Louisiana Constitution of 1974: Declaration of Rights

Loyola Law Review, Spring 1975

By Rep. Woody Jenkins, Member, Committee on Bill of Rights and Elections, Louisiana Constitutional Convention of 1973; co-author, Declaration of Rights, Louisiana Constitution of 1974; member, Louisiana House of Representatives; B.A., LSU, 1969; J.D., LSU Law School, 1972.

The Preamble and Declaration of Rights of the new Louisiana Constitution make fundamental changes in political theory which will significantly alter the relationship between Louisiana citizens and their government.  The 1921 Constitution stated that “[a]ll government . . . is instituted solely for the good of the whole.”1 It emphasized collective or group rights, describing them as rights “of the people” as a whole,2 leaving considerable doubts as to the meaning of these rights and as to whether individual citizens could actually utilize them to invalidate state laws or prohibit state action.3 However, when the Committee on Bill of Rights and Elections submitted its proposal for a new Preamble and Declaration of Rights to the full Convention on July 6, 1973,4 virtually all reference to collective rights had been eliminated from the document and a quite different concept of individual rights had been embraced.5 This dramatic change in philosophy concerning the very nature of rights provoked intense controversy during floor debate and was undoubtedly at the heart of much of the opposition which the proposed Declaration encountered.6 Nevertheless, delegates rejected attempts to restore the concept of collective rights, despite warnings that they were changing Louisiana’s theory of government.7 It is impossible to fully appreciate the many subtle changes made by the new Declaration of Rights without understanding the significance of this reversal in philosophy.

The new Louisiana Constitution is the first state or national constitution to be influenced by modern libertarian writers.8 The libertarian’s passion for strong limitations on the power of government and for both economic and social freedom is evident throughout the Declaration of Rights.  As a result, the document is not entirely attractive to either conservatives or liberals but is probably ideologically acceptable to both.9

Why is it necessary for a state constitution to have a bill of rights?  There are two reasons.  First, it can make the Federal Bill of Rights fully binding on state government.  When that document was adopted, it had no application to the states.10 It constituted a limitation only on the powers of Congress.  Later, as a result of the ratification of the fourteenth amendments, portions of the Federal Bill of Rights were held to protect citizens from state action.11 However, the second, third and seventh amendments and portions of the fifth and eighth amendments have never been made applicable to the states.12 Therefore, a declaration of rights in a state constitution is necessary to prevent state governments from violating all of the rights enumerated in the United States Constitution.  Second, and most importantly, a bill of rights in a state constitution can give protection to other rights not recognized by the Federal Constitution.

The tenth amendment provides that the powers not granted to the federal government are reserved to the states and to the people.  And it is generally held that a state has all power not denied to it by its  own constitution.  Therefore, one of the most important functions of a state constitution, and especially of its bill of rights, is to limit the power of the government it creates.13 On the other hand, it does not, and perhaps cannot, limit strictly private action.14 That is a function of the statutes.  Nor is its purpose to guarantee material  or aesthetic benefits.15 A constitution cannot reasonably yield or give away rights, particularly those of future generations who cannot consent to a social compact devised in the preset.16 Realistically, a bill of rights can protect rights only by denying authority to government and by thus insuring that statutes enacted or actions taken in violation of those prohibitions will be void and without substantive legal effect.17

The type of legislation or state action, which may be prohibited in order to protect rights depends on what a “right” is and to what extent rights ought to be shielded from government intervention.  A good explanation of the theory of “rights” underlying both the Federal Bill of Rights and the Declaration of Rights of the new Louisiana Constitution is found in the French Declaration of Rights of Man:

[T]he exercise of the national rights of every man has not other limits than those which are necessary to secure to every other man the free exercise of the same rights . . . . 18

Preamble

The preamble to a state constitution is not a legally binding part of that constitution.  It does not give additional protection to rights nor create legal remedies.19 Nevertheless, it is an important part of a constitution because it helps record the purpose, philosophy and goals of the Convention.20

The form for the new Preamble was taken from the Illinois Constitution of 1970, although most of its substance is quite different.  Its reference to “economic . . . liberties” is new and is intended to recognize Louisiana’s adherence to the free enterprise system.  The first purpose listed in the Preamble is to “protect individual rights to life, liberty, and property”.  Most colonial constitutions explicitly recognized these same rights.  However, it was the rights to “life, liberty, and the pursuit of happiness” which were mentioned in the Declaration of Independence.  The substitution of “the pursuit of happiness” for “property” was considered a victory for those who wished to de-emphasize property rights to “life, liberty and property”,21 but this phrase was omitted from lost later state constitutions.  The 1921 Constitution said that no person could be deprived of life, liberty or property without due process of law but never affirmed that citizens have such rights.22

The Preamble recounts the Convention’s desire to “afford opportunity for the fullest development of the individual; assure equality of rights; [and] promote the health, safety, education and welfare of the people . . .”  However, the committee inserted the word “promote” in lieu of “provide” as a less paternalistic and more analytically accurate statement of what was intended.

