Lowry Wyman and Barnabas Johnson, l June 1991

This essay outlines reasons why fundamental elements of criminal law and procedure ought to be contained in the Constitution and thereby elevated to the status of constitutional law rather than ordinary legislation or administrative regulation, edict, etc.

The first and main reason is that no other reasons would be compelling if constitutional law were as easy to make or alter as ordinary legislation — let alone the kinds of edicts that dictatorships thrive upon. Therefore, a few paragraphs about the necessary distinctions between constitutional law, ordinary legislation, and administrative regulation, etc., are necessary.

Soviet law deliberately confuses constitutional law, statutes, and all manner of governmental commands, exhortations, or propagandistic noise; it has corrupted the very language of law; yet law is nothing if it does not communicate; therefore, government under law must be based on a solid foundation of constitutional law that is clearly distinguishable from, and governs, other law (and requires other law to be clear, too).

Constitutional law is the highest source of law, but this does not mean that a particular country’s Constitution may allow or require anything, without limitation. Under emerging and increasingly authoritative global conceptions of “world constitutionalism” no country may allow genocide or other manifest abuses of human rights; under ancient and still valid conceptions of “natural law” no country may require an absurdity. No horse could be the Emperor of Rome. And no person could — or should — be a dictator anywhere: dictatorship is not only absurd, it is an invitation to -governmental oppression and abuse, and thus threatens world peace.

So global constitutionalism contains increasingly-important

elements limiting “the sovereignty of the people” (and of any particular person) within each and every country or polity. These constraints, by limiting the power to make domestic constitutional law, necessarily limit the power to make domestic law of all other kinds. Within those world-imposed limits, however, the people

1 Lowry Wyman holds a Juris Doctorate from the University of Pennsylvania, 1978; she is a specialist in Soviet law. Barnabas Johnson holds a Juris Doctorate from Harvard University, 1970; he is a specialist in comparative jurisprudence. They are a married couple and live near Boston, Massachusetts, USA.


are supreme. And it is they, alone, who should be empowered to ordain and establish their country’s Constitution.

The purpose of a Constitution is to govern the government by arranging and prescribing governmental functions while identifying and proscribing governmental abuses. The law-making powers of the legislature, the law-implementing powers of the executive (including police and prosecutorial functions), and the lawinterpreting powers of the judiciary — coupled with its responsibility to provide an impartial forum where disputes can be resolved according to law — are powers that should derive from the Constitution and nowhere else.

Many reject the premise that constitutional law should be “super” law that binds the legislature, for example. They believe that the legislature ought to be able to adopt any law it thinks will serve the national interest. In effect, they believe that “democracy” means “majority rule” — and that the legislature, reflecting the will of the current majority, ought not to be limited by the dead hand of previous majorities, even of referendum-voting super majorities that a/ reflected the views of more than two-thirds of yesterday’s “We, the people” and b/ labeled those results “The Constitution” and displayed it as a treasured icon.

Yet what is the point of having constitutional law if it can be altered or abandoned at the whim of a present majority or coalition? The whole point of a constitutional democracy, as distinct from a mobocracy, is that majority rule — usually reflected through parliamentary representation — is balanced by minority and individual rights. The Constitution supplies the parliament’s job description, which the parliament ought not to have the power to alter.

In a constitutional democracy, properly conceived, no parliamentary statute or executive edict or judicial decree may violate the Constitution, and only a super-majority of the people — following long and thorough debate — may alter the Constitution. That Constitution alone should be the authority underlying legislation, as legislation should be the authority underlying administrative edicts. (There are some kinds of executive edicts and administrative regulations that are properly authorized by the Constitution itself, rather than by legislation; most have to do

with the conduct of foreign relations.)

As suggested, the long and bloody struggle against governmental abuses teaches us that some kinds of abuses are so virulent that they should be outlawed as a matter of world law. No majority, whether under the authority of constitutional law or religious certitude, may commit genocide against a minority or even abuse its fundamental political, civil, and human rights. In this sense, no country is sovereign.


The world has constructed a foundation under which no country may sink in its treatment of its people, who are also citizens of the world and have the right to its protection. Fortunately, most countries place that foundation under themselves and call it their Constitution. And by doing so, they proclaim that no current or future parliament is or can be “sovereign” in the sense that it may violate that Constitution. Such countries are likely to be — or to become — healthy constitutional democracies. We hope you will be among them. They know that a constitution that truly governs the government is the best protection against governmental abuse.

