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Dmytro Taranovsky
Last Modified: May 7, 2003
Note: The document is not necessarily reflective of the current Supreme Court jurisprudence.
To prevent abuses that threaten the entire civilization, to create happiness for all people, and to prevent great unjustified suffering, all fundamental rights are granted to all people in every civilized society. The italicized statement is also the meaning of the Ninth Amendment to the United States Constitution: The amendment grants all fundamental rights not already granted in other parts of the Constitution. Moreover, each right is a liberty since it prevents certain restrictions on one's state of body or environment; liberty cannot be denied without "due process of law" (Fifth and Fourteenth Amendments); and there is no due (proper) process of law to deny fundamental rights since denying such rights is inherently improper since fundamental rights are those rights whose protection is essential for the society. Liberty is the ability to do whatever one wants; thus, all restrictions are deprivations of liberty; however, some restrictions are proper and thus with due process of law. Freedom to control other people is a liberty since the right to achieve what one wants (or even merely freedom from bodily restraint) is meaningless without some control over other people. This document describes, explains, and justifies human rights and their protection by the United States Constitution.
The Fourteenth Amendment (for the states) and the Fifth Amendment (for the federal government) forbid unreasonable discrimination by the laws, that is discrimination by criteria irrelevant to the law's application. To discriminate, that is to punish, against people based on irrelevant criteria would deprive them of liberty without "due process of law" since a proper process of law can be based only on relevant criteria. Such discrimination occurred and still occurs because of the prejudice of the lawmakers, greatly damaging the society. Generally, laws cannot discriminate based on race, sex, age and other irrelevant criteria such as sexual orientation, ethnic culture, and religion. To forbid certain actions (with several exceptions) simply because of one's age would arbitrarily deprive some people of their rights. Age by itself has no relevance since all people are fundamentally equal and methods that are much more precise than age of differentiating people exist. Laws can discriminate based on relevant criteria--that is ability, performance (both actual and expected), and sometimes past activities. Past activities are only relevant as determinants of rewards and punishments; in other cases, the people must be differentiated but what they are now and not by what they have done in the past. Making facilities separate but equal for different groups is generally not permissible because even if the facilities are fully equal, the surrounding people are not. Some compensation for people discriminated against is desirable; however, the compensation must be based on the relevant criteria (the actual discrimination) rather than irrelevant criteria such as race (that is the amount of a pigment (melanin) in the skin).
Voting Rights: A vital "protection under the laws" is the right to vote. All people are fundamentally equal, and thus welfare of each person is of equal importance to the society. Inequality is allowed as long as it increases total welfare of the society. Since people tend to be selfish, the only practical way to make the government work for such goals is to make the government democratic, that is ruled (usually indirectly) by the people through voting. Each person must have a right to vote. This fundamental right must be given equally to all people and the government must be controlled (indirectly) through voting. Otherwise, the power would belong to an elite (those who can vote) who can choose to use it for their benefit at others expense. It is essential for the government to improve the country and to serve the people, and thus it is essential not to give the government the power to ignore the people by denying some people the right to vote. Freedom from arbitrary discrimination of interests can only be meaningful if the government must consider one's interest, and such a requirement can only be achieved through democracy. For efficiency, many powers of the government can be vested in the president; however, the fundamental rights must be preserved and the president must be periodically elected (directly or indirectly) by the people.