Section 1—Origin and Purpose of Government

Section 1 of the Declaration of Rights further clarifies the theory of government adopted by the Convention.23 Although the linguistic differences between the first two sentences of the old and new constitutions are slight, the phraseology of the 1921 Constitution, “[a]ll government . . . is instituted solely for the good of the whole” was changed to “[a]ll government . . . is instituted to protect the rights of the individual and for the good of the whole”, reflecting the Convention’s desire to give new protection to individual rights.24

The final sentence of this Section can, however, have far reaching effects.  First, it insures that the rights enumerated in the Declaration of Rights cannot be legislated away by the state.25 Because all rights listed in that article are inalienable, no other provision of the Constitution can be interpreted in such a way as to infringe on these rights.26 The effect of this standard is to place the Declaration of Rights on a plane higher than the remainder of the Constitution.27 Second, this sentence constitutes a severe limitation on the state’s police power,28 especially in view of the fact that Article XIX, Section 18 of the 1921 Constitution, which provided that “the police power of the state shall never be abridged”, was not fully incorporated into the new Constitution.29 Third, not only is the state forbidden from alienating the enumerated rights, but it also has a duty of preserving those rights inviolate.30 This requirement may compel state officials to resist the enforcement of certain federal statutes.31 However, in such a case, federal officials may defer to a state constitution more protective of individual rights than the Federal Bill of Rights, viewing such an expansion of liberty as a valid exercise of the seldom used ninth and tenth amendments.32 Fourth, even though the enumerated rights are inalienable by the state, individuals themselves may normally waive their rights,33 although there are exceptions to this rule.34

Section 2—Due Process of Law

Section 2 tracks the corresponding provision in the 1921 Constitution which guarantees that no person will be deprived of life, liberty or property, except by due process of law.35 It continues the standard of “fundamental fairness” used to determine whether governmental action violates those “principles of justice which lie at the base of all of our civil and political institutions”.  Likewise, this interpretation encompasses both procedural and substantive due process.37

Section 3—Right to Individual Dignity

The adoption of Section 3 marks the first time that Louisiana citizens have been guaranteed equal protection of the laws by their state constitution.38 “This section simply means that if a person is denied the equal protection of, or is discriminated against by, state law or conduct, based on arbitrary standards, that law will be stricken down.”39 The Section is clearly intended to proscribe governmental action instead of private discrimination, which is dealt with in Section 12.40

The first sentence of Section 3 restates the equal protection clause of the fourteenth amendment which was already binding on the state.41 However, the second and third sentences enumerate certain specific kinds of discrimination which delegates thought it especially important to protect against.42 The second sentence prohibits all laws which discriminate against persons based on race or religion.43 These are intended to be not merely “suspect” classifications but prohibited classifications.  Their purpose is to make the state blind to both the race and religious beliefs of its citizens.  On the other hand, the third sentence of the Section makes birth, age, sex, culture, physical condition, political ideas and affiliations “suspect” classifications.44 The law can discriminate against a person on the basis of these characteristics only if discrimination is not arbitrary, capricious or unreasonable.  The proceedings of the Convention give little insight into precisely what this means, especially in the area of sex discrimination.  Much is left to the judgment of the courts.  However, many of the distinctions based on sex found in the Civil Code have a reasonable basis and remain constitutional.†  Furthermore, Professor Robert Pascal testified before the committee that even an unqualified rejection of sex as a basis for making legal distinctions would not invalidate community property laws, because the establishment of the community regime is consensual and can be avoided by prior agreement of the parties.45 Clearly, the Convention had no intention of adopting a provision equivalent to the proposed equal rights amendment to the United State Constitution.  The Convention was well aware that the Legislature had rejected the ERA the previous year and was not inclined to invite the public controversy which would have accompanied its inclusion in the state constitution.  The Section was approved with the support of delegates who, as members of the Legislature, had opposed the ERA.46 And, although the ERA forbids virtually all discrimination based on sex, this Section prohibits only arbitrary, capricious and unreasonable discrimination.  Also, it is clear that this Section proscribes only governmental action.

This Section is intended to prohibit the imposition of racial or other quotas.47 An original committee draft of the Section stated this explicitly, but the committee later agreed that the invalidity of quotas was self-evident and that the language could be deleted as unnecessary, relying instead on the official comments to explain this point.  Weeks after the adoption of the Section, a proposal at the Convention to guarantee that “a proportionate number of citizens from the predominate minority races of the state” be appointed to the State Board of Elementary and Secondary Education was defeated when delegates were reminded that such a provision would establish a racial quota, in violation of this Section.48 The failure of the Convention to adopt an amendment to Section 12 on access to public accommodations, which would have guaranteed freedom of association, does not weaken the prohibition against quotas implicit in Section 3.49 The adoption of such an amendment would have had no bearing on the issue of quotas but would have merely strengthened the argument that private clubs are not affected by the prohibition against discrimination in access to public accommodations.

