Friday, June 12, 2020

The Virginia Declaration of Rights

I decided to post my post about the anniversary of the Virginia Convention's adoption of the Virginia Declaration of Rights (on June 12, 1776) on time, this year ... unlike what I have done once or twice in years past.

Many sources on the Virginia Declaration of Rights state (correctly) that it became a major influence on the United States "Bill of Rights" (which took effect a little over fifteen years later) and that it also influenced Thomas Jefferson in drafting the Declaration of Independence.  (If I remember correctly, Thomas Jefferson later disputed this, indicating that the most prominent similarities between the two documents resulted from both documents being influenced by the same thing -- their respective authors were articulating ideas that had already grown popular in America and had already been expressed by various people in various ways.  I am inclined to believe Jefferson, particularly considering that the Virginia Declaration of Rights was adopted only about two and a half weeks before the Declaration of Independence had finished being debated, edited, and finally adopted by Congress.  If Jefferson saw the Virginia Declaration of Rights before July 4th, it seems unlikely to me that it would have reached him in time to significantly influence his drafting of the Declaration.  Of course, I could be wrong.)

I appreciate the Virginia Declaration of Rights as one of many, though one of the most well-known, documents recording the beliefs, convictions, motives, and aims of the active members of the Founding Generations -- their cause as they understood it.  Anyone who does not understand quite what kinds of things I had in mind when I referred to the "republican form of government" in some of my posts from over the past couple of months ought to read the Virginia Declaration of Rights.  It articulates well most of the key precepts that define that type of government, and it identifies the principal rules by which such a government is itself governed.

If you want to form a deeper and more complete understanding of the "republican form of government", do not end your inquiry the moment you have finished reading the Virginia Declaration of Rights.  (If you need help figuring out what to read next, I can help.)  However, if you just want to become familiar with a few of the most significant ideas that define it, reading the Virginia Declaration of Rights would be an excellent way to start.  (Also, do not neglect the Declaration of Independence.  If you read no other part of it, at least read the second, third, and fourth sentences of it, and remember them well.)

To ensure that the inconvenience of searching for the text of the Virginia Declaration of Rights does not prevent anyone from finding and reading it, I have placed its text immediately below this sentence.

The Virginia Declaration of Rights

[Adopted by the Virginia Convention on June 12, 1776.]

A Declaration of Rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them, and their posterity, as the basis and foundation of government.

First, That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

2d.  That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

3d.  That government is, or ought to be instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

4th.  That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary.

5th.  That the legislative and executive powers of the state should be separate and distinct from the judicicative; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

6th.  That elections of members to serve as representatives of the people, in Assembly, ought to be free, and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good.

7th.  That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

8th.  That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land, or the judgment of his peers.

9th.  That excessive bail ought not to be required, nor excessive fines imposed, nor cruel & unusual punishments inflicted.

10th.  That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

11th.  That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

12th.  That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

13th.  That a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

14th.  That the people have a right to uniform government; and, therefore, that no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.

15th.  That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

16th.  That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.

Wednesday, June 10, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 2

I may have inadvertently buried the lede in yesterday's post about curfews.  At its end, I explained that while throughout the post, I had discussed curfews as intruding on the freedom to travel over or remain on public property, the curfew orders that I have seen (all of them from Indiana; I apologize, but I would need a good reason to do it before I would devote the time that it would take to track down and read the instruments used in establishing curfews in cities located throughout the United States) state that the curfews that they respectively declared were to extend to private property.

Just to make certain that I do not bury the lede again, I will state right here: All of the curfew orders issued by Indianapolis Mayor Joe Hogsett affected to make it a Class B misdemeanor, punishable by up to 180 days in jail, for people in Indianapolis even to have been in their own driveways during any of the curfews.  (Carmel Mayor Jim Brainard's near-copy of those orders did the same thing, but he only imposed a curfew for one night, and it isn't clear to me that anyone in Carmel was aware that there had been a curfew until it was over.)

Most of the curfew orders that I have seen are nearly identical in the wording of their substantive parts, so it would serve no purpose to link to and discuss a large number of them.  (In Indianapolis, the mayor issued separate orders to declare curfews for different nights, but each of his orders is so similar to the others that there is no reason to cover more than one of them.)  Indianapolis Mayor Joe Hogsett's June 5th order, which declared curfews last Friday and Saturday night (running overnight, as curfews tend to do), reads (beginning at section 2(b)), "During the Curfew, no person may travel public streets or be in public places in Marion County unless exempt under Section 2(c)."*  Section 2(b)(ii), however, defines "public streets" and "public places" in a peculiar way: "For purposes of this order, 'public streets' and 'public places' means any place, whether on privately or publicly owned property, accessible to the general public.  This includes, but is not limited to, streets and roads, alleys, highways, driveways, sidewalks, parks, plazas, parking lots, and vacant lots."