Why Freedom of Communication is Fundamental: Free exchange of ideas is essential for full development and change of the society. Moreover, while information can profoundly help, it cannot hurt: actions, not information, cause damage; the government should regulate actions, not speech. Depriving a person of information distorts decision making and may prevent essential improvements. With freedom of information, people decide how to use the information for their best interests. Necessary changes that were apparently bad had frequently occurred in history due to the information about possibility of change. The government cannot be generally correct when it decides what information is needed for whom. It is impossible to prove that a particular piece of information is not essential to the society--all that can be proved is that the censors did not view the content as beneficial for the censors. There is no due process of law to impose censorship since any due process of law requires public examination of reasons for the censorship and the reasons cannot be properly examined without making the document censored publicly available so that allegations about the document's contents can be verified. (If the censorship applies only to a particular recipient, due process of law requires examination of the reasons for censorship by the recipient, and thus receiving the document to be censored. The reasons may be fallacious and detection of the fallacy may require special knowledge of the recipient.) The censors (who may be selfish and narrow minded) may be dishonest, as there is no way to verify their honesty over the content censored; historically, dishonesty was widely used to deceive the society into believing the need of censorship. Finally, free exchange of ideas is essential for informed voting and thus essential for a democratic society. It is meaningless to poll people on ideas if they cannot communicate the ideas; the society cannot be democratic if the government can prevent certain ideas and thus preventing democracy on some (important) issues. Therefore, free exchange of ideas and information, called freedom of communication, is a fundamental right and is granted to all people. Freedom of communication must be granted to all people since preventing a person (any person) from communicating an idea (any idea) would block that idea, and preventing a person from obtaining an idea prevents the person from communicating ideas based on that idea and thus blocks the ideas. To allow censorship in any case would give the government the power to censor and thus endanger the society.
Exchange of Information: Ideas can be presented as a sequence of zeros and ones and thus are information. A zero or a one is an idea. A combination of ideas is an idea. Since all information can be presented as a sequence of zeros and ones, all information are ideas. Thus, free exchange of ideas means free exchange of information. To outlaw a transfer, access, or storage of any sequence of zeros and ones from any person to any person would thus violate freedom of communication. Thus, information, even if it is objectionable (such as child pornography or information on how laws can be violated) or originally obtained by questionable means (such as illegal audio taping) must still be protected. Outlawing child pornography (or any other information) would outlaw proper knowledge of the laws considered and thus violate the right to influence the government.
National Security: National security can be protected through background checks and nondisclosure contracts. Censorship does not prevent terrorism since terrorists do not obey laws, and since complete censorship is impractical. Since information is not a physical object, it does not exist in this world and thus cannot be banned the way dangerous objects are banned. Censorship, however, is incompatible with democracy and is thus unconstitutional even if censorship appears to be required for national security. The benefits of censorship, no matter how great they may appear, can be illusory. The illusion can persist as the information about the harm of the censorship is itself censored. The danger of censorship is far greater than the alleged (possibly illusory) decrease of national security when some information is released. Freedom of speech is a constraint on governmental power: If the government has the power to censor, then the government is totalitarian since through abridgments of freedom of speech the people would be convinced to follow the government even when the government is wrong.
The following restrictions do not violate the freedom of communication since they do not prevent exchange of ideas:
Restrictions on the medium of communication because of problems with use of the medium as opposed to the message. For example, in certain places, people can be forced to speak quietly to prevent disruption. The restrictions cannot be use to prevent exchange of ideas: They are used to ensure safety. The government or private people may own some mediums of communication. The government can regulate television broadcast because it owns the medium.
People who make legal claims are responsible for the content. Some claims are made implicitly. In most cases, by default, when a person says something, the communication is claimed not to be deliberately false. Moreover, in many cases, a suggestion when made by default includes an assertion that the suggestion is safe and legal. To allow free exchange of ideas, people must be allowed to use a disclaimer to remove the liability. Ordinary political claims are not legal claims.
Freedom of communication does not include the right of forcing people to view communication. The government may, for example, require a warning before a person is shown an obscene movie. To allow free exchange of ideas, people must be allowed to show the information as long as the recipient is warned and agrees to see the information.
Copyright Laws: The ability to own something means the ability to control. Since people control through real actions, they control only real objects. Information is not a real object. Thus, information cannot be owned: "control of information" means partial control of the people who think the information. Thus, copyright laws existed not to protect rights of "owners of information" but to increase revenues from discovery of information. Copyright laws outlawed distribution of information/ideas unless the original discoverer grants consent or special conditions are met. Note: "Works of literature" are information since they can be represented as a sequence of characters. Since copyright laws prevent free exchange of information, they are unconstitutional and violate fundamental rights. (The government should compensate discoverers of information directly instead of through copyright laws.)