Section 4—Right to Property

The right to own and control private property is recognized and given far-reaching new protection in another entirely new Section entitled “Right to Property”.50 Certainly, no other state constitution places such extensive limitations on the power and authority of government to regulate or expropriate private property.51 The Section resulted from a concern that legislative bodies and regulatory agencies have seriously eroded private property rights, while the courts have refused to use constitutional protections, such as the due process clause, to invalidate even the most irrational and demagogic regulatory schemes.52 Delegates also believed that both public and private entities authorized by law to expropriate have abused that power.53 Finally, delegates expressed the fear that there were few constitutional safeguards against the expropriation or nationalization of major industries and business concerns which has occurred in other countries.54

The first sentence of the Section spells out various attributes of the right to property.55 The right is then limited by the two exceptions listed in the second sentence.  This has the effect of making respect for property rights the rule and “reasonable statutory restrictions and the reasonable exercise of the police power” the exception.56 Unlike, present law, this does not mean that a statutory restriction or an exercise of the police power is constitutional merely because it does not amount to a “taking” of property.  The first two sentences would have been meaningless if that had been the intent, because the remainder of the Section protects citizens when their property is actually taken.  On the contrary, the purpose of this language is to limit the authority of the Legislature and to limit the exercise of the police power to a standard of “reasonableness”.  Moreover, since the rule is protection of property rights and the exception is regulation of those rights, the burden of proof must shift from the owner of property to its regulator.  In other words, it is not the duty of the property owner to demonstrate that a given regulatory scheme is wholly arbitrary; instead, it is the responsibility of the state to show its reasonableness.  This is not to say that any manner of regulatory activity is necessarily invalid.  Price fixing, licensing laws, land-use laws, zoning, fire codes, building restrictions and countless other measures are all constitutionally permissible, provided they meet the standard of reasonableness and do not violate other constitutional safeguards, such as due process and equal protection.  Moreover, even restrictions, which do meet the standard of reasonableness on their face, must still be administered in a reasonable manner.  Even without language such as that in the second sentence, a number of other states use the due process clause in their own constitutions to scrutinize legislation with greater care than the federal courts and to invalidate laws with greater frequency.57 However, the new standard established in the second sentence of the Section provides an additional basis for the courts to inquire into the question of whether state action affecting property rights has a rational basis.

The remainder of the Section severely limits governmental authority to take or damage property.  It applies to all takings of property of whatever sort except the exercise of the riparian servitude on property necessary for levees or levee drainage.58 The Convention debated at length the desirability of providing that property could not be taken except for a “public and necessary” purpose.  It adopted that concept59 and two weeks later reconsidered the Section in order to effect a compromise.60 The result was a provision stating that property cannot be taken or damaged by the state or its political subdivisions except for a “public” purpose, while property cannot be taken by a private entity authorized by law to expropriate property, such as a utility or pipe line company, except for a “public and necessary” purpose.  Thus, the law remains the same in the regard for public bodies, but is considerably more onerous for private entities.  Nevertheless, the delegates felt that the requirement of a “public” purpose does prevent public bodies from taking more land than may be required for the use contemplated, even under the present jurisprudence.61 The reasoning behind this view is that property not necessary for a given project is not affected with a public interest.

The Section provides that the question of whether a taking by a private entity is in fact for a public and necessary purpose is a question for the courts to decide, without regard o any legislative assertion.62 Of course, a mere legislative assertion is never conclusive of such an issue, because property can be taken only with due process of law.  However, the explicit statement that the purpose of a taking can always be reviewed makes it clear that a quick-taking statute cannot be enacted to allow private entities to acquire title in an ex parte proceeding by merely filing suit and depositing the appraised value in the registry of the court.  Moreover, the Section specifically states that compensation must be paid by the utility “to the owner”.  This contrasts with the requirement that the state or political subdivisions pay compensation “to the owner or into court for his benefit . . .” (emphasis added).  The purpose of stating the requirement in this manner is to permit the continuation of the quick-taking statute used by the highway department for highway purposes.63 Theoretically, quick-taking statues can be enacted by the Legislature to permit other government departments and agencies to seize property by orders rendered ex parte.  However, because of the lack of compelling reasons for doing so and the unpopularity of the highway department’s own quick-taking authority, the extension of this authority is unlikely.

Jury trials were not allowed in expropriation cases under the 1921 Constitution after 1948 because of the passage of a constitutional amendment in that year.64 However, the new property Section gives each party to such a suit the right to demand a trial by jury to determine the amount of compensation.  The jury decides this one issue and is not to consider whether the taking is for a public or necessary purpose, unless granted this authority by statute.  Of course, the award of large sums by generous juries could have the effect of preventing the taking altogether.  Moreover, the committee did not intend the finding of facts in such jury trials to be reviewed by the courts, because the right to trial by jury in this instance is established by the Constitution, instead of by the statutes, as is the case in other civil jury trials.  In fact, the purpose of permitting jury trials was to encourage more substantial awards by placing the authority to decide compensation in the hands of a judge, who is an instrumentality of government paid by the state and the local police jury, either of which may be a party to the suit.65

The amount of compensation to be paid when property is taken is not merely “just compensation” as that term has been understood under the fifth and fourteenth amendments of the Federal Constitution and the 1921 State Constitution.  Instead, the owner must be compensated “to the full extent of his loss”.66 This is intended to include things “which, perhaps, in the past may have been considered damnum absque injuria, such  as cost of removal”,67 attorney fees,68 inconvenience, loss of aesthetic value or business profits and so forth.69 The loss to be measured is the loss sustained by the owner himself.  The Section very carefully says that the owner is to be compensated “to the full extent of his loss” instead of “to the full extent of the loss” (emphasis added).  In other words, the compensation is to be determined subjectively with emphasis on the value placed on the property by the owner instead of on its so-called market value or replacement cost.  This emphasis will generally require compensation to be much greater than in the past.

