13 Cal Jur 3d

Constitution Right of Privacy Property Rights Right to Travel Liberty 1. Constitution

The fundamental purpose of a constitution are... ...protect the private rights of individuals. 13 Cal Jur 3d 1, p. 20 ...a constitution is a written instrument enacted by the direct action of the people(2), establishing the form of government and defining the powers of the several departments, thus creating a fundamental law that is absolute and unalterable except by the authority from which it emanated(3). The California Constitution is a solemn compact, deliberately and freely entered into by a free people among themselves, by which they limit the powers of their agents,... ...limiting, classifying, and directing the powers of the different department of the government.(4) The Code of Civil Procedure declares that the organic law is the constitution of government and is altogether written. Other written laws are denominate statutes. The written law of this state is contained in the constitution and the statutes,... Ibid. 1, p. 21 ...federal and state constitutions serve to limit as well as define the powers of government(9). Ibid 2, p. 22 ...the California Constitution provides that government is instituted for the protection, security, and benefit of the people(14). Ibid. 2, p. 23 When the United States Constitution and first state constitutions were framed, it was thought that a constitution merely outlined a government, provided for certain departments and offices and defined their functions, secured some absolute and inalienable rights to the citizens, and left all mattes of administration and policy to the departments it created(26).

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Save as to the assurances of individual rights against the government, the direct operation of the constitution was on the government only. And such assurance were themselves in fact but limitations on the governmental powers. Ibid. 4, p. 25 The California Constitution provides that all political powers is inherent in the people and that government is instituted for the protection, security and benefit of the people(76). The Declaration of Rights differs from the great English charters in that it is not an assurance to the individual from the sovereign, but is a command and a limitation of power on state officials by the people who created the formal government. And it must be remembered that in construing the declaration of rights there is no presumption that the government or its officers will act justly. These sections imply possible oppression and are designed to enable the victim to assert his or her rights, even as against the government(78). Ibid. 231, p. 506 ... the rights guaranteed by the California Constitution are not dependant on those guaranteed by the United States Constitution;(18)... Ibid. 231, p. 510

- 237. Right of Privacy The state constitution provides that all persons have the right to pursue and obtain privacy(14). The California constitutional guarantees is motivated by concern over contemporary societys accelerating encroachment on personal freedom and security caused by increased surveillance and data collection(18). It exists to prevent governmental snooping, to inhibit the overly broad collection and retention of unnecessary personal information(17)... Ibid. p. 527 ...the right of privacy had been recognized as a fundamental right in this state. ...the United States Supreme Court recognizes that a right of personal privacy, or a guaranty of certain areas or zones of privacy, does not exist under the Constitution, and that the roots of that right may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment,... Ibid. p. 528 ...right of privacy guaranteed by the state constitution is much broader than the privacy guaranteed by the federal Constitution(23).

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...it is the right of a person to lead his or her private life without intrusion the government. Thus, prior to the adoption of the state constitutional provision, it was said that whenever and individual may harbor a reasonable expectation of privacy, he or she is entitled to be free from unreasonable governmental intrusion(25). Ibid. p. 529 Only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in the guaranty of the right of personal privacy;... Ibid. p. 534 ...any such intervention be justified by a compelling interest(35). And such infringement must be made by the least restrictive alterative necessary to facilitate the compelling state interest(36). Ibid. p. 536 The right of privacy provided by the state constitution(42) does not apply to corporations(43). Ibid. p. 537

- 238. Right to Travel The nature of the federal union and of constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations that unreasonably burden or restrict this movement(42). And the constitutional right to travel between the states implies a correlative constitutional right to travel within a state(46). Ibid. p. 538

- 239. Property Rights This constitutional provision refers to the right to acquire and possess the absolute and unqualified title to every species of property recognized by law, with all rights incidental thereto(55). Ibid. p. 540 The right of protecting property is not the simple right to protection by individual physical force, but is the right to protect property by the law of the land and the force of the body politic(57). Both state(58) and federal(59) constitutions prohibit the state from depriving a person of property without due process of law(60). Thus, before a person may be deprived of any significant interest, he or she must be afforded notice and an opportunity for a hearing(62). Ibid. pgs. 541 - 542

