Friday, September 6, 2013
The Constitution of California is very clear on some basic rights of ‘persons’ – obviously including non-citizens too. The right to life, liberty and property is one such fundamental right that is guaranteed to all persons by the people of California, and I did not find the term people defined in the Constitution but I don’t think it could be limited to citizens only. Then it seems to be a settled law in the United States, or at least in several states, that professional license is itself a kind of property right. For example, Nevada Supreme Court, categorically holding that professional license is property, had this to say: “That a professional license is property and is protected by the Constitution is recognized by both Nevada law, State ex rel. Kassabian v. State Bd. of Medical Examiners, 68 Nev. 455, 235 P.2d 327, 331 (1951), and by federal law, Schware v. Bd. of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957). The Board could not, consistently with the due process clause, deprive Mishler of his license.” [896 F.2d 408, 58 USLW 2514, Alan J. MISHLER, M.D., Plaintiff-Appellant v. NEVADA STATE BOARD OF MEDICAL EXAMINERS; Robert C. Clift, M.D., et al., Defendants-Appellees, para 7]. In this background, the constitutional right granted to persons to own property is remarkable as Section 20 of Article 1 [Declaration of Rights] clearly says: “Noncitizens have the same property rights as citizens.” Further, Section 1 of the same Article 1 categorically declares that – “SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy” (emphasis mine). I am sure nobody doubts that a professional license is a means to acquire and possess property, even if one may doubt if it is property by itself. Also, the unequivocal declaration that “SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…” in Article 1 points to the inalienable right to life, and life does not mean mere animal existence. The right to livelihood is an indispensable part of the right to life and a person cannot be deprived of such right by any procrastinating methods and practices of law. The Constitution of California is neither limited by nor is in contradiction to the federal constitution of US which also grants several such rights to all persons – not just to citizens only. A broader and liberal discussion with such constitutional perspectives would do a lot more justice to the cause the Supreme Court is seized of.* * * * *
§ Lawyer practicing in High Court of Andhra Pradesh, Hyderabad, A.P., India; now on temporary visit to the US; C/o Mr. Paul Gilbert, Board Member (Mobile: 6502306240), ACLU-Mid Peninsula Unit California, at Mountain View - 94043 (CA).
Posted by I.M.Sharma at 12:57 AM