The words “owner” and “property” as used in this Section are meant to be interpreted in their broadest sense.70 The term “owner” extends at least as far as the holder of an unrecorded written lease, such as a tenant farmer whose crops growing in the field are damaged by a pipe line company.71 Regulatory activity which deprives the owners of the use and enjoyment of their property continues to constitute a “taking”.72 However, because of the limitations on state action imposed by the second sentence of the Section, a great deal of such regulatory activity may be constitutionally infirm as being beyond the standard of reasonableness.

The Section also provides that “[n]o business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with government enterprises.”  This is the first provision in any state constitution to prohibit the government from seizing the means of production.  It was clearly intended to counter what delegates perceived as excessive interference by government in the economy and the growing possibility that government would attempt to take over certain business enterprizes.73 Therefore, the provision should be broadly interpreted to prevent both direct and indirect efforts to seize any private industry.  Of course, the prohibition is not absolute, and certain expropriations can have the effect of terminating an enterprise.  For example, the acquisition of a highway right-to-way may require the taking of real property belonging to a local grocery store, causing it to go out of business.  The purpose of the expropriation in such cases is crucial.  Any effort to use the power of eminent domain to take over an existing business or seize its assets in order to create a similar government enterprise or to put an enterprise out of business in order to improve the competitive advantage of a government enterprise is unconstitutional.  In fact, this prohibition is so broad that it “might well be construed to prevent the expropriation for public housing and urban renewal projects and the like . . . . ”74 This would be true, for example, if rent or apartment houses were taken for the purpose of constructing a public housing project.  Efforts to delete the prohibition against taking business enterprises were unsuccessful.75 Advocates of retaining the prohibition characterized the issue as one of “private enterprise against government ownership”.76 Nevertheless, opponents of the concept did succeed in passing an amendment which makes one minor exception to the doctrine: “However, a municipality may expropriate a utility within its jurisdiction.”77 This power is granted only to cities and not to the state or other political subdivisions, such as parishes.  The expropriation must be for a public purpose and is subject to the payment of just compensation to the full extent of the owner’s loss, as determined by a jury, if demanded.  The expropriation can take only such assets as may be within the municipality’s corporate limits.  Utilities in areas recently annexed may be taken because they are then “within the jurisdiction” of the municipality.78 The question of what constitutes a “utility” was not fully explored during the proceedings of the Convention.  However, the author of the amendment viewed it as encompassing electric power companies, gas companies and waterworks.79 He expressed doubts that common carriers, such as bus lines and taxi cab companies were included, but opined that street cars might be.  He did not indicate whether telephone companies would be considered utilities; however, the impracticality of a city’s operating a telephone company, which must be interconnected with a much larger, privately-owned system, probably makes this question purely academic.  In addition to the objection to government-owned enterprises in general, the amendment was opposed on grounds that the rates and service of municipally-owned utilities are not regulated by the Public Service Commission and that their rate increases can be used as a substitute for local tax increases which would normally have to be voted upon by the people.80

Section 4 also provides that “[p]ersonal effects, other than contraband, can never be taken.”  This is an absolute prohibition against the seizure of certain kinds of property.  “Personal effects” include money, stocks, bonds, objets d’art, books, papers, essential tools of the trade and clothing.81 Also included are such things as jewelry, gold, silver, stamps, coins, mementos, antiques, firearms, communication and recording devices, cooking and eating utensils, food, linens, furniture, appliances and a multitude of other movables, including perhaps bicycles, motorcycles, automobiles, small trucks, boats and airplanes.  The prohibition against the taking of personal effects, a corporate entity can never be expropriated under this Section.  In addition, the fact that money, bonds, books, papers, effects and tools of the trade are exempt severely limits the kind of physical assets which can be taken from a business.  In general, the only property belonging to a business enterprise which can be expropriated is immovable property and then only in very limited circumstances.  Personal effects, which constitute “contraband,” are excluded from the protection of this sentence.  However, things can be designated as contraband by the statutes only in accord with the standard of reasonableness required by the second sentence of this Section.  In addition, such statutes must define contraband as things insusceptible of ownership to anyone, including the state.  Otherwise, contraband will be property, and property can never be taken except according to the safeguards enumerated in this Section and those guaranteed by the due process and equal protection clauses.

Section 4 has no application to the exercise of the riparian servitude by the appropriation of land necessary for levee and levee drainage purpose.  Article VI, Section 42 of the new Constitution provides that lands used or destroyed for levee or levee drainage purposes shall be paid for as provided by law.  This permits the Legislature to require the payment of just compensation in such cases.  However, until the Legislature acts on this matter, Article XIX, Section 32 provides that Article XVI, Section 6 of the Constitution of 1921 shall continue as a statute, meaning that property owners are to receive payment only for the assessed value of their property.