Among the opportunities for governmental abuse, none is more convenient than criminal law and procedure. Many countries therefore include in their constitutions both general and detailed provisions curtailing such abuse. Perhaps the most general — and the oldest, deriving from Magna Carta — is that no person may be deprived of life, liberty, or property without “due process” or a fundamentally fair proceeding before an impartial judge applying generally-applicable law, etc. The concept of “due process” means something different from “ordinary procedures” and does not permit the legislature to adopt, or the executive to apply, “ordinary procedures” that are fundamentally unfair. If the legislative or executive powers could change this definition of “due process” then there would be little point in having constitutional safeguards of this or any sort.

Some constitutional safeguards are both broad and detailed. Experience has shown that this is necessary — that abuses cannot be curtailed unless police, prosecutors, judges, even doctors and social workers, are specifically instructed regarding what is permissible. The following provision is of this kind:

No person shall be arrested, detained, imprisoned, involuntarily hospitalized, or otherwise confined, except by due process of law and under the following circumstances:

A. Arrest or detention for non-compliance with a lawful order of a court to secure the fulfillment of an obligation prescribed by law; or

B. Arrest effected for the purpose of bringing a person before the competent judicial authority on reasonable suspicion of having committed a crime, or detention when reasonably necessary to prevent a person from committing a crime or fleeing after having done so; or

C. Imprisonment or confinement following conviction by a court; or

D. Detention of a minor, pursuant to a lawful order, for the purpose of educational supervision; or


E. Hospitalization or confinement of a person to prevent the spread of an infectious disease, or of a person who is mentally or emotionally impaired, or of an alcoholic or drug addict, in order to provide medical and other care; or

F. Confinement overnight, or other reasonable protective custody, of a vagrant or homeless person who needs protection and assistance, but only as authorized by statute; or

G. Arrest or detention to prevent a person’s unauthorized entry into the country, or to hold a person in connection with his or her deportation or extradition proceedings.

Note that the above provision does not deal exclusively with criminal law and procedure. Though not as broad as the general due process requirement of the Magna Carta, it is still very broad.

Yet it deals with details that potentially touch all lives; it makes real law, which can be directly enforced, thereby providing specific protections against all manner of governmental deprivations of liberty. The following provision is yet more detailed, and focuses more narrowly — but not exclusively — on elements of criminal law and procedure:

Every person shall be secure in his or her person, home, papers, and effects, and only reasonable searches and seizures thereof shall be permissible. A search or seizure shall be deemed unreasonable if:

A. It is not supported by a judicial warrant issued upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized; such a warrant shall have been issued by a District Court judge or an acting district court judge supervised by a District Court judge; or

B. A warrant was not obtained in a timely manner; or

c. The person seized is not promptly informed of the reason for the seizure and is not ensured a prompt opportunity to contest its legality before a District Court judge or an acting district court judge supervised by a District Court judge; or

D. Any search of premises not belonging to or occupied by the person believed to have committed a crime, is made without first providing the owner or occupant thereof with the opportunity to contest the permissibility of the


search in an adversary proceeding, unless the judicial officer issuing the warrant for the search has reasonably determined that such prior notice and hearing would create an undue risk that the persons or things sought would be removed or otherwise made unavailable.

Evidence obtained through an unreasonable search or seizure or pursuant to an invalid warrant cannot be used in criminal proceedings to support a conviction.

Governments do not create rights; people are born with inalienable rights, which they have no right to surrender; people create governments to secure these rights; unless these rights are elevated to the status of constitutional law — directly enforceable law that binds all government officials and may not be abridged by any governmental organs — these rights are not secure.

The general requirement of fundamental fairness provides a powerful starting point, but it must be supplemented with specific law. Without specificity, abuses are far more likely. In a society that values its rights, both accusers and accused need to know where they stand relative to each other. Again, law is pointless if it does not communicate: who, when, what, how, etc.

Indeed, uncommunicative law — or worse, uncommunicated law or unknowable law — is no law at all. Police and suspects alike have the right to know what constitutes a valid arrest, detention, imprisonment, etc. Confusion on this point can needlessly endanger both. By elevating such fundamental matters to the status of constitutional law, a country increases the likelihood that everyone will know their respective rights and obligations.

In a law-based state, only good can come from providing a clear statement of the legal grounds for depriving a person of his or her liberty. These grounds should be well known or at least easily ascertainable, and should include not only the details of procedure but also the fundamentals of substantive law, such as the requirement that no person be punished on the basis of an ex post facto law, secret law, or even ambiguous law. Likewise, the presumption of innocence should be elevated to constitutional status. No person should be treated like a criminal unless duly convicted.

In summary, constitutional law should govern statutory law, statutory law should govern regulations, and the fundamentals of criminal law and procedure should be contained in the Constitution so that they cannot be abridged by statutory or regulatory law. Such constitutional law should be as detailed as necessary to afford genuine protection to human rights and liberties, and to ensure that legislation and regulations covering the same subject will expand upon rather than diminish these fundamental constitutional safeguards.



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