“Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature.”
There were some posts made on here the other day that caused me some concern. Having a bit of knowledge about the law and the Constitution I said to myself “this isn’t right.” The conversation went like this:
What possible legal reason could the police have to ask you to leave a neighborhood? Were you canvassing in Nazi Germany or the old Soviet Union by chance?
Dave., majority of cities and municipalities require a permit for solicitation. If he (OP) had none the police would in fact ask him to pack it up.
And some of these regulations have stipulations on them. Like I believe it was either Moore or Norman Oklahoma that would let you knock with a permit. But only 1 day out of a month and that is only on the weekend.[/quote]
My response was this:
As I thought about this exchange I decided I would read one of those ordinances. Since it had already been mentioned I choose the Norman, Oklahoma ordinance. Here are a few key points in the ordinance:
[quote]Sec. 13-2803. - Applicability of article; permit required.
It shall be unlawful for any person to engage in outdoor selling on private property in the nature of peddling street vending or soliciting, as defined herein, within the corporate limits of the City of Norman without first obtaining a permit as provided herein.
Sec. 13-2809. - Fees.
The application fee to be paid to the City Clerk upon submission of the application for a permit shall be as follows:
(1) A thirty-day permit for soliciting or peddling shall be one hundred dollars ($100.00). Each additional seller, operating under one (1) thirty-day permit, shall pay a fee of fifty dollars ($50.00).
(2) A sixty-day permit for soliciting or peddling shall be two hundred dollars ($200.00). Each additional seller, operating under one (1) sixty-day permit, shall pay a fee of one hundred dollars ($100.00).
(3) A thirty-day permit for outdoor vending shall be five hundred dollars ($500.00).
Sec. 13-2810. - Enforcement.
Any person violating any provision of this article shall, upon conviction thereof, be punished in accordance with Section 13-112 of the Code of the City of Norman.
Sec. 13-112. - Penalties.
(a) Any person, firm, or corporation convicted of violating any provision of this chapter, or of failing to act or comply with the provisions of this chapter, shall be punished by a fine of not less than fifty dollars ($50.00) nor more than seven hundred fifty dollars ($750.00) or by imprisonment not to exceed sixty (60) days, or by both such fine and imprisonment.
(b) Each day that a violation or failure to comply exists shall constitute a separate and distinct offense, and any one (1) or more of such offenses may be set out in any complaint or information filed.[/quote]
What this statute essentially says is that a person cannot solicit door to door without first getting permission from the governing authority. To get permission, i.e. a permit, one has to fill out an application and pay a “fee” which is nothing more than a “tax” on the activity. If one fails to comply, i.e. get a permit and pay the “tax,” one can be prosecuted criminally. If convicted, one can be forced to pay a fine, i.e. a “noncompliance tax,” and sit in jail.
As Americans, we are familiar with these words:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
These come from the Declaration of Independence. In reading this one has to ask what exactly is an unalienable Right and what exactly is encompassed in Life, Liberty and the pursuit of Happiness. If we do not know the answer to these questions how can we claim to be free?
One only has a right if they know they have the right AND they assert the right. The government can ignore those rights if you are ignorant of them. As stated in US. vs.Johnson (76 Fed Supp. 538):
The privilege against self-incrimination is a right guaranteed by the 5th Amendment to the U.S. Constitution, which reads in part “nor shall be compelled in any criminal case to be a witness against himself, . . .”
You are likely familiar with the phrase “I plead the 5th.” In order to “plead the 5th,” one has to a) know about the 5th, and b) assert the right. If you do not know about the right, you cannot assert the right. If you know about the right, but do not assert the right, no one will do it for you. They are only rights if you assert them.
What exactly are our rights? Can a government require us to get a permit to practice our vocation? Can they throw us in jail if we refuse to get a permit? If you don’t know the answer to these questions then you have failed the first part of the test. If you do not know you have a right, you cannot assert the right.
How does one discover their rights? Does one have to be a lawyer to know their rights? Not necessarily, but it does help. All the information to discover your rights is readily available on the internet. However, it helps to know what to search for. It’s sort of like when you were a kid and you asked someone how to spell a word. The usually response is “go look it up in a dictionary.” Any one who has ever used a dictionary knows that if you don’t know how to spell a word you are going to have a hard time finding it in a dictionary.
The courts are the ones who are charged with determining whether a particular statute or ordinance is unconstitutional. At least that is supposed to be their function. That being the case then the obvious place to look for answers would be case law.