Freedom of Thought: Freedom of communication is, of course, based on freedom of thought. Freedom of thought must be granted unconditionally, because it is necessary for human communication and because it is the universal ability to think that makes us human. Freedom of communication includes freedom of religion, as religion is ideas and information.
Nondisclosure Contracts: If a person made a nondisclosure contract, the person cannot be prevented from disclosing information since the information is protected by freedom of communication. However, in certain cases, the person can be penalized for violating the contract--technically the penalty is not for the speech but for making the contract.
Trademarks: Enforcement of trademarks is constitutional only if it stops false or misleading (implicit) claims, that is when the labeling causes confusion.
No Contact Orders: Orders may be used to limit the types of contact (especially for annoying types of contact, such as phone calls) but a blanket no contact order violates freedom of speech because there is no way of being certain beforehand that the recipient of the speech would not want that speech (added Oct 24, 2016).
Messengers: Since direct communication is severely limited, freedom of speech includes the right to be a messenger. If the messenger makes clear that he or she is not responsible for the content of the message and delivers the message in an unobtrusive way, then the messenger cannot be held liable for the message contents. An Internet Service Provider is a messenger.
Communication Equipment: Freedom of communication would be meaningless if the equipment needed for communication is illegal. Thus, to a reasonable extent, equipment that is used to store, read and record, write and output, transfer, and manipulate information is protected under freedom of communication. While physically dangerous communication equipment may be regulated, the basic right to produce, sell, and use communication equipment for all content (including objectionable and copyrighted one) is fundamental.
Rewards, Punishments, and Speech: Selective funding of speech (or other communications) does not violate freedom of speech (although it may violate other rights). However, recipients of government funding may not be punished by withdrawal of funds for speech that is not funded, except in cases of nondisclosure agreements.
Funding of Speech by private entities is protected to the extent necessary to make speech but can be subjected to certain regulations.
(Added June 29, 2006) Government employees like all people enjoy freedom of speech in their private capacity. However, the speech may be used as evidence that the employee is unfit or dangerous, who may be fired based on unfitness but not based on the speech itself.
Professional Advice: Being speech, it is protected by freedom of speech. However, such advice is usually accompanied by implicit claims—a doctor usually implicitly claims that he or she is competent to give the medical advice, and that the advice is in patient's best interests—and violations of such claims may form a basis for legal action.
Private and Anonymous Communication: Private people often severely punish people for their communications. To be meaningful, freedom of communication must provide meaningful protections against abridgments by private people. Accordingly, to allow communication without punishment, the general public is granted the right to make anonymous and private communications. Brokers of such communications may not be forced to store records of the communications as such records allow future abridgments. Such records would give the government the power to abridge freedom of speech, and impose unacceptable danger on fundamental rights. Forcible determination of identity by the government must include due process of law, in particular the anonymous speaker must be allowed to challenge (without disclosing the identity) the government's decision. The government may, however, use a reasonable amount of "wiretapping" for criminal and other investigations. Furthermore, the right to private and anonymous communication may cease to become fundamental if a radical change in human nature eliminates the dangers described above.
Forcible Communication: The right to share ideas requires the right to tell which ideas one believes in. Forcing a person to affirm an idea violates this and is thus (in general) unconstitutional.
