the very substance of individual rights to life, liberty, and property
In Hurtado v. California, 110 U. S. 516 (1884) the Court pointed out that, in England, Magna Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function.
"It necessarily happened, therefore, that, as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property."
Id. at 110 U. S. 532.
In more recent times the issue was forcefully stated by MR. JUSTICE BLACK in Chambers v. Florida, 309 U. S. 227, 309 U. S. 236-237:
"Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scapegoats of the weak, or of helpless political, religious, or racial minorities and those who differed,
Page 402 U. S. 245
who would not conform and who resisted tyranny. . . . [A] liberty loving people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already by 'the law of the land' forbidden when done. But even more was needed. From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed." McGautha v. California, 402 U.S. 239, 244-5 (1971) Justice Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting in No. 204.
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