Section 5—Right to Privacy

Section 5 grants Louisiana citizens important new protection against unreasonable searches, seizures and invasions of privacy by government officials.82 Delegates to the Convention saw it as a means to prevent “lawless law enforcement”83 and “the iron boot of oppression kicking in your door in the middle of the night”.84 In accord with the theory of the Declaration of Rights, the right is asserted as one belonging to “[e]very person” instead of as a right “of the people”, as provided in Article I, Section 7 of the 1921 Constitution.  The Section provides that every person shall be secure in his “person, property, communications, houses, papers, and effects”.  The reference to property and communications is new.  “Property” was included to make it clear that all of a person’s property is to be protected—not merely “houses, papers, and effects”.  “Communications” was mentioned to proscribe government censorship of the mails, wiretapping, eavesdropping and other interferences with private communications.  An early committee draft of the Section had included language providing that “[n]o law shall permit the interception or inspection of any private communication or message.”85 this sentence was later deleted in order to insert “communications” in the first sentence of the Section.  However, the substituted language was intended to provide essentially the same protections.

The reference to “invasions of privacy” is also new and is intended to give the courts wide latitude in invalidating state laws and actions. 86 For example, legislation such as Senate Bills 77 and 92 of the 1974 Regular Session (requiring that all pleadings in court and all property transfers list the Social Security numbers of the persons involved) would be subject to attack as “an unreasonable . . . invasion of privacy”.  Proposals which require the disclosure of the names of contributors to political campaigns appear constitutionally infirm.87 Such measures subject the contributor to the possibility of public ridicule, loss of business or employment and political retribution, make public and thus discourage the contributor’s political associations, and encourage other candidates and fund-raising groups to solicit contributions from him.  Stop-and-frisk laws and onerous requirements for building and health inspections are equally suspect under this new provision.

The Section is intended to apply solely to government action, in accord with the view of the committee that a bill of rights cannot reach private action.  Absolutely noting in the proceedings of the Convention or in the discussions of the committee indicates an attempt to proscribe privately conducted searches and seizures, private information gathering or any other kind of private activity.  The affirmative statement in the first sentence of the Section parallels Article I, Section 7 of the 1921 Constitution, and the omission of the words “[n]o law shall . . . .”, found in some sections, has no more effect on private action than the 1921 Constitution did.  The language of the Section was not intended to curtail the use of privately-owned computer data banks.  Just the opposite is true.  The committee’s proposed Section on freedom of expression would have guaranteed the right of each person “to gather, transmit, or receive knowledge or information”.88 However, the question of government-owned computer data banks is quite another matter.

The first sentence of Section 5 prohibits all unreasonable searches, seizures and invasions of privacy.  The second sentence, which describes the requirements for a warrant, is not intended to be an exception to the first sentence.  It does not permit “unreasonable” searches or seizures to be conducted with a warrant.89 Instead, it is founded on the rule that reasonable searches and seizures are the only kind permitted and these always require a warrant, except when incident to a lawful arrest.90

A warrant must not only be supported by an oath or affirmation and particularly describe the place to be searched or the person or thing to be seized, as required under previous constitutions.  It must also state “the lawful purpose or reason for the search” in order to be valid.  Such a lawful purpose or reason would be to discover the weapon used in the commission of a specifically enumerated crime, to recover goods stolen from a particular person or to locate a person believed to have been kidnapped.

Standing is the subject of the final sentence of the Section.  It allows persons who have been adversely affected by an illegal search or seizure to have standing to raise that illegality in court.  Its purpose is to recognize additional rights not previously protected.91 Naturally, a search or seizure is “illegal” if conducted without a valid warrant.  However, it is also illegal if it constitutes an unreasonable search, seizure or invasion of privacy, despite the fact that it is conducted pursuant to a warrant which appears valid on its face.  One purpose of the provision is to extend the right to raise the illegality of a search or seizure to persons who have been harmed by illegal searches or seizures conducted against third parties.92 This is an important change in the law.  It permits a person to object when his medical records are seized from his physician or hospital,93 when his financial records are taken from his bank, or when his property is seized during an illegal search of another person’s house.94 One delegate who was not a member of the committee suggested that this prevents the state from using evidence obtained illegally by private persons.95 Such evidence does not result from “a search or seizure conducted in violation of this Section,” since the Section prohibits only government action.  The use of such evidence by the state is prohibited because it makes citizens less than secure in their “person, property, communications, houses, papers, and effects”.

This Section is not intended to create a new tort action against police officers or others.96 However, an injunction would certainly be an appropriate means of preventing the state from engaging in repeated violations of these rights.  Government wiretapping, surveillance or excessive gathering of information may justify such action.

Section 6—Freedom from Intrusion

Article XIX, Section 7 of the 1921 Constitution proved that “[n]o soldier, sailor or marine shall, in time of peace, be quartered in any house without the consent of the owner.”  However, this protection was considered insufficient by the committee, and three important changes are made by the new Constitution.97 First, “[n]o soldier, sailor or marine” is changed to “[n]o person”.  This was thought necessary to prevent the government from requiring that any person be housed in a residence against the will of its owner.  This provision is broad and seems inconsistent with some parts of federal open housing laws.  Second, he Section applies in time of war as well as in time of peace.  It was thought that wartime is the time this protection is most needed.98 Third, the ability to assert this right is extended to any “lawful occupant” and is thus not restricted to owners.  This was thought necessary because of the large portion of the population which resides in apartments and other rented premises.  Forced housing of persons on premises belonging to another seems clearly prohibited by Sections 4 and 5.  However, the committee recognized the historical importance of this Section and wanted to leave no doubt as to its continued viability.