Due process before punishment: Human rights are real only when they are enforced, that is only if people are protected from arbitrary punishment. A fundamental right is denied if a person is punished for exercising the right; if the government can punish people arbitrarily, then it can punish people for exercising their rights; thus, the right not to be deprived of liberty without due process of law (that is arbitrarily) is fundamental. Before administration of a punishment (unless the punishment is minor or the 'punishment' is a normal procedure (such as denying a prize in a competition), in which case the examination and, if appropriate, the remedy for wrongful punishment (without the remedy, the protection from minor punishments would not be effective) can be given after the punishment), the defendant must be given the right to a public trial under the following conditions: a reasonable and primarily unbiased judge(s)/jury, and the right to present and if needed to force the creation of evidence. The last right includes the right to question witnesses and to force DNA testing if appropriate. Without reasonable and mostly unbiased court, the decisions of the court could be arbitrary. A restriction on the right to present and (to a reasonable extent) force creation of evidence would make the verdict unnecessarily inaccurate and thus make punishment arbitrary. The right to present evidence includes the right of the defendant to allow almost any person to speak before the court and explain evidence: A restriction on who may (with the defendant's consent) present the evidence (and arguments) would effectively restrict the evidence since the person may have special ideas about the evidence. The trial must be public and all evidence used by the government or the plaintiff must be publicly available so that abuses of power could be detected and corrected democratically by the public. The defendant must be granted access to all evidence used against him/her since evidence may be fallacious; protection from arbitrary punishment requires protection from fallacious evidence, and fallacies can be reliably exposed only when the defendant and the public may examine them. The convicted must be given a right to have the case reexamined if substantial evidence (either about fact or about law (or about the Constitution)) exists to show his or her innocence or serious defect of the trial: To continue punishment after the convicted was shown innocent (or after the discovery that the trial was clearly inadequate and without new trial) would violate the fundamental right against arbitrary punishments. The right to force creation of evidence also applies (to a reasonable extent) after the conviction since without new evidence the conviction will have undue uncertainty, and thus be unconstitutional. To prevent arbitrary, wrongful or pretextual punishments, the standard of proof must be sufficiently high--"Some evidence" standard is insufficient for severe punishments such as imprisonment or deportation.
Double Jeopardy: To prevent arbitrary punishments that are likely to occur if the government tries (for a crime) a person many times, the government is limited in the number of times it can charge a person with the same or similar crimes.
Self-incrimination: A person cannot be forced to 'incriminate' him/herself since if a person is required to self-incriminate, the person is often effectively forced to lie (as opposed to being 'silent') to avoid a (possibly severe) punishment for the crime the person is tried. Such actions are cruel and arbitrary, and thus violate fundamental rights. Self-incrimination also violates the right to privacy.
Right To notice of laws: A punishment for an act is arbitrary if the person punished could not know about the laws on which the punishment is based before the punishment and the act neither violates fundamental rights nor is plainly wrong and harmful. Thus, the right to obtain an advisory opinion (from an appropriate authority) on the meaning of a vague law and not to be punished for violating such a law when the action is legal under the advisory opinion is, to a substantial extent, a fundamental right.
What is Punishment: Any discrimination is a punishment since the person is punished for having the property being discriminated on, except that discrimination by private people (who have no special authority) that does not abridge fundamental rights does not qualify as a punishment. Thus, remedies in civil cases, administrative actions, and punishment of children by the parents are examples of punishments.
Right to Attorney: Since criminal and some other cases are complex and may involve severe punishments, the defendant in such cases has a fundamental right to a competent attorney(s) even if the defendant cannot pay for the attorney. Without the attorney, the court's decision is much more likely to be inaccurate and thus arbitrary: The defendant may be unable to properly examine the evidence and analyze the law, causing the decisions to be based on the prosecution's often intentional misinterpretations. This right extends to all cases involving imprisonment or deportation (and some other cases as well) (sentence added Sep 28, 2015). In all cases, one may use consensual assistance of counsel of one's choosing even if the counsel is not licensed to practice law (sentence added Nov 4, 2016).
Discriminatory Law Enforcement: Discriminatory law enforcement punishes the criminals against whom enforcement was discriminatory, and the victims who were denied protection due to lack of law enforcement. Since such punishments are arbitrary, fundamental rights include meaningful protections against discriminatory law enforcement.
Court Orders: Court orders, remedies, and sentences are laws since they restrict actions and thus are to be overturned if they violate Constitutional (and thus fundamental) rights. However, to prevent disorder, people can be punished for refusing to comply with incorrect court orders except in certain cases such as when the order is inherently improper. Since censorship is always improper, enforcing censorship would constitute arbitrary punishment (and violate democracy). Since courts decide when to hold people in contempt (even for violating orders that are unconstitutional as long as the court believes the order to be constitutional), the limitation on court orders does not unduly restrict the courts. Although punishment for contempt of court is an administrative action (in USA, no right to trial by jury, no prosecution by the executive branch), full due process rights must be given to the accused.
