Constitutional Rights, Powers and Duties
Discussions of rights are sometimes confused concerning what are and are not rights of the people or powers of government or the duties of each. This is an attempt to summarize most of the more important rights, powers, and duties recognized or established in the U.S. Constitution, in Common Law as it existed at the time the U.S. Constitution was adopted, or as implied therein. Not included are certain "internal" or administrative rights and powers that pertain to the various elements of government within each level with respect to each other.
"Persons" are one of the two main classes which are the subject of rights, powers, and duties, the other being "citizens". Persons may be "natural" or "corporate". "Citizens" are a subclass of "natural persons". Only persons have standing as parties under due process. Each government has the power to define what is and is not a "person" within its jurisdiction, subject to certain restrictions of Common Law and the Constitution, the 15th Amendment to which requires that it not exclude anyone based on race, color, or previous condition of servitude. Under Common Law existing at the time of the adoption of the U.S. Constitution, "natural personhood" was considered to begin at natural birth and end with the cessation of the heartbeat. But technology has created a new situation, opening the way for statute or court decision to extend this definition and set the conditions under which personhood begins and ends.
Each government may also establish, within its jurisdiction, "corporate persons" such as governmental entities, associations, trusts, corporations, or partnerships, in addition to the Common Law "natural" persons, but the "personhood" of such corporate entities is not created by the government. Its corporate personhood derives from the personhood of its members. Corporate persons must be aggregates of natural persons.
Under Common Law, persons include only individual human beings and combinations of them acting in concert,
but it provides a basis for inclusion of entities that are sufficiently like human beings in their behavior to be indistinguishable for legal purposes, such as aliens, androids, or genetically enhanced animals, which have interests, an ability to reason, and an ability to communicate. This would exclude, however, establishment of other things as persons, such as inanimate objects, which have no ability to represent themselves under due process. Inclusion of such inanimate objects as parties to civil due process, in effect making them "persons", has found its way into the U.S. legal system as in rem proceedings, unconstitutionally, through recent seizure/forfeiture statutes.
Although not a well-developed area, there is also a basis for excluding entities which, although they are born to human beings, lack attributes which would enable them to be functionally human, such as some minimal level of cognitive capacity, but such beings must be considered natural persons as the default unless proven otherwise through due process.
Citizenship is the attribute of persons who, as members of the polity, have certain privileges and duties in addition to those they have as persons. Citizens include those born on U.S. or State territory or naturalized according to law.
The classic definition of "natural rights" are "life, liberty, and property", but these need to be expanded somewhat. They are rights of "personhood", not "citizenship". These rights are not all equally basic, but form a hierarchy of derivation, with those listed later being generally derived from those listed earlier.
Personal Security (Life):
(1) Not to be killed.
(2) Not to be injured or abused.
(3) To move freely.
(4) To assemble peaceably.
(5) To keep and bear arms.
(6) To assemble in an independent well-disciplined
(7) To communicate with the world.
(8) To express or publish one's opinions or those of
(9) To practice one's religion.
(10) To be secure in one's person, house, papers,
vehicle, and effects
against unreasonable searches and seizures.
(11) To enjoy privacy in all matters in which the rights
of others are not
(12) To acquire, have and use the means necessary to
the above natural rights and pursue happiness, specifically including:
(1) A private residence, from which others may be
(2) Tools needed for one's livelihood.
(3) Personal property, which others may be denied the
(4) Arms suitable for personal and community defense.
Non-natural rights of personhood, created by social contract:
(1) To enter into contracts, and thereby acquire contractual
rights, to secure the means to exercise the above natural rights.[1,15]
(2) To enjoy equally the rights, privileges and protections
of personhood as
established by law.
(3) To petition an official for redress of grievances and
get action thereon
in accordance with law, subject to the resources available thereto.
(4) To petition a legislator and get consideration thereof,
resources available thereto.
(5) To petition a court for redress of grievances and get a
thereon, subject to resources available thereto.
(6) Not to have one's natural rights individually disabled
due process of law, which includes:
(a) In criminal prosecutions:
(1) Not to be charged for a major crime but by
indictment by a
Grand Jury, except while serving in the military, or while serving in
Militia during time of war or public danger.