Section 7—Freedom of Expression

This Section contains almost identically the same language as Article I, Section 3 of the 1921 Constitution and makes no substantive change in it.99 The Committee on Bill of Rights and Elections had proposed a more detailed and expensive version of the Section,100 but it was deleted on the Convention floor because of fears that it would be interpreted to broadly.101

Section 8—Freedom of Religion

This Section,102 which tracks the religious freedom clause of the first amendment, replaces the more wordy and secular language of Article I, Section 4 of the 1921 Constitution.103 The new language was adopted at the urging of the state’s Roman Catholic bishops.104 Its effect is to keep Louisiana in line with federal jurisprudence.105

Section 9—Right of Assembly and Petition

Article I, Section 5 of the 1921 Constitution expressed freedom of assembly as a collective right: “The people have the right peaceably to assemble and apply to those vested with the powers of government for a redress of grievances by petition or remonstrance.”  (Emphasis added).  That language apparently permitted the enactment of legislation designed to regulate or even prohibit certain public meetings.106 However,  the new Section107 states the prohibition against state action “[n]o law shall abridge” as an individual right, “the right of any person to assemble peaceably”.  This subtle change makes the right quite different and was specifically intended by the committee “to strengthen the traditional freedom of assembly provision”.108 The new Section permits only such reasonable regulations as may be necessary to insure highway safety and adequate sanitary facilities.  Large assemblies naturally result in traffic congestion and difficulties in providing proper sanitation.  However, problems incident to the exercise of a right cannot be used as an excuse for impairing or abridging it.

Section 10—Right to Vote

This Section constitutionalizes the right of citizens eighteen years of age and older to register and vote.109 It is the first Section of the Declaration of Rights which applies only to “citizens” instead of to all “persons”.  A person is a citizen of Louisiana if he is a citizen of the United States and a resident of Louisiana.110 Presumably, the mere presence of a person in a state does not constitute residency, and the state can establish reasonable regulations for determining whether a person who presents himself to register to vote is indeed a bona fide resident of the state.  The Section makes it clear that a person cannot lose the right to vote as long as he remains a citizen of the state.  Nevertheless, this may be suspended while a person is one, interdicted and judicially declared mentally incompetent or tow, under an order of imprisonment for conviction of a felony.  Since the grounds for suspending this right are very narrow, a number of persons in state mental institutions and parish jails have a right to register and vote.  Presumably, the Legislature must provide a means whereby such persons can vote absentee by mail or otherwise exercise this right.111

Section 11—Right to Keep and Bear Arms

The second amendment to the United States Constitution states “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”  Article I, Section 8 of the 1921 Constitution contained similar language and added the following: “This shall not prevent the passage of laws to punish those who carry weapons concealed.”  The references to a militia, and to “the right of the people” have been used to show that the second amendment does not provide a personal right to keep and bear arms at all but merely states “the people’s right” to form a militia for their own collective self-defense.  Such an interpretation has been utilized by the courts to uphold both federal and state gun control laws.112

During the committee’s deliberations, the proposed section underwent several changes, all designed to strengthen the right to keep and bear arms.  At one point, for example, the committee included the words, “[n]othing contained herein shall allow the confiscation or special taxation of arms.”113 The committee later decided to continue the language, concerning the militia but to set it off as a separate sentence, so that the courts would not interpret it as modifying the right to keep and bear arms.114 “Ammunition” was once mentioned in addition to “arms” but this was deleted, because the right to purchase, possess and use ammunition was viewed as  self-evident corollary of the right.115 Finally, the committee adopted a version which omitted all reference to the militia and “the people”, stating simply that “[t]he right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.”116 This statement clearly recognizes the right to keep and bear arms as an individual right.

When the committee proposal was submitted to the Convention, it was my belief that such an unequivocal statement of right, followed by one exception to it, would prohibit all forms of licensing, registration or special taxation of firearms.  Nevertheless, when the Section was debated on the floor, a delegate who had not been a member of the committee and who may not have been familiar with the significance of the changes made by the committee, proposed an amendment explicitly prohibiting licensing, registration or special taxation.117 The amendment was defeated, but this does not indicate that the Section permits such restrictions.  On the contrary, the Convention had a distaste for spelling out the specific intent of each section of the Bill of Rights, especially when it was controversial.  This was a factor in the defeat of the amendment.  Delegates supporting a strong “keep and bear arms”  section were so sure that the language in the committee proposal prohibited all restrictions on the right that they did not make further attempts to amend the Section even though it was common practice at the Convention for issues to be raised six to ten times when a group of delegates was dissatisfied with a provision.  Licensing, registration or special taxation of arms would constitute an abridgement of the keeping and bearing of arms, just as licensing of newsmen would violate freedom of the press, just as registration of a person’s religious affiliation as a prerequisite for going to church would violate freedom of religion, or a special tax on voting (i.e., a poll tax) would violate the right to vote.

