radio and television broadcasting is different. If BBC uses a particular frequency, that prevents Sky Channel from using the same frequency without garbling up the messages of both channels.
There is a limited number of broadcasting bands available. The number may change over time due to technical refinements in broadcasting technology, but it can never become infinite. In fact, as technology advances it looks as if the relative availability of frequency bands decreases. Not only is the demand rapidly increasing from independent broadcasters, but at the same time, modern two-way communication (radio, mobile telephones, pagers, satellites, etc. etc.) technology is also expanding rapidly into the same limited frequency range.
Thus frequency rights have to be allocated among several contenders. This allocation has traditionally been used as an excuse for government to regulate the contents of what is being transmitted. In effect the limited availability of frequencies has been used as an excuse for censoring the media itself.
To get around this problem two remedies are proposed:
a) Access rights are separated from freedom of speech, or the right to start new media. (Thus anyone may start a television channel, just like anyone may start a newspaper.), and
b) Access rights are made freely transferable. Just like printing presses, once the access right has been created, whether by government involvement as for electromagnetic frequency rights, or not, as for distribution rights in a cable network, it can be freely bought and sold. In effect, instead of being dependent on governmental privilege, access rights have become property like any other property.
This section does not by itself compel the government to sell off access rights. Provided the Confederation possesses all rights initially it could take over all broadcasting itself and create a confederate monopoly. However, such a monopoly would be unlawful according to the Bill of Rights. Thus in effect, the Confederation may not conspire to restrict the freedom of the media. (Though each state would, in a limited fashion, be able to do so within its borders.)
9.7 Right of assembly and association
Section 9.7 protects the right of assembly and association.
9.8 Habeas corpus
Section 9.8 corresponds to U.S. 1.9.2. However, while the U.S. clause provides for the suspension of Habeas Corpus in times of rebellion or invasion, the proposed clause does not. In those rare cases where a suspension is actually justified, i.e. in the actual theatre of war or during a complete break-down of civil authority, the suspension will come about automatically, as the courts will be unable to sit, and hence will be unable to issue the writ. Thus there is no reason for a constitutional loop-hole and it may be potentially dangerous to provide a mechanism whereby other authorities than the courts themselves determine either whether detention is justified or whether the danger to public safety requires the general suspension of Habeas Corpus.
During the Second World War tens of thousands of U.S. citizens of Japanese origin were detained without conviction or indeed without even being accused of a crime. Only recently has the U.S. government taken steps to remedy this gross injustice through monetary compensation to the estimated remaining approximately 67.000 victims. The legal basis for this suspension of basic rights was the risk to public safety cited in U.S. 1.9.2.
9.9 Privacy, searches, seizures, and interceptions
A) It starts off by a positive declaration of what is to be protected, the privacy of the individual, and thereby facilitates a broader interpretation of the rest of the section (for instance to take account of advances in technology).
B) The concept of searches and seizures is expanded to include interception (for instance wire tapping).
C) The section is expanded to include information and communications.
D) The section is expanded to include private parties to take account of increasingly sophisticated electronic and other gadgetry available to private parties and organizations. Typical private parties are neighbors, news organizations and employers.
E) The section is expanded to become independent of where the seizure takes place. The actual interception of phone calls, for instance, will normally take place outside of your home.
It is impossible for the public to evaluate whether there is probable cause in each instance. But by requiring the Confederation to publish statistics, and by giving those wrongfully subjected to searches compensation, a process is introduced that discourages non-legitimate searches.
9.10 Due process
9.11 Criminal prosecutions
Section 9.11 protects individuals in criminal prosecutions. It is a combination of parts from U.S. Bill of Rights safeguards and Supreme Court decisions (Miranda warnings).
Section 9.11 clarifies what is meant by due process of law in criminal cases.
Section 9.12 protects the people's right to trial by jury.
9.13 Excessive bail
Section 9.13 protects the people against excessive bail, excessive damages and cruel and unusual punishments.
9.14 Taking of property
Section 9.14 protects individuals against arbitrary confiscation. Compared with the U.S. and most other taking clauses the proposed section has been expanded to give full compensation and to include regulations.