I have been exploring the bizarre and dangerous characteristics and effects of IC 10-14-3 (which, coincidentally, is what Indiana mayors have claimed over these past two weeks gives them authority to impose curfews) for months, but even I was surprised to discover that Indianapolis Mayor Joe Hogsett had invoked it in order to impose curfews throughout Marion County which treats private property as a public place (and consequently off-limits to everyone while a curfew is in effect), so long as it is a "place" (which it is bound to be) that is "accessible to the general public."  That could include a lot of places!  A place is "accessible to the general public" if the general public is able to access it.  There are many "places" on private property where the owner of the property would not want the general public to go but which nevertheless remain "accessible to the general public".  Hogsett's order provides a list of examples (but not an exclusive list) of what he understands to qualify as "public streets" and "public places".  This list, which appears at the end of the previous paragraph, explicitly identifies "driveways" as "public places", where people were forbidden to be for the duration of each of the curfews that Hogsett declared.  Hogsett's curfew orders, which include no exception that would have allowed people to be on their own property during the curfews (even when Hogsett considered their private property to qualify as "public places"), cannot be understood other than as having forbidden people to be in their own driveways during any of the curfews that he declared.

Carmel Mayor Jim Brainard issued a very similar curfew order on June 2nd.  He presumably issued it as a part of a larger plan to cause people to take him less seriously.  His order differs from those issued by Hogsett in that its definition of "public streets" and "public places" requires that a place on private property be both accessible to and open to the general public, which I suspect was intended to prevent his curfew from being as absurdly severe and desperate as the curfews of Hogsett.  (If it was, then I appreciate the effort.)  In practice, I question how much of a difference adding "open" to "accessible" would make, but again, also in practice, I doubt that anyone in Carmel realized or cared that Brainard had declared a curfew.  (It followed his declaration of a "Disaster Emergency" the day before, which seems to have been precipitated by someone's discovery that people had posted hostile comments on social media.)

* Marion County and the City of Indianapolis have, for the most part, a single, unified government, so extending the curfew throughout Marion County extends it throughout the entirety of Indianapolis.

Tuesday, June 9, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 1

A government-imposed curfew -- especially an executive-imposed government curfew -- should always be met with suspicion and vigilance, and whatever may be offered as the justification for it ought to be received with the greatest skepticism.  If a curfew must ever be tolerated, it should be required to satisfy the highest standards of necessity, legality, and justice.  By its nature, a curfew, when and where it is in effect, confines every person subject to it within narrow bounds, in defiance and in violation of the fundamental right of freedom of movement.

To allow people to move about freely (and to do so without having to trespass on the property of one person after another) is the very purpose of public roads and sidewalks.  We are all familiar with measures that sometimes interfere with this use of the roads (such as road or lane closures, usually to facilitate road construction or repairs or to allow for the removal of an obstruction) or sidewalks, but none of these deprive people altogether of the ability to move freely over the roads and sidewalks.  They certainly are not meant to deprive people of freedom of movement; the opposite is usually closer to the truth.

In contrast, the very purpose of a curfew is to deprive certain people -- or to deprive all people in the area, depending on the curfew in question -- of the ability to use roads, sidewalks, and any comparable public* property in exercising their rightful freedom of movement.  However harmlessly and peaceably a person might conduct him- or herself in doing this, and notwithstanding that the right to travel over the same streets and sidewalks would at all other times be as undisputed as it would be indisputable, the effect of the curfew (for the curfew's duration) is to expose the person to the threat of arrest and prosecution for a fundamentally innocent act.

Of course, I acknowledge that when a curfew is established, either legislatively or by invoking an executive power (one which some people presumably would insist has something to do with the law), those responsible intend to serve some purpose by establishing it.  I am under no misapprehension that people who put curfews into place do so without desiring that anything result from it.  When people act, I expect them to have some kind of motive; what would surprise me would be if I were to learn that they had acted without having any kind of motive whatsoever.  As a result, when a legislature or a governor (or a mayor, when no more formidable an executive is available) establishes a curfew and thereby makes utterly innocent conduct punishable as a crime, the knowledge that the person or persons who put the curfew into place had a motive will not, on its own, cause me to approve of that action than it would cause me to approve of every other action that every person has ever taken or ever will take.  Instead, I would need to consider the action itself, decide whether the motive is in its nature even capable of justifying the action, and then decide whether the motive does justify the action, which may depend on whether the motive rests on a sufficiently sound factual basis or whether it is little more than an impulse accompanied by an explanation for it constructed after the fact (something that suddenly flashed within the mind of a coward, for example, which motivated him to act).

I have many points to make, and that need to be made, about curfews -- in addition to important points that do not directly relate to curfews, which you will be able to find here once I have written about them -- but I have chosen to begin with these remarks on the odium of curfews in general.  The curfew is only one of the many weapons that executive officers of government throughout the United States have grown much too comfortable during 2020 (especially during 2020) using against the people whose rights it is their obligation to defend.  When I focus on specific points relating to curfews, however, I will want to have already made this point clear: When a curfew faces criticism, no one should ever give the benefit of the doubt to the curfew.

* I have not seen the curfew orders issued by cities in states other than Indiana, but the curfew orders that I have read that have been issued by Indiana cities claim to apply to private property in addition to public property, if that private property is "accessible to" the general public.  The orders have specifically identified "driveways" as places where people were forbidden to go.