(2) Not to be charged more than once for the same
(3) Not to be compelled to testify against oneself.
(4) Not to have excessive bail required.
(5) To be tried by an impartial jury from the state and
district in which
the events took place.
(6) To have a jury of at least six for a misdemeanor,
and at least twelve
for a felony.
(7) To a speedy trial.
(8) To a public trial.
(9) To have the assistance of counsel of one's choice.
(10) To be informed of the nature and cause of the
(11) To be confronted with the witnesses against one.
(12) To have compulsory process for obtaining favorable
(13) To have each charge proved beyond a reasonable
(14) To have a verdict by a unanimous vote of the jury,
which shall not be
held to account for its verdict.
(15) To have the jury decide on both the facts of the
case and the
constitutionality, jurisdiction, and applicability of the law.
(16) Upon conviction, to have each disablement
separately and explicitly
proven as justified and necessary based on the facts and verdict.
(17) To have a sentence which explicitly states all
disablements, and is
final in that once rendered no further disablements may be imposed for
(18) Not to have a cruel or unusual punishment inflicted
(b) In civil cases:
(1) To trial by an impartial jury from the state and
in which the events took place where the issue in question is either
natural right or property worth more than $20.
(2) In taking of one's property for public use, to be
(3) To have compulsory process for obtaining favorable
(c) In all cases:
(1) To have process only upon legal persons able to
themselves, either natural persons or corporate persons that are
a natural person as agent, and who are present, competent, and duly
except, in cases of disappearance or abandonment, after public notice
reasonable period of time.
(2) Not to be ordered to give testimony or produce
evidence beyond what is
necessary to the proper conduct of the process.
Non-natural rights or citizenship, created by social contract:
(1) To enjoy equally the rights and privileges of
as established by law.
(2) To vote in elections that are conducted fairly and
honestly, by secret
(3) To exercise general police powers to defend the
community and enforce
the laws, subject to legal orders of higher-ranking officials.
Certain of the above rights are restricted, or "disabled", for
minors, but the definition of who is a minor and the extent to which
these rights are disabled for minors, is limited to the jurisdiction
each government has general legislative authority, which for the U.S.
government, is "federal ground" (see below). Minors are the only
class of persons whose rights may be disabled without a need to justify
disablement as arising from the need to resolve a conflict with the
others, either through statute or due process. The disablement consists
assignment of a power to supervise the exercise of the rights under the
of "liberty" and "property" listed above to a guardian, by
default the parents, who acts as agent of the State for the purpose of
the minor. The disability is normally removed by statute providing for
when a certain age, such as 18, or condition, such as marriage, is
disabilities of minority can also be removed earlier by court order or,
statute allows, extended beyond the usual statutory expiration by court
cases of incompetence. The right to vote is not included among the
of minority, but is defined separately by law, so that removal of the
disabilities of minority does not in itself affect having the right to
Constitutional duties of persons under U.S. or
(1) To obey laws that are constitutional and applied
their proper jurisdiction and according to their intent.
(2) To comply with the terms of legal contracts to which
one is a party.
(3) To tell the truth under oath.
Constitutional duties of citizens under U.S. or
(1) To preserve, protect, and defend the Constitution.
(2) To help enforce laws and practices that are
constitutional and applied
within their proper jurisdiction and according to their intent, and to
those which are not.
(3) To serve on juries, and to render verdicts according
constitutionality, jurisdiction, and applicability of statute and
and the facts of the case.
Constitutional duties of able-bodied citizens under
U.S. or State
(1) To defend the U.S. or State, individually and through
service in the Militia.
(2) To keep and bear arms.
(3) To exercise general police powers to defend the
community and enforce
the laws, subject to legal orders of higher-ranking officials when
Powers delegated to U.S. (National) Government:
(1) Exclusive powers
(1) To lay and collect import duties.
(2) To pay the debts of the U.S. Government.
(3) To regulate commerce with foreign nations and Indian
(4) To regulate commerce among the States.
(5) To regulate immigration.
(6) To establish a uniform rule of naturalization.
