----- Original Message ----- X-Loop: openpgp.net From: "Jon Roland" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Wednesday, August 02, 2000 4:02 PM Subject: [Freenet-chat] Fw: A right must be exercisable in secret > Excerpted from http://www.constitution.org/ussc/424-001jr.htm > > ------------------------ > A right must be exercisable in secret > Jon Roland > > A right is not complete unless it can be exercised in secret, and every > recognition of a right is a recognition of the right to exercise it in > secret. The reason for this is to protect the person not just from > oppressive action by government, but also from private parties and political > factions. This means persons have the rights to worship in secret; to speak > and publish anonymously and in code; to peaceably assemble in secret; to > petition anonymously (although a legal representative might need to be > revealed to pursue the petition); to keep and bear arms in secret (although > as militiamen may be required to maintain minimal military arms and other > equipment); to hold property in secret (although taxable or regulatable > commodities may be subject to inspection); and make financial transactions > and contracts in secret (as long as they are not to commit unlawful acts, > and they may need to be disclosed to be enforced by courts). Therefore, all > legislative requirements for disclosure are unconstitutional. Disclosure may > only be done through commodity inspection or due process, and then must meet > a standard such as probable cause, and may be challenged for cause. > > This general right of secrecy, sometimes called privacy, is balanced against > the right of persons to know what they need to know to make lawful and law > enforcement decisions, but the threshold of public need is high. It is > established in the Sixth Amendment right to compulsory process for > supporting testimony in criminal cases, in the Fourth Amendment right to be > secure in one's premises, effects, and communications subject to a lawful > search or arrest warrant, and in the Fifth Amendment right to not testify > against oneself. However, there is one area that, while firmly grounded in > theory, is not well established in current jurisprudence, and that is the > right to protect others from unlawful demands for disclosure. The mere > procedural predicate for such a demand is not sufficient. The disclosure > demand must be constitutionally authorized. If it is not, one does not have > a duty to comply with it, and likely the duty to resist it, especially if > one has probable cause to expect that disclosure would endanger innocent > persons. > > The basis for all rights is not just an original claim to one's own > enjoyment, but the social contract, which is very real and which establishes > the duty to defend the members of one's society from threats to their > rights, including one's own, as a member of the society. A duty entails the > right to perform the duty, and all of the rights recognized by the > constitution are based on the duty to exercise such rights in defense of the > state and its constitution. The First Amendment may not have mentioned the > duty to exercise the rights it recognizes, but the Second Amendment does, > and the duty is implicit in the First as well. That is, we have a duty to > worship, speak, publish, assemble, and petition in defense of the society. > That does not mean the right may not also be exercised for one's one private > benefit and enjoyment, but there is an implied state power to enforce the > duty for every right except the rights to think, believe, and worship, and > there is an enforceable duty to acquire the knowledge and skills needed to > perform the other duties. > > ---------------End of Original Message----------------- > > =================================================================== > Constitution Society, 1731 Howe Av #370, Sacramento, CA 95825 > 916/568-1022, 916/450-7941VM Date: 08/02/00 Time: 12:02:07 > http://www.constitution.org/ mailto:[EMAIL PROTECTED] > =================================================================== > > > _______________________________________________ > Freenet-chat mailing list > [EMAIL PROTECTED] > http://lists.sourceforge.net/mailman/listinfo/freenet-chat > >