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Both the state(66) and federal(67) constitutions also prohibit the taking of private property for public use without just compensation(68). Ibid. p. 543

B. LIBERTY [243 - 245]

Summary The right to liberty consists of the right to be free from arbitrary personal restraint as well as the right to do such acts as a person may judge best for his interests, and the right of a person to be free in the enjoyment of all his faculties (243). Ibid. p. 552

- 243. In general Personal liberty is a fundamental interest, second only to life itself, protected under both the California and the United States Constitutions(17). The therm liberty as used in the state and federal constitutions(18) consists partially of the right to be free from arbitrary personal restraint(19). For example, the right of a citizen to drive on a public street with freedom from police interference, unless he or she is engaged in suspicious conduct associate in some manner with criminality, is a fundamental constitutional right(20). But liberty means much more than freedom from restraint. It means not merely the to go where one chooses, but also to acts as one may judge best for his or her interests, not inconsistent with the rights of others. It embraces the right of the individual to be free to enjoyment of all his or her faculties; to be free to use them in all lawful ways; to follow such pursuits as are best adapted to his or her faculties and will give him or her the greatest enjoyment; to live and work where he or she will; to earn a livelihood by any lawful calling, and for that purpose to enter into any lawful contract. Constitutional protected liberty includes the right to acquire useful knowledge,... ...and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free people(22). Other rights, peripheral to those in the Bill of Rights of the federal Constitution, but protected by various interpretations of the general provisions of the Bill of Rights, such as the right of privacy(23), the right to travel(24), and freedom of association(25), may also find part of their foundation in the basic right of liberty(26). Ibid. pgs 553 - 554 ______________________________________________________________________________ ARBITRARY. What depends on the will of the judge, not regulated or established by law. Bacon (Aphor. 8) says, Optima lex quae minimum relinquit arbitrio judicis et (Aph. 46) optimus judex, qui mi nimum sibi 2. In all well adjusted systems of law every thing is regulated, and nothing arbitrary can be allowed; but there is a discretion which is sometimes allowed by law which leaves the judge free to act as he pleases to a certain extent. See Discretion Bouviers Law Dictionary, 1856 Page 4 of 5

ARBITRARY PUNISHMENTS, practice. Those punishments which are left to the decision of the judge, in distinction from those which are defined by statute. Bouviers law Dictionary, 1856 ARBITER. One who, decides without any control. A judge with the most extensive arbitrary powers; an arbitrator. Bouviers Law Dictionary, 1856

DUE PROCESS
Due process of law" means, broadly speaking, that before property of a person may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given opportunity to be heard. People v. One 1950 Mercury Sedan, Engine No. 50LA40896M, 1950 License No. 29B9130 (App. 2 Dist. 1953) 116 Cal.App.2d 746, 254 P.2d 666. "Due process of law" does not necessarily mean that a person is entitled to a trial in a court before he may be deprived of what may be equivalent to property rights, but does mean that an orderly proceeding, adapted to the nature of the case, shall be accorded to the owner of property, in which he may be heard, and where he may defend, enforce, and protect his personal rights. Gregory v. Hecke (App. 3 Dist. 1925) 73 Cal.App. 268, 238 P. 787. "Due process of law" is the exact equivalent of the "law of the land" as used in the Magna Charta, and, broadly speaking, means that before a man's life, liberty, or property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard in his own defense, the notice to be a real and reasonable one, and the hearing such as ordinarily or at least reasonably is given in similar cases. Beck v. Ransome-Crummey Co. (App. 1919) 42 Cal.App. 674, 184 P. 431. Substantive due process prohibits governmental interference with person's fundamental right to life, liberty, or property by unreasonable or arbitrary legislation. In re Marilyn H. (1993) 19 Cal.Rptr.2d 544, 5 Cal.4th 295, 851 P.2d 826. In passing curative statutes, legislature cannot rise above federal and state constitutional requirements that property cannot be taken from individual owner without due process of law. Litchfield v. Marin County (App. 1955) 130 Cal.App.2d 806, 280 P.2d 117. Section 353, Evid Code is subject to the constitutional requirement that a judgement must be reversed if an error has resulted in a denial of due process of law. People v. Matteson, 61 C2d. 466 (1968) It's actually a 1964 case Page 5 of 5