(7) To establish uniform laws on bankruptcy throughout the
(8) To coin money and regulate its value and that of
foreign coin, and to
issue bills of credit.
(9) To provide for the punishment of counterfeiting the
current coin of the United States.
(10) To fix the standard of weights and measures.
(11) To provide and regulate postal services.
(12) To establish protection for intellectual property,
copyright, and trademark rights.
(13) To constitute lower national courts.
(14) To define and punish piracies and felonies committed
on the high seas,
and offenses against the laws of nations.
(15) To declare war, authorize warlike activities by other
than the armed
forces, and make rules concerning captures.
(16) To raise, support and regulate the armed forces.
(17) To govern what part of the Militia shall be employed
in the service of
the United States.
(18) To exercise general Legislation over federal
ground, which is
limited to federal territories and districts, land purchased from
the consent of their legislatures, U.S. flag vessels on the high seas,
grounds of U.S. embassies abroad.
(19) To guarantee a republican form of government to
(20) To enter into a treaty, alliance, or confederation
with a foreign
(21) To declare the punishment for treason.
(22) To prescribe the manner in which the acts, records, and judicial
proceedings of each state shall be proved to other states and what
should be done about them.
(23) To admit new states into the Union.
(24) To dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
(25) To make laws necessary and proper for executing the powers delegated to
the U.S. government.
(2) Pre-emptive but non-exclusive powers
(1) To provide for the common defense and general welfare.
(2) To provide for calling forth the Militia to execute
the laws, suppress
insurrections, and repel invasions.
(3) To provide for organizing, arming, and disciplining
(4) To prescribe the times, places and manner of holding
members of Congress, except the places for electing senators.
(5) To conduct a census every ten years.
(3) Non-pre-emptive non-exclusive powers
(1) To lay and collect excise taxes on commerce or income
(2) To borrow money.
Restrictions of the powers of the national Government:
(1) No exercise of powers not delegated to it by the
(2) No payment from the Treasury except under appropriations
made by law.
(3) Excises and duties must be uniform throughout the United
(4) Shall pass no tax or duty on articles exported from any
(5) No appointment of a senator or representative to any
civil office which
was created while he was a member of Congress or for which the amount
compensation was increased during that period.
(6) No preferences to the ports of one state over another in
(7) No titles of nobility shall be granted by the U.S.
permitted to be granted to government officials by foreign states.
(8) May not protect a State against domestic violence
without the request of
its legislature, unless it cannot be convened, in which case, without
consent of its executive.
(9) U.S. courts do not have jurisdiction over suits against
a state by
citizens of another state or foreign country.
Powers delegated to State Governments:
(1) Exclusive powers
(1) To appoint persons to fill vacancies in the U.S.
from that state and to hold special elections to replace them. State
may make temporary appointments if state legislature in recess and
reconvene, when they shall appoint a temporary replacement.
(2) To appoint the officers of its Militia.
(3) To conduct the training of its Militia.
(2) Non-exclusive powers
(1) To prescribe the times, places and manner of holding
elections for members of Congress.
Restrictions of the powers of the State Governments:
(1) State constitutions and laws may not conflict with any
provision of the U.S. Constitution or U.S. laws pursuant to it.
(2) May not exercise powers not delegated to the State
government by the
(3) May not make anything but gold or silver coin a tender
in payment of
(4) May not pass a law impairing the obligation of contracts.
(5) May not grant a title of nobility.
(6) May not collect imposts or duties on imports or exports
of Congress, except fees necessary to cover the costs of inspections
and paid to
the U.S. Treasury.
(7) May not lay a duty on tonnage.
(8) May not keep troops or ships of war in time of peace or
make war without
the consent of Congress, unless actually invaded and in imminent danger
does not admit of delay.
(9) May not make a compact or agreement with another state
of the U.S. or
with a foreign state without the consent of Congress.
Duties of the State Governments:
(1) Must provide a republican form of government to
(2) Must conduct honest and fair elections, by secret
(3) Must give full faith and credit to the public acts,
judicial proceedings of every other state, and recognize the privileges
immunities granted thereby.
(4) Must extradict a person charged with a crime in another
state to that
(5) Must organize and train their militias.