9.14.1 Full or just compensation
The difference between full and just compensation is that full compensation will always be just, while just compensation may not always be full. What is meant by this? Full compensation may come in many forms. Generally speaking it is always the larger figure of several possible combinations either of which could conceivably be termed just compensation. Possible basis for just compensation:
a) Original cost. If a section of real estate had an original cost of € 100.000, just compensation may be set at € 100.000.
b) Inflation adjusted cost. Compensation may be set at original cost adjusted for inflation.
c) Book-value. If the property to be taken over is owned by a business entity, compensation may be based on book-value. Book-value in most cases will consist of original cost less depreciation, but depending on accounting rules and regulations it may also, for instance, be inflation adjusted.
d) Net present value. This is the discounted value of the income stream from the property. It may easily differ substantially from the other values above.
e) Replacement value. This is what it would cost the business or individual to replace the property taken.
f) Market value. This is what other people would pay for the property in question, or it might be the value of corresponding neighboring properties that are not expropriated. (There is an additional question related to the effects of the expropriation itself.)
g) Community value. This is the value to the government or entity expropriating. If the property is used for new infrastructure projects like roads or power plants, the value to the community and its inhabitants may be quite large.
h) Sentimental value. This is the subjective value of the property to the owner. In some cases the sentimental value may be very high. A childhood home, for instance, may have a sentimental value to the owner far exceeding its market value. Alone among the modes of evaluation described, this is based on subjective concepts, and therefore particularly hard to assess or easy to manipulate, depending on your views. If sentimental value where to be taken fully into account, the right of eminent domain would essentially cease to exist, as no objective proof is possible, and the value may consequently be set arbitrarily high. Only two possible modes of alleviating exists; either sentimental value has to be disregarded altogether (and problems in this respect minimized through less frequent use of eminent domain), or it has to be set not on an individual basis, but on a collective basis. It might be possible for instance, to determine (crudely) how much, on the average, it means to owners of private homes to live in the home where they grew up. (One possible entry point for research in this area, may be the average premium that heirs are willing to pay the estate to take over the homes.)
In addition to the evaluation modes described above; compensation has to take into account any effects of the expropriation itself. If a piece of real estate is taken to build a road for instance. Is the value of the property to be evaluated as if the road existed, or not ? This is just to show that the proposed clause does not solve all problems. Legislation or common law is still required to fill in the blanks.
Regulations are probably more important economically than the taking of property itself. In most countries, the author does not know of any exceptions, government may impose restrictions without paying compensation. Since this mode is "free" (at least to government), zoning and other regulations have proliferated. The proposed remedy has two objectives:
a) Provide compensation to property owners according to the losses suffered by regulations, and
b) Providing a cost figure to governments, so that there is a basis for a trade-off between costs and benefits regarding regulations. The potential savings to society at large by having an intelligent trade-off between the costs and benefits of governmental regulation may easily run into tens of billions of €s for the EC, and possibly into hundreds of billions of €s. These are savings on the same order of magnitude as the savings envisioned by the single market.
Here too, the proposal relies on a just process rather than an absolute rule. Instead of declaring un-necessary regulations unlawful, a mechanism is created whereby government may regulate as much as it wishes; as long as it pays for it.
The issue is also depoliticized. Instead of haggling over whether a regulation is necessary or not, we can leave it to the accountants, economists and legal system to figure out the cost, and then decide whether we believe the costs outweigh the benefits or vice versa. Compensation can be paid out either through the court system, or which is probably cheaper administratively in most cases, through automatic compensation plans relying on legislation. The depoliticized approach has the added benefit that it may be continually refined as more information becomes available.
Forcing government and politicians to include all costs has important positive consequences for safety regulations.
Let us take the licensing of medicines as an example. Regulations requiring extensive testing of medicines before marketing have three essential cost components: a) the cost of the testing itself, b) the cost to the manufacturer related to the fact that potential revenues from selling the medication is delayed, and c) the cost to patients in terms of money and suffering, perhaps even death, while they await the release of the medication. It should be pointed out that c) is related to b). Even though this may seem callous to some readers the amount of revenue the manufacturer can expect is related to the suffering that is alleviated. Manufacturers of medicine can expect to recoup their costs and earn a profit only if they sell expensive medicines to a relatively small number of patients suffering from a very serious disease (AIDS for instance), or if they sell relatively inexpensive medicines relieving a large number of patients of minor suffering (e.g. cough medicine). Thus the suffering of the patients while they await release is in fact translated into a revenue loss for the manufacturer. On the other side of the ledger, we find that extensive testing also has benefits. From the point of view of the manufacturer it protects him against the economic consequences, in terms of compensation to victims, of releasing a medicine with serious defects. From the patients' point of view it reduces the likelihood of injuries and suffering from the un-anticipated medical effects. This latter cost is again included in the manufacturer's cost, as he will have to compensate victims of unanticipated effects.