About punishments: A punishment may not be cruel and may not deny fundamental rights (such as freedom communication and protection against arbitrary disciplinary actions), for some people are wrongly convicted/punished, in some cases breaking a law is the best choice, and fundamental rights are granted to all people. The purpose for punishment is to improve the offender, prevent the offender from committing crimes, deter people (including the offender) from committing crimes, and compensate the victim (through fines or perhaps service), but not to cause pain to the offender. The total welfare of the society is the sum of individual welfare and thus includes the welfare of the criminals. The protections (and due process before punishment) are against any form of power such as federal government, state government, mental hospitals, and family members. Since punishments cannot be arbitrary, they cannot be arbitrarily severe or grossly disproportional to the offense.
Assembly and Interaction: Since meeting (assembly) is a method (medium) of communication, the USA Constitution protects freedom of assembly (under certain restrictions) as a fundamental right. Freedom of interaction (to a reasonable extent) is a fundamental right that is an extension of the freedom of assembly. Interaction can be used for communication. Moreover, when all parties involved give an informed consent and the interaction does not cause special damages, the government has no legitimate purpose regulating the interaction and thus the restriction would be without due process of law. Any group of consenting people (including children but excluding those that are punished for a crime) have a constitutional right to have sex (or other interaction) with each other as long as there is no real danger of physical damage/disease and either there is no real psychological damage or each person damaged is given proper psychological guidance and information (before, during, and after the activity) and each of the people damaged give the consent in a proper state of mind. A restriction of interaction may, however, be used as a punishment for a crime.
Religious Equality: The best religion is selected through free competition of religions. Therefore, the federal government is explicitly prohibited by the First Amendment from selectively advancing a religion. An arbitrary support of a religion by a state would violate equal protection under the laws and due process of law and is thus unconstitutional by the Fourteenth Amendment--some people lose comfort (which, as a right, is a liberty) when a state advocates a religion. Moreover, a governmental support of a religion makes the competition of religions uneven and thus may prevent the triumph of the best religion. The support can be physical or verbal. (Verbal support means embracing and teaching religious doctrines as official knowledge.) Funding religious indoctrination promotes an establishment of religion. When funding parochial schools, the government may fund secular but not religious components of education. The funding may be based only on the secular components. Much rather like human rights impose stringent limitations on government funding of whites-only schools, adherence to fundamental rights prohibits most governmental funding for services (such as education) that the service providers offer only to members of a certain religion. Providing broad exceptions to churches from adhering to laws promotes religion (since 'nonreligious' organizations do not receive the exceptions) and is thus unconstitutional.
Personal Rights: To a reasonable extent, the right to control one's body and not to have the body damaged is fundamental because such right is needed for proper existence and thus for preservation of other rights. (However, the right (to a reasonable extent) excludes the right to harm one's body; use of harmful drugs is not protected by the United States Constitution.) Abortion is controlling one's body by removing a foreign collection of cells and is thus (to a reasonable extent) a fundamental right. Necessary medical care for those who pay and agree to it is also to a reasonable extent fundamental right since such care is necessary to control one's body and prevent bodily harm or death. Substantial irreparable body harm (such as amputation) may make proper existence impossible and violates the right to correct the verdict if the verdict is found incorrect, and is thus unconstitutional unless it is necessary to prevent the victim from doing immediate serious damage, or the victim knowingly consents and retains consent at all times, or the harm was clearly shown to be beneficial for the victim's body, or the harm was accidental and the victim was not forced (except when necessary to preserve other people from immediate damage) to enter the high-danger area and the accident was not due from deliberate actions to cause such accidents. When irreparable body harm is done to constrain the victim, the harm may be done only when it is necessary to prevent immediate serious damage (such as serious harm to other people, or escape of a dangerous criminal) and then only if the person doing harm takes sufficient reasonable steps to persuade the victim to cooperate but the victim refuses. Inflicting unacceptable physical pain or other cruel or strongly coercive things such as sensory or sleep deprivation or rape as punishment violates fundamental rights because physical pain can effectively force (as opposed to persuade) a person to speak and behave in a particular way and thus can easily be used to violate fundamental rights: The protection of fundamental rights is fundamental, and it requires denial of power, or at least of authority, to violate the rights. Since the power to reduce health implies the power to kill, reduction of health cannot be used as punishment. Prisoners must be provided appropriate medical care because lack of medical care may cause unacceptable pain or death and the government by imprisonment prevents prisoners from obtaining medical care on their own or working to pay for medical care--denial of medical care would effectively violate the right not to have one's body harmed. Medical care also compensates for the fact that prisons tend to be unhealthy. Moreover, the government must take proper care to ensure safety and satisfaction of basic needs of the people it constrains to certain locations (such as prisoners). Otherwise, the constraint would effectively violate the right not have one's body harmed.
