- In Herbertson v. Russell, 371 P. 2d 422 (Colo. 1962), Justice Frantz in his specially concurring opinion brought forward the following facts respecting theMessage 1 of 1 , Aug 29, 2012View Source
In Herbertson v. Russell, 371 P. 2d 422 (Colo. 1962), Justice Frantz in his specially concurring opinion brought forward the following facts respecting the Enabling Act of Colorado and the Declaration of Independence (Emphasis mine; irrelevant portions deleted in the interest of brevity):
“Colorado was directed by Section 4 of the Enabling Act to adopt a constitution "republican in form * * * and not * * * repugnant to the constitution of the United States and the principles of the declaration of independence." The Declaration of Independence resorted to absolutes; language was used which could only be construed as viewing the utterances therein contained as being timeless and as stating eternal verities. How else can we evaluate the words that men "are endowed by their Creator with certain unalienable Rights, that among these rights are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men * * *."
“Obedient to the mandate of the Enabling Act, the constitutional convention framed our Constitution, submitted it to the people of the proposed State of Colorado, and the people adopted it. Article II thereof declared the rights of the individual citizen and is designated the Bill of Rights.
“The Bill of Rights in applicable part provides:
"In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:
* * * * * *
"Section 3. Inalienable rights.—All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.
* * * * * *
"Section 6. Equality of justice.—Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.
* * * * * *
"Section 25. Due process of law.—No person shall be deprived of life, liberty or property, without due process of law."
“Beyond contention, the quoted portions of the Constitution proclaim the right of a person to his life and the duty of another person not to destroy that life through intentional or negligent act. When the Declaration of Independence said that a man had certain unalienable rights and that among these are life, liberty and the pursuit of happiness, the word "among" definitely indicated that there are other "unalienable rights" besides those mentioned. Our Constitution, seeking to precisely follow the mandate of the Enabling Act, said that "[a]ll persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives," etc. The word "among" in both contexts has significance. Among these rights not enumerated are those relating to the family and its members. Of these much more will be said later.
“No state shall "deprive any person of life, liberty or property, without due process * * *." 14th Amendment, Federal Constitution. The right to the enjoyment of life is a fundamental or natural right not derived from or created by the Federal Constitution; the 14th Amendment only safeguards this right from subversion by state action. Screws v. United States, 325 429*429 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330. For this court to deny a right of redress through some effective procedure where a life has been taken as the result of a wrong would be action in violation of the federal mandate. See Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342.
“The constitutional assurances that a person has a natural, essential and inalienable right to enjoy his life and that it may not be taken away without due process of law can mean little if, through the wrongful act of another, he loses his life, * * * These fine words—that one has a natural, essential and inalienable right to enjoy his life—judicially placed in such a context, become empty words; they are "full of sound * * *, signifying nothing.
“The Enabling Act wanted these words to be vital, to have life and utmost meaning. * * * Contrary to the letter and the spirit of constitutional language, this court rendered lifeless and dead these constitutional rights. Constitutions are not abstractions, and it was never intended that we equate these fundamental and sacred rights with concepts which in reality mean nothing.
“When the people of this state proclaimed that this right to life was natural, essential and inalienable, neither legislature nor court had the power to drain these words of all meaning. * * * The rights protected by the Bill of Rights have efficacy because the Constitution in respect to them is self-executing. Quinn v. Buchanan, (Mo.) 298 S.W.2d 413; Perkins v. Cooper, 155 Okl. 73, 4 P.2d 64; Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745; Payne v. Lee, 222 Minn. 269, 24 N.W.2d 259; See Lyons v. City of Longmont, 54 Colo. 112, 129 P. 198.
The Court in West Virginia Bd. of Ed. v. Barnette, 319 US 624 (1943) said this about the “consent” spoken of in the Declaration of Independence:
“We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.” Id. @ 641.
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