dedicated to individual liberties and the restraint of governments that craves power.
Federal Courts and Virginia Circuit Courts have eviscerated the rights of citizens
ruling that the Virginia Constititution's rights contained in the Bill of Rights are unenforceable
I. Article I, Sections 10, 11, 12, and 16, Of the Virginia Declaration Of Rights Are Self-Executing.
Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E. 2d 674 (1995) sets forth the “fundamental analysis” for determining whether a constitutional provision is self executing.
A constitutional provision is self-executing when it expressly so declares. Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing.
Robb, 228 Va. at 681-82 (quotations and citations omitted). A constitutional provision is self executing, then, if it expressly so declares. A provision is also usually self-executing if (1) it is part of a bill of rights; (2) is merely declaratory of common law; (3) prohibits particular conduct, or (4) is of a negative character. Id.
A. Article I, Section 10, Of the Virginia Declaration Of Rights Is Self-Executing.
Article I, Section 10, of the Virginia Constitution declares:
That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
This section is self-executing because it (1) is part of a bill of rights; (2) prohibits particular conduct, namely the issuance of general warrants for search or the seizing of a person without a proper warrant; and (3) is of a negative character, stating that seizure of a person where there is insufficient evidence of a crime is not allowed in the Commonwealth of Virginia.
B. Article I, Section 11, Of the Virginia Declaration Of Rights Is Self-Executing.
Article I, Section 11, of the Virginia Constitution states, in pertinent part, “That no person shall be deprived of his life, liberty, or property without due process of law.” This section is self-executing because it (1) is part of a bill of rights; (2) prohibits particular conduct, namely the depravation of live, liberty, or property without due process; and (3) is of a negative character, prohibiting such depravation.
C. Article I, Section 12, Of the Virginia Declaration Of Rights Is Self-Executing.
Article I, Section 12, of the Virginia Constitution insures:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
This section is self-executing because it (1) is part of a bill of rights; (2) prohibits particular conduct, namely the restraint of free speech or of the right of people to assemble and petition the government; and (3) is of a negative character, declaring that those rights shall not be infringed.
D. Article I, Section 16, Of the Virginia Declaration Of Rights Is Self-Executing.
Article I, Section 16, of the Virginia Constitution declares:
This section is self-executing because it (1) is part of a bill of rights; (2) prohibits particular conduct, namely compelled belief or worship, restraint or molestation on account of religious belief, or a tax for the erection or repair of any house of worship; and (3) is of a negative character, outlawing religious tests, forced worship, and religious discrimination
That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please.
The 16 sections of Virginia’s Declaration of Rights are incorporated at Article I of the Commonwealth’s Constitution as its Bill of Rights.
Botkin v. Fisher, 2009 WL 790144, No. 08-0058 (W.D. Va. Mar. 25, 2009 followed other federal courts that deny the rights of citizens under the Virginia Constitution. The court in Botkin misconstrues Robb v. Shockoe Slip, 228 Va. 678, by erroneously applying to constitutional provisions in the bill of rights the analysis for determining whether constitutional provisions outside the bill of rights are self-executing. The court in Botkin stated “Additionally, the [Robb] Court explained that, ‘[e]ven without the benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing,’ as are ‘provisions which specifically prohibit particular conduct.’” 2009 WL 790144 at *4. However, the Botkin court then ignores the fact that in Robb the Constitutional provision in question was Article XI, §1, a provision outside of the bill of rights, and joins the foregoing quote with a test applicable only to such non-bill of rights provisions and asks whether Article I, §§ 10 and 11 lay down rules to make themselves self-executing. Id. Although spatially close in the opinion, the Botkin court ignores the chasm created between the two quotes by the Robb Court’s narrowing of its focus onto Article XI, Section 1, and away from any discussion of provisions in the Bill of Rights. The Botkin court states, “The [Robb] Court further explained that ‘[a] constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be employed and protected, or the duty imposed may be enforced.’” Id.
This merger of the different tests is erroneous as illustrated by the very next line following this quote in the Robb opinion--“Article XI, § 1, contains no declaration of self-execution, it is not in the Bill of Rights, it is not declaratory of common law, and it lays down no rules by means of which the principles it posits may be given the force of law…We hold, therefore that Va. Const. art XI, § 1, is not self-executing….” Robb, 228 Va. at 683 (emphasis added). The Botkin court’s analysis makes meaningless the Robb Court’s inclusion “it is not in the Bill of Rights” when it explains why Article XI, § 1, is not self-executing. If the analysis suggested by defendants and admittedly reflected in the federal case, Botkin, there would be no reason for the Robb Court to insert “it is not in the Bill of Rights” into its explanation. Insteade, under the analytical framework laid out in Robb, there is no reason to ask whether a provision in the Bill of Rights lays down rules specific enough to make it self-executing because “provisions in bills of rights… are usually considered self-executing.” Robb, 228 Va. at 681. Therefore, Article I, §§ 10, 11, 12, and 16, are self-executing, consistent with Robb.