Both proponents and opponents of the new Constitution frequently referred to the Section on the right to keep and bear arms during the campaign for ratification of the document.  Both sides agreed that it would permit absolutely no regulation of the right, except in the case of concealed weapons, because of the broad new language of the Section.118

Section 12—Freedom from Discrimination

In Section 12, the Committee on Bill of Rights and Elections and the Convention disagreed from their stated philosophy that a bill of rights can only proscribe government action.119 This inconsistency was admitted but not fully explained.120 Nor did the Convention discuss how the “rights” enumerated in the Section can be enforced against private citizens, because no criminal penalties are set forth in the Constitution.121

This Section states that in access to public areas, accommodations and facilities, every person shall be “free from discrimination” based on race, religion or national ancestry and from “arbitrary, capricious, or unreasonable discrimination” based on age, sex or physical condition.  As introduced by the committee, the proposal would not have permitted discrimination which was “arbitrary, capricious, or unreasonable”.122 However, it was changed because of a realization by the Convention that certain forms of discrimination based on age,123 sex124 or physical condition125 are not only rational but necessary.  Reasonable forms of discrimination include, by way of example, denial of minors’ access to certain motion pictures,126 establishment of separate restroom facilities for men and women,127 and refusal of a theater to admit a person confined to a wheelchair becaue the management cannot insure his safety in case of fire.128 A private business need not engage in any sort of affirmative action to insure access to a particular person or group of persons.129

No precise definition was given for “public areas, accommodations, or facilities”.  However, the intent was to encompass restaurants, taverns, barber shops, nursing homes, clinics and hospitals.130 At the same time, it does not include property owned by private clubs.131 There is some language in the debate indicating that a proper test to use is whether the business conducted by the owner is in fact open “for all people”, in which case it is a public accommodation, or whether it is “something between him and a few other people”, in which case it is not a public place.132 The definition is somewhat confusing because, if the owner discriminates, his property is obviously not open “for all people”.  The committee proposal would have also prohibited discrimination in the sale or rental of housing.133 However, this part of the Section was deleted by the Convention as contrary to the protection given the right to property in Section 4.134 Thus, it is clear that the phrase “public areas, accommodations, and facilities” was not meant by the Convention to include the sale or rental of private residences or apartments.  Nor was there an intent to include within this term private schools or colleges.  Such institutions are clearly not “public” and in any case are given the constitutional right to operate as state-approved institutions if they meet one and only one standard—the maintenance of a curriculum at least equal to that of similar public schools.135

The entire Section leaves many questions unanswered.  The lack of definitional standards, in particular, will doubtless give rise to much judicial interpretation, especially concerning the meaning of ‘public areas, accommodations, and facilities”, what constitutes “arbitrary, capricious, or unreasonable discrimination” and how, if at all, the rights expressed in the Section are to be enforced.

Section 19—Right to Judicial Review

Although designed primarily to guarantee the right of judicial review in criminal cases, Section 19 also has wide application in civil matters.136 It provides that no person shall be deprived of rights or property unless he is afforded the right to a review by a court of law137 of a complete record of all evidence upon which the judgment is based.  This right, however, may be waived.

Administrative agencies,138 justice of the peace courts, city courts, mayor’s courts, family courts, juvenile courts, district courts and the supreme court (in disbarment matters) all have the power to deprive persons of rights or property.139 However, a person deprived of rights or property by such a decision always has the right to appeal the decision or have it otherwise reviewed by a court of law.140

Because the review is to be based upon “a complete record of all evidence”, it is clear that the courts have jurisdiction to review the findings of both fact and law in all cases, including those originating in administrative agencies.

Section 20—Right to Humane Treatment

The 1921 Constitution prohibited only excessive fines and cruel and unusual punishment.141 However, Section 20 of the new Constitution forbids the enactment of any law which subjects persons “to euthanasia, to torture, or to cruel, excessive, or unusual punishment”.142 In addition, it provides that “full rights of citizenship” shall be restored to a person convicted of a criminal offense after he has served his term in prison and completed any required parole or probation.

“Euthanasia” means “the fact or practice of killing individuals that are hopelessly sick or injured, for reasons of mercy”,143 instead of the passive act of letting persons die through lack of treatment.144 The reference to euthanasia145 prohibits the Legislature from exempting mercy killing from the definitions of murder and manslaughter found in the state Criminal Code.146 The prohibition against torture outlaws virtually all forms of corporal punishment and inhumane treatment, including those not previously classified as “cruel and unusual punishment”.  Clearly, this forbids some methods of administering the death penalty, long periods of confinement in isolation, highly restrictive diets, forced administration of drugs and, of course, physical abuse of all sorts.

The prohibition against “excessive . . . punishment” makes a great change in the law and requires the courts to do justice in each case, regardless of any legislative assertion.  This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes more important question of whether the punishment does, in fact, fit the crime.  For example, it is much easier to find that imposition of the death penalty is excessive as punishment for such crimes as rape and kidnapping than that it is cruel or unusual.  Sentencing persons to lengthy prison terms as punishment for many “victimless” crimes, such as possession of marijuana or other drugs, may be unconstitutional.  Similarly, the imposition of any jail sentence for violation of certain economic, health, sanitary or professional regulations may be excessive.  Mandatory penalties are particularly suspect because they frequently have no relation to the magnitude of the offense.  For example, a mandatory prison term for the third conviction of driving while intoxicated may certainly be excessive in some cases.

