Waiving A Right

People waive rights all the time. That, IMO, is one of the stupidest things they can do. A lot of folks who are arrested are totally clueless when it comes to their position. After all, they are holding bargaining chips, yet they toss them away for nothing or nearly nothing in return. Also, people sign contracts of adhesion (e. g. they don't bargain at all, for price, terms or anything) and then are too inert to fight said contracts if there is a problem with them. Don't underestimate the twin powers of inertia and stupidity.

Pretty much anything can be waived (so far as I am aware), if the person waiving the right is proven to be competent. This means, over 18 at the time of waiver, not insane, not under duress, etc. People also engage in forebearance, in that they don't do something that they have the right to do, since it doesn't fit in with societal norms and mores. For example, there is a right to wear whatever you want within the bounds of the community standards of decency (e. g. cover your private parts), yet people do not wear leisure suits. They, in effect, "waive" the right to wear what they please by shunning the product. Same with listening to polka music or flossing with cat fur.

Okay, I'm being flip, but the truth is that, in general, waiver is encountered in arrest and trial situations, where people toss away their rights to things like trial by jury, counsel and against unreasonable searches and seizures. And it's dumb. I know you didn't ask about that, but it is; it's the height of foolishness to toss away rights unless you get a lot in return. They have a value in the arrest/trial/conviction marketplace, and all too often they are handed over for free.

<rant over, soapbox put away for later>

Re: Waiving A Right


We don't have "constitutional rights" in any literal sense. Therefore, when people invoke their constitutional rights . . . they have been indoctrinated (duped) into believing that they don't have any rights unless those rights have been conferred by the Constitution. This is NONSENSE! The Constitution does not grant or confer rights. It secures rights. People live in this country, yet they have little knowledge concerning the true nature of their rights.

For instance, some people will proclaim, "I have a First Amendment right to freedom of speech." However, the First Amendment does NOT create the right. Instead, it SECURES the right they already had (an inalienable liberty interest) by placing a limitation on Congress:

"Congress shall make no law . . . abridging the freedom of speech. . . ."

The people demanded a Bill of Rights--not to confer rights--but to SECURE the rights they already had from governmental infringement. Placing limits on government was a means of preventing our newly formed government from becoming tyrannical and oppressive. It was a good theory . . . but it hasn't worked in practice because the government has proved itself quite capable of finding countless ways to circumvent the limits placed on governmental power.




Inalienable rights are rights that cannot be alienated. The word "alienate" means to sell, convey, or transfer. For example, if you own a piece of land, you may voluntarily sell, convey, or transfer that land to anyone you want to. If you sell your land and convey title to the tranferee, the land is no longer yours--the land has been alienated. However, you were born with the inalienable rights to life, liberty, and the pursuit of happiness. These rights cannot be sold, conveyed, or transferred to a governing power.

It is this concept of the inalienable rights to life, liberty, and pursuit of happiness that makes some people oppose the military draft. Conscription is a form of compulsory slavery wherein the government requires (under the penalty of law) that you surrender (transfer) your life, liberty, and happiness to the government's complete control for the benefit of the political state whether you believe in the cause or not.

In our modern society, where pretty much every aspect of your life and liberty is regulated to the nth degree by every level of government, the concept of inalienable rights is merely that: a concept. Our government has effectively taken all of our rights away from us and then doled some of them back to us in the form of privileges and licenses that can be revoked on whatever terms the government establishes.

(E.g., You don't even have the freedom to drive down the street without wearing a seatbelt because you risk a REMEDIAL sanction imposed by the state--to remedy your unsafe conduct--in the form of a CIVIL action against you--thus, you don't have the due process protections afforded in a CRIMINAL action--that results in a substantial FINE.)





The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment does not convey any rights. It assumes that "we the people" already had the right to be secure in our persons, houses, papers, and effects. The Fourth Amendment placed a limitation on government: The government SHALL NOT violate the security of the people by engaging in "unreasonable" searches and seizures. Accordingly, if the government deems the search or seizure to be reasonable . . . well, then the government can do what it wants.

The warrant requirement of the Fourth Amendment has been watered down. The government recognizes many exceptions to the warrant requirement. Therefore, writing the warrant requirement into the Constitution does not provide the security that it should. The courts consider many warrantless searches and seizures to be reasonable. The courts do not require a police officer to have "probable cause" to stop your vehicle. All an officer needs is a "reasonable suspicion" to conduct an "investigatory stop" of your vehicle.

Think about the words of Chief Justice Marshall written 175 years ago:

Is the proposition to be maintained, that the constitution meant to prohibit names and not things? That a very important act, big with great and ruinous mischief, which is expressly forbidden by words most appropriate for its description; may be performed by the substitution of a name? That the constitution, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so . . .

Craig v. State of Missouri, 29 U.S. 410 (1830).
http://laws.findlaw.com/us/29/410.html

Marshall is probably looking down on us from heaven and rolling his eyes in disgust. Renaming "old forbidden things" to make them permissible (or at least more palatable--easier for the gullible to swallow) has become common. Government evades the constitution through watered down concepts of search and seizure; through the tranformation of "punitive" sanctions into "remedial" sanctions; through civil vs. criminal vs. military (national security) distinctions; etc.





Again, the right against unreasonable searches and seizures is not a right created by the Fourth Amendment--it is a right that the people already had and it was SECURED by the Fourth Amendment--and that right shall NOT BE VIOLATED.

Consent is a recognized exception to the warrant requirement. Unlike the right against self-incrimination secured by the Fifth Amendment (Miranda: you have ther right to remain silent....), the person consenting to a search need not be told that they have the right not to consent and to require the officer to obtain a warrant.




All rights that are ostensibly protected or secured by the Constitution may be waived--intelligently or unintelligently (as Jespah said, people are STUPID). On the most part, the police may trick you into waiving most of your rights secured by the Constitution except maybe the right to assistance of counsel protected by the Sixth Amendment. But even then, YOU MUST TAKE affirmative action to invoke your right and specifically (unambiguously and unequivocally) ASK FOR A LAWYER. Merely saying, "I think I want a lawyer," isn't enough to invoke the right to counsel.

In Edwards v. Arizona , 451 U.S. 477, 484-85 (1981), the Supreme Court held that law enforcement officers must immediately cease questioning of a suspect who clearly asserts his right to have counsel present during custodial interrogation.

In Davis v. United States, 114 S. Ct. 2350 (1994), the Supreme Court clarified the rule of law: "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning."

Debra Law-
Thank you for your detailed and thoughtful reply.

I still think -- maybe mistakenly -- that some rights are inalienable or maybe better put can not be sold or traded away. I think the right to vote is such a right. I think that there are others though I don't have a list of them or what the common thread they share that results in their common treatment.

On second reading, I think that you have shown the common thread. You say,

"Consent is a recognized exception to the warrant requirement. Unlike the right against self-incrimination secured by the Fifth Amendment (Miranda: you have ther right to remain silent....), the person consenting to a search need not be told that they have the right not to consent and to require the officer to obtain a warrant."

So, I guess the answer is that those rights secured by the 4th Amendment for which a warrant is otherwise required, can be waived through consent and I guess the others can't be waived by the citizen though the government has found ways to encroach upon them.

All rights that are ostensibly protected or secured by the Constitution may be waived--intelligently or unintelligently (as Jespah said, people are STUPID).

Also I think a substantial limitation on an individual's effective ability to assert his (or her) constitutional rights is in the workplace.

I understand that many employers have a rule, that if an employee refuses to answer questions from law enforcement and/or a governmental agency investigating a matter within its jurisdiction, that refusal is grounds for termination of employment.