Forced Psychological Treatment: Since psychological treatment changes thought, and since freedom of thought is inalienable and forms the basis of all rights, forced (that is either without prior (informed) consent or with consent withdrawn) psychological treatment must be severely restricted. Such treatment must preserve freedom of thought. Brain surgery and other invasive methods (such as electroshock) may not be forcibly administered to correct psychological problems. Psychoactive drugs may not be forcibly given unless their effect is very mild. Hypnosis may not be involuntary. Instead, the noninvasive treatment (such as counseling) should be used and, when proper, the patient should be persuaded to accept other treatment. Although in certain cases forced invasive psychological treatment might be beneficial, violations of freedom of thought are always dangerous and can never be accepted.
Property: Since, for proper existence (and for production of speech), people may need some of the items they own, private property rights are (to a reasonable extent) fundamental. Since the right to control objects is a liberty, deprivation of property without due process of law violates fundamental rights. The property rights include the right to one's body, the right to own items, the right to control the items one owns, and a (limited) freedom to enter into (binding) contracts. The right to pay for communication equipment to communicate and the right to sell books and other data storage devices (with information) is (to a reasonable extent) fundamental since otherwise communication may be impossible. Property rights are also very important as economic incentives.
Government employees cannot be fired due to their views on issues irrelevant to their performance since firing them is discrimination based on irrelevant criteria.
Because of the compelling need not to create harmful people, the Constitutional right to reproduce is very limited.
Constitutional Restrictions on Private Entities: Although the fifth amendment binds everyone (deprivation of liberty by a private person is a deprivation of liberty and thus requires due process of law), its restrictions on actions of private people are mild since private people have only a limited power and must enjoy freedom to choose actions and freedom to make laws (through legislatures). However, a business can for practical purposes become a public entity if it receives much funding from the government, is granted special rights by the government, or performs functions that typical for the government (such as police service or provision of certain infrastructure). Such businesses are subject to constitutional restrictions similar to that of public organizations since there is no compelling reason why constraints on an organization should depend on whether it is formally a public entity or is a public entity for practical purposes.
Rights of Immigrants: Since all fundamental rights are part of the United States Constitution, which is the supreme law of the land, they apply to all people (including illegal immigrants) in the United States. (Since the Constitution is legally binding for all people in the USA, it applies to all people in the USA.) The government, however, reserves the right to set up immigration restrictions and order deportations. Arbitrary immigration policy denies without due process of law the liberty of Americans to be with immigrants and is thus unconstitutional (and violates fundamental rights). Deportation is a punishment and requires appropriate (open) hearings and opportunities for judicial review.
Voting: Immigrants can vote in the country in which they are citizens. The USA does not control the immigrants as the immigrants belong to the home country (where they should have a right to vote), so the immigrants (who are not USA citizens) do not have a Constitutional right to vote in the USA. All people whose country is USA (i.e. citizens) have a right to vote in the USA, however.
Citizenship and Deportation: If the government has a broad right to deport its citizens or to strip people of citizenship or not grant citizenship in the first place, the government can ignore the people through these actions and violate fundamental rights. Thus, a person cannot be stripped of citizenship without the person's informed consent. A citizen can be deported only for a crime (the crime must be directly related to the country to which the person is deported) and after a proper judicial proceeding and then only to a country where the person will retain all fundamental rights. Grant of citizenship must be almost automatic for people born/created in the country.