The restoration of “full rights of citizenship” does not exempt persons from the application of “multiple offender” laws.147 Instead, it is intended to permit persons who have violated the law and subsequently paid for their crimes to become full citizens once again.  The proceedings of the Convention are unclear as to the extent of this restoration of rights.148 At a minimum, it includes the return of all political rights and the right to engage in licensed occupations or accept state employment if otherwise qualified.149

Whatever the intent of the Convention in this regard, the language of the provision is clear: all rights of citizenship must be restored.  “Rights of citizenship” must certainly include all of the rights enumerated in the Declaration of Rights because these belong to “every person”, “each person” and “each citizen”.  The Constitution does not provide a means whereby such rights can be taken away.  On the contrary, Article I, Section 1 provides that “the rights enumerated in this Article are inalienable by the state” (emphasis added).

Section 21—Writ of Habeas Corpus

The 1921 Constitution provided that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion, or invasion, the public safety may require it.”150 The possibility that the writ would be suspended in times of crisis was viewed with alarm by the Committee on Bill of Rights and Elections.  Speaking for the committee, one delegate told the Convention, “emergencies and other times of disorder are precisely the time when the writ is most needed”.151 On the basis of this concern, the habeas corpus provision of the new Constitution was drafted to preclude any possibility that use of the writ could be temporarily forbidden.  Thus Section 21 states unequivocally that “[t]he writ of habeas corpus shall not be suspended.”  The next Section guarantees that the courts shall always be open to provide aggrieved citizens with a remedy for deprivations of their rights.  Therefore, the effective use of the writ can be denied only by a clear violation of the Constitution.

Section 22—Access to Courts

Section 22 continues the broad language of Article I, Section 6 of the 1921 Constitution which guarantees citizens that the courts of the state will be open to hear their grievances, to provide an “adequate” remedy by due process of law and to do justice in each case without “denial, partiality, or unreasonable delay”.152 As in the past, this Section grants the courts the power and imposes upon them the obligation to provide equitable solutions to difficult legal problems.  Moreover, it requires a remedy not merely for injury to his “person, property, reputation, or other rights”.  The effect of this change is to guarantee protection for all property belonging to a person and for all rights he may possess.  The reference to “other rights” is especially significant because it makes due process rules applicable to many interests not previously given judicial protection.

Section 23—Prohibited Laws

Section 23 continues the prohibition against ex post facto laws impairing the obligation of contracts.153 It also includes in the state constitution for the first time a prohibition against bills of attainder.  Such legislation is, however, already forbidden by the United States Constitution.154

Section 24—Unenumerated Rights

The 1921 Constitution expressed Article I, Section 15 of that document in collectivist terms: “This enumeration of rights shall not be construed to deny or impair other rights of the people not herein expressed.”155 Although the language of the Section appeared on its face to protect rights not enumerated, the courts were lath to afford such protection at the expense of the Legislature.  One the contrary, the reference to rights “of the people” was held to reserve such rights to the Legislature.156

Section 24 completely reverses the concept and its line of related jurisprudence.157 It is not in any sense a grant of power to the Legislature.  Instead, it is a genuine reservation of rights to each individual citizen of the state.  Neither the Committee on Bill of Rights and Elections nor the Convention attempted to list in the Declaration of Rights all the rights belonging to citizens.  “We’re not omniscient here when we enumerate rights.  There are certain other rights that need to be protected and our courts should be able to find those in particular circumstances”, especially when legislation is passed which violates these rights.158 The theory underlying this concept is that some rights are so basic and fundamental that there is no need to enumerate them.  These include, among others, the right to marry, to raise a family, and to live and work wherever one may choose.159 “The right . . . to get married and raise a family . . . is not a right ‘of the people’; it’s a right of each individual.  It’s no kind of collective right; it’s a personal right which anybody can raise.”160 After a full discussion of the issue, the Convention rejected an attempt o restore the language of the 1921 Constitution and then adopted the Section as proposed by the committee.161

Since the very purpose of the Section is to provide citizens an entirely new means for going to court to have state laws violative of fundamental human rights invalidated, it too should prove to be fertile ground for litigation.162

Conclusion

Debate on the Preamble and Declaration of Rights of the new Louisiana Constitution occupied the attention of delegates to the Constitutional Convention for more than two weeks.  Before that, the committee on Bill of Rights and Elections had considered the proposal for nearly four months.  During these periods, hundreds of amendments were offered to delete or change existing language or add new provisions.  Virtually every word of Article I was considered carefully and debated thoroughly.  The language it contains should be read quite literally.  In almost every instance, the delegates meant exactly what they said.

The changes wrought by the new Declaration of Rights are basic.  They go to the very core of the philosophy underlying government in Louisiana.  And they change the nature of that philosophy.  There can be little doubt that the new Declaration of Rights will directly affect the life, liberty and property of every Louisianian for many years to come.


Note: Footnotes have not yet been transferred to this post.

Copyright by Woody Jenkins, Box 1, Central, LA 70739

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