In Gray v. Va. Secy. of Transp., 276 Va. 93 (2008), the court illustrated a succinct application of the test whether a constitutional provision is self-executing. Finding that Article I, § 5, is self executing, the Court simply stated that that section “is contained in the Bill of Rights, and such constitutional provisions are generally considered to be self-executing.” Gray, 276 Va. at 105, citing Robb, 228 Va. at 681. No further analysis was needed. In the same opinion, the Court considered whether Article III, § 1, is self-executing. Id. The Court found that it is, noting that it is not part of the Bill of Rights, but is of negative character and specifically prohibits certain conduct. Id. Considering whether Article IV, § 1, is self-executing, the Court observed that it is neither contained in the Bill of Rights nor cast in a negative character. However, because it provided a clear rule vesting the legislative power in the General Assembly, it too was found to be self-executing. Id. at 105-06. Article I, §§ 10, 11, 12, and 16, are in the Bill of Rights exactly like Article I, § 5. Furthermore, the language and nature of their negative character is analogous to the language found in Article III, § 1. Either characteristic is sufficient to find a constitutional provision to be self-executing. The sections at issue in this case meet both tests.
“That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct; and that the members thereof may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by regular elections, in which all or any part of the former members shall be again eligible, or ineligible, as the laws may direct.”
“The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provision may be made for judicial review of any finding, order, or judgment of such administrative agencies.”
II.The Constitutional prohibition against taking private property for public use without just compensation does not make this provision only of the Bill of Rights self-executing while all other provisions prove meaningless.
“The legislative power of the Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and House of Delegates.”
Could there be any rational basis to support the notion that only one part of the Bill of Rights, that part dealing with mere property taken, is self executing while more valuable rights of one’s freedom or life can be taken without protection by the Virginia Constitution? Our forefathers would be rolling over in their graves at such disrespect and disregard for the protections intended. See Burns v Bd. of Supervisors Fairfax, 218 Va. 625, 238 S.E.2d 823 (1977). As important as private property is to freedom, it is nothing without liberty and security.
The drafters of the Virginia Constitution no doubt were familiar with the 14th Century English logician and Franciscan friar, William of Ockham, and the law of parsimony or the law of succinctness, lex parsimoniae, "entia non sunt multiplicanda praeter necessitatem," roughly translated as "entities must not be multiplied beyond necessity." All other things being equal, the simplest solution is the best. When multiple competing theories are equal in other respects, the principle recommends selecting the theory that introduces the fewest assumptions and postulates the fewest entities. It is in this sense that Occam's razor is usually understood and is applicable here.
Some suggest that the controlling test to determine whether the provision setting out a constitutional right is self executing is whether the provision lays down a sufficient rule by means of which the right may be protected. They thereby divide the rights into two classes and point to a single class within the Bill of Rights and further still within Article 1 section 11 – the provision regarding the taking of private property without just compensation, declaring that provision alone to be separate, unique and self-executing. This argument is flawed, as evidenced by courts’ interpretation of other provisions of the Constitution. For example, the drafters of the Constitution did not elevate the takings clause over the provisions protecting one’s freedom from seizure or search---just the opposite, it is obvious to all but those who would obfuscate the Bill of Rights that the framers envisioned that there would be times when the government’s interest would exceed that of the property owner, and the government might take the property by force but would nonetheless be required to compensate the owner of the property. There is no similar discount for a man’s life or liberty. The government may not seize a man to donate his body to science for the greater good of the Commonwealth, or for any other reason. Instead, “[N]o person shall be deprived of his life [or] liberty…without due process of law.” Period. No exceptions exist like those related to private property taken or damaged.
Thus, the simplest way to understand the distinction between taking of private property for public use or taking a person’s life or freedom is that the framers of the Virginia Constitution understood there would be times where a person’s right to be unmolested with respect to his property would be subjugated to the good of the public but with the reward of being compensated. Instead of elevating the right of public property over the right of freedom or one’s life, as all do who deny the self-executing nature of the right to life and liberty while acknowledging the self-executing nature of the right to compensation should their property be taken, the framers of the Virginia Constitution acknowledged the elevated right of life and liberty, neither of which could be taken in the same fashion as property whether or not compensated.
See Chandler v. Routin
, 63 Va. Cir. 139 (2003)(Norfolk) cited by the defendants. Other examples include, Gray v. Rhoads
, 55 Va. Cir. 362, 368 (Cir. Ct. Charlottesville 2001) J. Taylor, remanded on other grounds, 268 Va. 81, 597 S.E.2d 93 (2004), (“The reason the cases finding Article I, § 11, of the Virginia Constitution to be self-executing all deal with deprivation of property, not life, is obvious; that provision expressly provides a remedy for takings of property by a governmental entity, stating that "private property shall not be taken for public use without just compensation
." (emphasis added). This language, then, renders Article I, § 11, self-executing, but only to the extent of deprivation of property; the section does not include similar language for deprivations of life and liberty. If the drafters had intended to provide similar rights and remedies for deprivation of life and liberty, they could have done so by including such language in that provision..”); See also Young v. City of Norfolk
, 62 Va. Cir. 307, 312-313 (Va. Cir. Ct. 2003) (“Article I, § 1, of the Constitution of Virginia is unchanged since its adoption by the Convention of 1776. It sets forth the natural rights of man. Article I, § 10, of the Constitution of Virginia, the prohibition on the issuance of general warrants, is also unchanged since its adoption by the Convention of 1776. I am aware of no authority in the intervening two hundred twenty-seven years that declares any private right of action exists under either provision. The silence of so many courts over so many years is, to me, conclusive. Article I, § 11, of the Constitution of Virginia embraces many objects, but only its provisions governing the taking or damaging of private property for public use have been held to be ‘self-executing.’ The General Assembly of Virginia has never adopted any statute comparable to 42 U.S.C. § 1983. The Commonwealth, its officers, and its agencies have been sued countless times under that statute, so if the General Assembly had intended to provide such a remedy under this section of the Constitution of Virginia, I am certain it would know how to do so.”).