It is important to note that the pharmaceutical company will only be able to claim compensation if the net costs associated with complying with regulations exceed the company's net benefits. In many instances, perhaps most, this will not be the case, and regulations can be retained as they are. Compensation related to safety regulations will only be possible when requirements go beyond what is sensible. For instance, many countries do not distinguish between medication for fatal and non-fatal diseases. Medication for AIDS have to go through the same lengthy test procedure as cough medicine. This does not make sense. If you are already dead, it is of no use that the medication you could have taken to stay alive is "safe". In this case the pharmaceutical company's potential liability for unanticipated effects is very small as its potential customers would have died anyway. The potential revenues on the other hand, may be significant as people are willing to pay quite a lot for staying alive. The net loss to the pharmaceutical company due to regulation is large. Through the courts the pharmaceutical company will be able to claim a significant compensation. This will show up as a significant expense in the confederate budget, and will encourage the politicians to re-examine the regulations with a view to greater differentiation. Thus rather than giving a colder and less humane society, inclusion of regulatory costs will encourage politicians and governmental organizations to act more humanely.
Breaking up or regulating cartels and monopolistic organizations
There is considerable disagreement among knowledgeable people whether it is in fact possible for a country to regulate itself free from the negative economic effects of cartels and monopolies. Experience from several countries suggests that the effect of regulations in many instances may end up in being just the opposite of what was intended: Instead of increased competition we may get additional regulatory barriers to entry, and instead of competitive behavior, we may get government sponsored collusion. A typical example of the latter kind can be found in the American regulations related to "fair" (whatever that means) foreign competition. In the name of fair competition American authorities have sponsored "voluntary" restraining agreements among Japanese manufacturers of automobiles and semiconductors. In effect the American government is condoning a cartel of Japanese manufacturers in order to reduce competition in the American market and raise prices.
Nevertheless, given that we are to have anti-trust regulation (which in theory is different from trade regulations), it can only be justified to the extent that it returns monopolistic profits to customers. This puts the injured party (the customer) in the position he would have been in if the monopoly or cartel didn't exist. The result of monopolistic coercion is counteracted by governmental coercion and this is its justification. The monopolist is forced to repay a gain he has come by not necessarily through a fault of himself, but through an unfair process. It is like finding a suitcase of money on the subway. Even though you didn't come by this money illegally, you are obliged to return them to their rightful owner. Neither the government nor the customer can demand anything more from a monopolist that has reached his position honestly by out-competing his rivals. As far as economic efficiency is concerned, it is sufficient for monopolistic profits to be returned to customers. Any regulation that goes beyond this without providing compensation is neither justifiable on grounds of equity nor on economic efficiency grounds. The second subsection encourages the courts to constantly monitor anti-trust and anti-cartel legislation to make sure that it in fact does no more than what it is supposed to do and that is justifiable on the grounds of economic efficiency and equity.
It is not always possible to find practical ways of counteracting the effects of monopolies and near-monopolies, and in many instances the costs involved may not be worth the effort. The government may compel you to try to find the owner of a suitcase full of money or at least deposit the money at the nearest police station, but it hardly seems worthwhile to compel citizens to spend the same amount of effort on a dime (10 cent piece) found on the streets of New York or a 10p piece found on the streets of London. Thus it is sufficient for the Constitution to give the Confederation the option of regulating these issues. It should not compel regulation.
9.15 Speedy decisions
The purpose of section 9.15 is to prevent the government from achieving through stalling what could not be achieved otherwise, and to provide an incentive for government to act by putting a price on wasting citizen's time.
