hts is not enough Austin Until questions of separation of powers, executive privilege and impeachment began to take up most of the constitutional arguing space around, one most often thought of “the Constitution” as the document which contains the Bill of Rights, including its nineteenth-century adjunct, the Fourteenth Amendment. And the Bill of Rights itself was most often thought of as an exemplary set of protections for the citizen, one not in need of revision or adjustment, but only of reading by reasonable people. Definitions of reason, as they usually do, differed widely. The Texas Constitution also contains a Bill of Rights, one that reads more like a bill of particulars than does the federal version. As Clifton McClesky said \(in The of Article I of the state document, it is “several times longer than the Bill of Rights in the national constitution, although few would argue seriously that the much more detailed state provisions thereby ensure better protection for individual liberty.” NOW THE STATE is engaged in the process of revising its constitution. The mandate to do so, approved by referendum in November of 1972, contains the proviso that the present Bill of Rights “shall be retained in full.” Voters thus concurred in the admirable sentiment that no rights presently guaranteed them should be subject to cancellation by the 37 members of the Constitutional Revision Commission or by the 181 members of the Legislature. But many civil libertarians will argue before the Legislature in constitutional convention assembled that the fiat of November, 1972, does not prohibit the addition of guarantees. The Civil Liberties Union is even now gearing up for such an argument. Some may shudder at the thought of the “supplements” to the Bill of Rights that could be drafted to subtract rights. Ideally, one would resurrect the Founding Fathers and entrust them with evaluating any suggested changes. Even lacking the wisdom of Jefferson, though, one may begin to think of safeguards that should be part of a new fundamental charter. If we must retain the details and specificities of the old Bill of Rights, let us add to them details 1973 makes necessary. The decision to accept or reject will ultimately be the people’s, but the proposals should be the people’s as well. I have been thinking, fragmentally and incompletely, and I would offer several beginnings. The right of privacy is one that is recognized in common law \(most notably, Notions I I recently, in the U.S. Supreme Court’s Bills of Rights only by inference. The convention should consider including some explicit statement of it, such as, “The right of privacy for all persons being an essential part of freedom, the state shall not infringe upon it unless compelling cause be shown.” Clearly, constitutional language cannot prevent every specific invasion by government, but it can at least provide a standard against which such pernicious jackassery as the sodomy statute may be measured. INSEPARABLE FROM such a guarantee is some protection of the privacy of communication. The present Bill of searches and seizures. Those restrictions should be explicitly extended to the electronic seizure of conversations by adding such language as “Neither the state nor private persons shall intercept any conversation by means of any electronic or mechanical device without the informed consent of the parties to the conversation. Evidence obtained in violation of this section shall not be received or used for any purpose in any proceeding.” The 63rd session of the Legislature passed two bills designed to open the processes of government to the public, the open meetings and open records laws. There is some concern among civil libertarians that the constitution contain fundamental backing for these two statutory efforts, some assurance that they will not be weakened or thrown out by future sessions. It would perhaps be introducing unnecessary statutory material to include in the Bill of Rights some statement to the effect that “The Legislature shall not deprive any person of the right to examine the documents of, or to observe the deliverations of, any public bodies or agencies of the state and its subdivisions, unless the demands of individual privacy or purity of contract and litigation clearly outweigh those of the fullest public knowledge. Nor shall the state, its agencies or its subdivisions unreasonably hinder any person’s right to informed participation in the processes of government.” But the convention should not be let off without considering the possibility. Section 10 of the present Bill of Rights contains the requirement that “no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.” Such a guarantee is part of the original conception of the grand jury as a shield for the accused as well as an instrument of the law. We have seen the grand jury used, in recent years, as a political and punitive tool. It seems the only shield remaining is the secrecy of accusations which are not confirmed in indictment, and the free hand given prosecutors to make their cases practically unopposed cuts away from even that safeguard. The grand jury system may need wholesale revision; at least, the convention should consider the addition of a provision such as “and no person shall be indicted by grand jury unless he or she has had the opportunity, with advice of counsel, to confront the witnesses against him or her and to cross-examine them before the grand jury.” These are, as I have said, unfinished and perhaps unwise ideas for revising the Bill of Rights. They most likely will fail to shake the convention to its foundations. But it is necessary for serious people to think seriously about the possibilities of adding to the enumeration of constitutional guarantees. The 37 commissioners felt they were forbidden to alter Article I. The people should consider whether they and their elected representatives are similarly bound. J.F. November 2, 19 73 29 IDA PRESS 901 W 24th St Austin Multi copy service. Call 477-3641 MARTIN ELFANT SUN LIFE OF CANADA LIFE HEALTH DENTAL 600 JEFFERSON SUITE 430 HOUSTON, TEXAS 224-0686
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