Involuntary Commitment: Travel to certain places is restricted or impossible, so the right to choose one's location is not a fundamental right per se. However, to protect fundamental rights, people (except as a punishment for a crime) cannot be constrained to a particular location unless there is a strong/compelling physical need (due to danger to oneself or others) to do so or the person is charged with a serious crime and is likely (that is, with a substantial probability) to evade the trial (or commit other serious crimes) if not constrained. The commitment must follow due process for punishments (with periodical reviews by courts if requested), protect fundamental rights, and (except as a punishment for a crime) not bring undue discomfort; the government (unless as a punishment for a crime) must take reasonable steps to quickly eliminate the need for the commitment. (Parents' control over children is not subject to all of these restrictions. A war can create a compelling physical need that can make limited involuntary commitment constitutional.) If these steps are not followed, the commitment is an arbitrary punishment and thus unconstitutional. A person waging war on the country can be punished for the war but cannot be denied fundamental rights.
Death Penalty: Death penalty prevents a person from making and communicating any information after the application. Thus, death penalty violates freedom of communication (freedom of speech and freedom of press). One fundamental right is the right of the defendant to have an accurate verdict and the right to correct the verdict if new evidence appears after the trial. Death penalty prevents any examination of the verdict after the execution. Death penalty destroys the body and thus violates the right to sanctity of one's body. The rights above, being fundamental, cannot be denied. Moreover, the courts cannot be certain that the convicted is guilty. Even if the convicted is guilty, the courts cannot be certain that the crime was a bad thing to do. Therefore, death penalty is unconstitutional. Human deaths can, however, occur in an accident of war or self-defense. Moreover, war is a breakdown of civilization and this document directly applies only to civilized societies.
Involuntary Service: The USA Constitution (13th amendment) states: "Neither Slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Thus (except as punishment for a crime), involuntary service (including conscription and forced jury duty) is forbidden by the Constitution. Moreover, forcing people into physical danger (as in combat) violates their right to control their bodies (danger can disrupt their bodies) and thus violates their fundamental rights. Moreover, arbitrary selection and placement (for example, through a lottery) of people for involuntary service is without due process of law. If forced service were somehow constitutional, the selection and placement must be based on individual determination of the impact on the society and the person and must have the safeguards of criminal proceedings. Service can be encouraged (without being required) by giving rewards in exchange for service. Also, when used as a punishment for a crime, because forced service imposes a large restraint on the mind and often body of the person, the person must be given a meaningful alternative (sentence added Oct 4, 2015).
Privacy: At present, courts may fail to enforce all fundamental rights, and exercising certain fundamental rights can cause extraordinary discrimination by the people. Therefore, at present, privacy is a fundamental right to a reasonable extent. Privacy protects people from unfair discrimination for much of their choices. The Fourth Amendment prohibits unreasonable searches of people and their belongings and "effects". A typical remedy for a violation by the police of privacy rights is preventing the information learned (from the violations) from being used as evidence to punish the person whose rights were violated. For the right to be meaningful, at trial, the defendant has a constitutional right to require that the government publicly presents cause for the searches, and to have the court evaluate whether the searches are legal. Moreover, to a reasonable extent, keeping votes in a popular election confidential is required by fundamental rights, for otherwise private people would be able to violate the right to vote by punishing those who refuse to vote for the candidate that the private people support.
Children's Rights: To be truly protected, all fundamental rights of all people must be protected against all forms of authority. Since children are people and parents are an authority, the fundamental rights of the children may not be abridged by the parents. Parents may not prevent children from giving or receiving information (freedom of communication). Parents may not punish children without a proper examination of evidence and without the right of the child to present evidence (necessary for fundamental rights). However, because children often lack competence in real life situations, parents may have a reasonable control over their children (such as preventing children from eating too much of nutritionally unsound food or restricting dangerous activities) provided that the decisions can be reviewed by courts (necessary to prevent arbitrary power of parents). Since education is essential for the society, basic education is a fundamental right.