Restrictions of the powers of all Governments:
(1) Shall not disable any natural or constitutional right
without due process of law, and then only to the extent necessary to
infringing the rights of others.
(2) Shall not deny any person within its jurisdiction equal
(3) Shall not suspend habeas corpus, except in case of
rebellion of invasion
and the public safety may require it.
(4) Shall not issue a search warrant but on probably cause,
supported by an
oath or affirmation, and particularly describing the place to be
the person or things to be seized.
(5) Shall not arrest members of Congress, except for
treason, felony, or
breach of the peace, while their house is in session.
(6) Shall not question a member of Congress on anything he
says during a
speech or debate in his house.
(7) Shall not pass any bill of attainder or ex post facto
(8) Shall allow no slavery or involuntary servitude except
as punishment for
a crime of which the party shall have been duly convicted.
(9) Shall not deny or abridge the right to vote to any
person on account of
race, color, previous condition of servitude, sex, for failure to pay
or on account of age if older than 18.
(10) Shall not exercise any power in an unreasonable manner or for other than a legitimate public purpose, as partially indicated in the Preamble. (No power is "plenary", and discretion can be abused.)
Some arguably needed national powers:
(1) To regulate the manufacture, distribution, operation,
disposition of aircraft and spacecraft, the regulation of their crews,
definition and punishment of crimes committed on U.S. registered
spacecraft or on aircraft or spacecraft operating in U.S. airspace.
(2) To regulate cabled or wireless communications beyond a
distance of 1
(3) To regulate the production, distribution, and use of
nuclear energy, and
electric energy transmitted more than 1 kilometer.
(4) To limit tort liability on commerce and commercial
articles subject to
U.S. regulation of their manufacture.
(5) To pre-emptively pass and enforce laws needed to
conserve wildlife and
natural resources, to protect the climate and natural environment, to
excess of population, and to regulate public health and workplace
(6) To provide for the punishment of abuses of power by any
or employee of, or contractor for, any institution of government, and
specifically any violations of the Constitution and laws pursuant
(7) To provide for the punishment of abuses of the natural
rights of persons
by other persons, in the event that those abuses, if the occurred on
ground, are not prosecuted by a State government.
(8) To define "due process" to include the elements given
which are not now explicit in the U.S. Constitution.
(9) To define the arms to which persons have a right to keep
and bear as
including "all those weapons which may be carried by one person and
might be useful or necessary to defend oneself or the community, except
of mass destruction such as bombs, heavy missiles or artillery, or
chemical, or nuclear agents which may cause lasting injury or death."
(10) To make explicit that only natural persons or corporate
composed of natural persons may be the subject of due process in any
 This is established in Common Law at the time the U.S.
adopted, but is not explicit in the U.S. Constitution.
 Originally, "commerce" meant only transfers of goods or
services for a valuable consideration, so that "interstate" commerce
would not include interstate migration, carrying across a state border
own possessions that one intends to keep, the sending across a state
border of a
gift or inheritance, nor include articles which had not yet crossed a
border, or articles which had "come to rest" with the completion of
the transfer. It would not include manufacturing, local sales, or
are "part of an aggregate" of interstate commerce, or things that
might "affect" interstate commerce. Note also that the power to
regulate does not include the power to criminally prosecute violations
regulations, but only to seize property through civil process.
 These are the only provisions that allow federal criminal
jurisdiction outside federal ground.
 These powers, if not exercised by the State, revert to the
 This provision would seem to forbid taxes on interstate
export to another state of the U.S. is included, leaving only
commerce or commerce on federal ground subject to excise taxes or
although interstate commerce can otherwise be regulated.
 This means obeying constitutional laws and practices, and
 This is not clearly stated, but implied.
 The power to tax is not the power to regulate or license,
versa. That is why the powers to tax and to regulate are separately
With one exception, which is never used (in Art. 1 Sec. 10), no
made for the charging of fees to cover the costs of regulation, even
has become a common practice, in violation of the Constitution.