9.15.1 The cost to individuals of government stalling
More and more, the everyday life of ordinary people have come to be dependent on government permits and decisions. In most cases this is not a matter of life and death, but a government permit may make the difference between prosperity and bankruptcy. Often in those cases where the government does not have the proper authority to refuse a permit, but desires to do so, it may achieve the same objective simply by stalling. In general though, it is not a question of malice, but simply a lack of governmental resources, or a lack of weighing the supposed advantages to society at large of a thorough investigation against the interests of the individual seeking the permit.
The need for rules to prevent government stalling has to do with the government's monopoly position. Any business refusing to serve its customers within reasonable time, would simply go out of business, as people would go elsewhere. This option is not available in the case of the confederate government. Thus an independent mechanism has to be provided to protect the individual.
9.16 Equal protection
The purpose of this section 9.16 is to ensure that all citizens, including confederate officials, are equal before the law and enjoy the equal protection of the laws.
As some governmental functions by nature, require immunity, the real function of this section with respect to government officials consists of transferring the evaluation of what constitutes "necessary" privileges and immunities from the officials themselves to the judicial system. The advantages associated with this approach has to do with the relative dangers to equality and individual liberty associated with the various branches of government. Because courts are reactive rather than active (they only decide issues brought before them) they pose less of a threat to the public than either the executive or the legislative.
Examples of privileges gone wrong
Members of the legislature as the new privileged class
The original function of Parliamentarian privileges was to protect the Parliamentarians against a powerful non-elected executive. Typically, MPs had complete freedom of speech, i.e. not even subject to libel, freedom from arrest during sessions etc. etc. However, as the need for such privileges has diminished, they have nevertheless at least in some instances, been strengthened.
In Sweden, Parliament has recently enacted an insider trading statute, but Members of Parliament are exempted. (Source: "Innsidelov ikke for Riksdagen", Dagens Næringsliv, Oslo, September 22, 1990). It is hard to see how this exemption can be justified by the need for protecting the democratic process.
In Norway, Parliament enacted an anti-smoking statute, only to try to have itself exempted. Similarly it is quite common for MPs to have special tax privileges. Also in Norway, despite the fact that MPs rarely pay for anything when travelling, their tax-free travel allowances are double everybody else's allowances. These exceptions to the laws governing society are not each one of them important, but taken together they show a disdain among politicians for the people that elected them.
More directly important may be the concept of sovereign immunity found in varying degrees in many countries. In the United Kingdom for instance, the executive government (the Crown) may not be sued. On the continent there is an extensive body of administrative law that in many cases protect the government itself or government officials.
The U.S. Atomic Energy Commission
In the United States the Atomic Energy Commission in the 1950s operated uranium mines in Colorado and other western states of the U.S. In spite of warnings from the U.S. Public Health Service advocating better ventilation to prevent decaying radon gas from attaching itself to dust particles that the miners breathed into their lungs, the AEC failed to act because it was afraid of alerting the miners to the dangers associated with uranium mining. Eventually many miners developed lung cancer, but when they sued, the court ruled that the government was protected by sovereign immunity. (Source: "These people were used as guinea pigs", International Business Week, October 22, 1990, page 64 B-E and 64 C-E).
The private equivalent, the Manville asbestos case
It is instructive to compare the AEC case with the asbestos cases in the U.S.. Manville Co., the world's largest manufacturer of asbestos, was eventually forced to pay compensation to asbestos victims even though it wasn't known at the time of the sale of the asbestos that this material poised a health risk. The AEC got off without any liability even though it deliberately avoided taking protective measures.
The objective of this section 9.17 is to ensure that the confederate government does not achieve through a monopolistic arrangement what it cannot achieve through legislation. Governmental monopolies may for instance be an alternative method for raising revenues. In this respect it may act as a substitute for taxes. Similarly, monopolies may be used to introduce or maintain regulations that would otherwise have been illegal. This section makes it harder for the Confederation to exempt itself from competitive pressures.
The second subsection protects patents, copyrights etc..
9.18 Rights retained by the people
The purpose of this section 9.18 is to provide the courts with a means of enforcing rights that are generally accepted, but have been omitted from the Constitution either by accident or by design. The U.S. constitution for instance, has clauses relating to slavery and involuntary servitude. The concept of slavery, however, is so foreign to current thinking that putting it in would be to give it more attention than it deserves.
Copyright © 1991-2003 John F. Knutsen
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