Note: The due process clause of the fifth amendment does not specify an authority and thus restricts everyone.
Basic Needs: If the development of the society proceeds as planned, the society will be able to prevent great human suffering and the right to have all basic needs satisfied will become fundamental. Basic needs are food, proper environment, medical care, and opportunities for advancement. Eventually, the society might be able to prevent human death and make human right to life truly unalienable.
Democracy, Courts, and Fundamental Rights: To prevent abridgments through laws, all fundamental rights should be a part of the Supreme Law by the people in all countries, and all laws contrary to the rights must be void. A law that violates a fundamental right is inherently improper and so should not be valid. The arguments for fundamental rights are subtle and complex; on its own, the public is likely to forgo some of the rights for satisfaction of their wishes. While public support for fundamental rights is essential for the enforcement, the decisions must be made by the courts since the human rights are individualized and involve complex legal issues that are best interpreted by the courts. Just like the right to democracy does not give the public the right to instantiate a dictator, it does not give the public the right pass laws that abridge human rights. Fundamental rights are best viewed as a whole: Meaningful protection of one right requires protection of all of them. For example, the right to elect leaders is meaningless without the right to criticize them; the right to criticize is meaningless if the government can punish people arbitrarily. Democracy is best defined as a system of government where all fundamental rights are satisfied; most
undemocratic countries give people the right to elect their leaders, but the right is meaningless without protection of fundamental rights. Since the courts interpret the law, they decide what the law legally means, and thus they decide if the law has legal value. If a law contradicts to a higher law, then the former is without legal value and thus cannot be enforced in courts.
Enforcement of Rights: Fortunately, explicitly and through the Fifth, Ninth, and Fourteenth Amendments, the USA Constitution grants all fundamental rights to all people. Since fundamental rights are meaningless if they are not enforced, the right to have fundamental rights enforced is a fundamental right. If violations of fundamental rights by private people are not remedied, then fundamental rights are denied. Therefore, those whose fundamental rights have been abridged (by a government or a private person) have a Constitutional right to have their complaint properly considered in an appropriate reasonable (and unbiased) court in a timely way. For the consideration to be proper, it must include the right to public trial (all of the evidence the government uses must be public), the right to present relevant evidence, and the right of consensual assistance of counsel of one's choosing. The court shall grant all necessary injunctions and remedies to preserve all fundamental rights.
The complaint may be brought by a different person than the one directly injured when the one injured cannot properly bring such complaint (if the victim is denied freedom of speech or the victim is a child or mentally disabled or dead or tortured). Otherwise, fundamental rights would not be preserved.
The right to some physical safety is, to some extent, a fundamental right since without physical safety, fundamental rights are likely to be denied. Thus, the governments must take certain steps to protect the safety of the people. Discriminatory enforcement of laws can also be remedied by court.
Importance of Fundamental Rights
By definition, preservation of fundamental rights is essential to the society. The alleged benefits of denying fundamental rights can be illusory; the harms can be arbitrarily severe. To allow abridgment in any case, even to avert omnicide, would mean creating a decision procedure of when to abridge fundamental rights, which in turn means violating human rights based on merely an illusion of harm (by definition, illusion of harm is indistinguishable from harm; the society is obviously suspectible to illusions), which can cause omnicide from denial of rights to the society. Interested parties can deceive the public and the courts into believing the existence of a pressing need. They have done so in the past. The decision procedure for abridging fundamental rights would have to be created now (when there is no clear danger of omnicide), and since any procedure that allows abridgments of fundamental rights in a civilized society is unacceptably dangerous, the required procedure is to never to allow violations of fundamental rights. Any attempt to abridge fundamental rights is self-defeating. Fortunately, fundamental rights are very flexible: They allow concentration of power in the executive when necessary; detention of people who are not convicted of a crime can be nonarbitrary; only freedom from censorship aspect of freedom of speech is absolute; right to government sponsored nutrition is contingent on the economic situation; and so on. The flexibility reminds us that the rights protect the society (as a whole), and in the long term they protect national security as opposed to being balanced against it. Therefore, all fundamental rights must be granted to all people in any civilized society.