 This use of the word "Legislation" is a term of art which
grants general powers within its jurisdiction, including powers of
civil law that a State might exercise within its jurisdiction, but
State in that a State would be restricted by a state constitution
only certain powers. This is a major gap in the Constitution. Although
applies only to federal ground, it also does not make clear what are
limitations on such legislative power, other than the natural and
rights of persons, and so has been interpreted to allow anything that
violate those rights. There is a need for a federal sub-constitution,
a typical state constitution, that applies to federal ground.
 The wording suggests that the States have the power, but
Congress to pre-empt it.
 But this implies that if the State fails to appoint such
local militias are left to elect their own, which was the established
practice at the time the U.S. Constitution was adopted. But "according
the discipline prescribed by Congress". This means Congress can direct,
not forbid it, and implies that, in the absence of any training
conducted by the
State, local militias are left to organize and train themselves, which
established Common Law practice established at the time the U.S.
 The term used is "form" of government, but the Framers
to have meant substance as well, and that is reasonably implied.
 The original term was "well-regulated", but this is what
meant. Militias were originally local and independent of official
it was intended that although they be subject to official authority
into service by such authority, that they also be able to convene and
independently when not.
 "Vehicle" was not explicitly included, but implied as an
 This is needed to allow persons not only to have rights
but the means
to exercise them, and also to acquire those means if they do not
them, without which the right would be unduly burdened. However, beyond
right, the community has the general power to restrict contracts for
public policy and not just to avoid conflicts with the rights of
others, so that
there is not a general "right" of contract, but a "default
privilege" of doing so, subject to law, for contracts that do not
securing the means to exercise their natural rights.
 This is worded as "to execute the Laws of the Union",
allowing States to also call forth their Militias to execute their own
 The exercise of general police powers is both a right of
a duty of able-bodied ones. All citizens are policemen, although
citizens may be outranked by professional police officers when such
present in a law enforcement situation.
 Likewise, the keeping and bearing of arms, while a right
of persons, is
also a duty of able-bodied citizens.
Note that there is no right to marry or bear children included among any of the rights listed above. It is not a "natural" right, because natural rights are only rights of individuals, and exercise of a "right" to marry, without the consent of the other, would be an assault. Since consent is required, it is a matter of contract, and contractual rights are created by the community, even if it is a "community" of only two persons. Since the community is normally a larger polity, and since all legal contracts are agreements not only between the contracting parties, but also with the entire community, therefore the community has the power to regulate marriage and childbirth, and has exercised that power since time immemorial, for the benefit of the community.
Note also that the fundamental unit of the social contract is the local community, ward, or village. These may aggregate into a larger "state" or "federal union", but the basis is agreement among those who are in direct contact with one another.
It is sometimes thought that "the Constitution" consists only of the written document. This is not so. The title "The Constitution of the United States" was added after the document was adopted, but "constitution" meant the "basic legal order", and the Constitution consists of both the written document and the common law at the time the document was adopted, which is here referred to as the Common Law in caps. Now, the written document does supersede the Common Law where they might be in conflict, but it does not replace it, and courts must refer to the Common Law for guidance where the written document is silent or ambiguous.
In addition to the written document and the Common Law, the Constitution also includes Treaties, which, although they are valid only insofar as they are not in conflict with the written Constitution, are superior to both the Common Law and to State constitutions and laws, to the extent that those might be in conflict with the Treaties. Thus, some of the Treaties that have been adopted extend and clarify some of the rights, powers, and duties provided in the written Constitution. For example, that is how "federal ground" is extended to include coastal waters out to a certain distance from shore, and the grounds of U.S. embassies abroad, and how the rights of the people are amplified by the Charter of the United Nations and by various bilateral and multilateral Treaties that extend civil and commercial rights to U.S. citizens abroad.
The following diagrams can help clarify the relationship among the various elements of law in the U.S. legal system. Each element is superior to the one below it, although state constitutions are derived from their people, not from the U.S. Constitution. Although not shown, each element also includes the body of writings and recorded speeches of the legislators, diplomats, and judges who wrote the constitutions, treaties, laws, and court decisions, which clarify their intent, and which must be accepted as the basis of interpreting the words as originally meant and understood when there is confusion or dispute over their meaning.
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