I will share what I have found in my research. I believe that after you read the decisions of the courts you will know your rights.
The first case is BUTCHERS’ UNION CO. V. CRESCENT CITY CO., 111 U. S. 746 (1884).
As in our intercourse with our fellow men, certain principles of morality are assumed to exist without which society would be impossible, so certain inherent rights lie at the foundation of all action and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: “We hold these truths to be self-evident” – that is, so plain that their truth is recognized upon their mere statement – “that all men are endowed” – not by edicts of emperors, or decrees of Parliament, or acts of Congress, but "by their Creator with certain inalienable rights" – that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime – “and that among these are life, liberty, and the pursuit of happiness, and to secure these” – not grant them, but secure them – “governments are instituted among men, deriving their just powers from the consent of the governed.”
**Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.
The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.
It has been well said that “the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper**.” BUTCHERS’ UNION CO., 111 U. S. 746, 756-7.
This decision defined an inalienable right as one “which cannot be bartered away, or given away, or taken away, except in punishment of crime.” It also says that governments are instituted to secure these rights, NOT grant them. It also says that the inalienable right of pursuit of happiness is “the right to pursue any lawful business or vocation.” The common business and callings of life, the ordinary trades and pursuits . . . must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance . . . is a distinguishing privilege of citizens of the United States.” This case, in essence, establishes, as a right, pursuing ones occupation. This is an inalienable right protected by the Constitution.
“The right to follow any of the common occupations of life is an inalienable right.” Butchers’ Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U.S. 746 , at page 762
The ‘liberty’ mentioned in that amendment (14th) means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. ALLGEYER v. STATE OF LOUISIANA, 165 U.S. 578, 589 (1897).
We have in front of us three separate US Supreme Court cases stating that the right to pursue any lawful vocation is an inalienable right. What does this do for our cause? Let’s dig further into case law.
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436, 491.
Miranda vs. Arizona is a case you are familiar with whether you realize it or not. This is the case where we get the well known “You have the right to remain silent” phrase read to criminals after they have been arrested. These are known as “Miranda rights.”
“The claim and exercise of a constitutional Right cannot be converted into a crime.” Miller vs. U.S., 230 F. 486, 489.
“There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights.” Snerer vs. Cullen, 481 F. 946.
Here we have three more cases which state that when we have rights secured by the Constitution, government cannot legislate them away from us. They cannot convert them into a crime, and no sanction or penalty can be imposed on someone for exercising a constitutional right. In other words, you cannot be required to get a permit or license to do something that is already within your right to do. This would also prohibit placing a “tax” upon the right.
In JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943), the Supreme Court addressed just such an ordinance as the Norman, Oklahoma ordinance. This case, and the others heard with it, concerned Jehovah’s Witnesses being prosecuted for selling their books door to door without first obtaining a license from the city. The ordinance at issue in this case read, in part, as follows:
'That all persons canvassing for or soliciting within said Borough, orders for goods, paintings, pictures, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the Burgess a license to transact said business and shall pay to the Treasurer of said Borough therefore the following sums according to the time for which said license shall be granted.
‘For one day $1.50, for one week seven dollars ($7.00), for two weeks twelve dollars ($12.00), for three weeks twenty dollars ($20.00), provided that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants or dealers doing business in said Borough of Jeannette.’ 319 U.S. 105, 106
Take the time and compare the language of this ordinance with the language of the Norman, Oklahoma ordinance I posted earlier. You will see they are the same type of ordinance.
The argument in this case was based upon the 1st Amendment rights of freedom of speech and freedom of religion. That distinguishing point is irrelevant as those are both rights protected by the Constitution, just as the right to apply your vocation, which we have already established.
“The cases present a single issue-the constitutionality of an ordinance which as construed and applied requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities.” 319 U.S. 105, 110.
It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44 , 45 S., 54 S.Ct. 599, 601, and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. 319 U.S. 105, 112.
A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce ( McGoldrick v. Berwind-White Co., 309 U.S. 33 , 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876). 319 U.S. 105, 113.
In that case, as in the present ones, we have something very different from a registration system under which those going from house to house are required to give their names, addresses and other marks of identification to the authorities. In all of these cases the issuance of the permit or license is dependent on the payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues. It is not a nominal fee [319 U.S. 105, 114] imposed as a regulatory measure to defray the expenses of policing the activities in question. It is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax. As stated by the Supreme Court of Illinois in a case involving this same sect and an ordinance similar to the present one, a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’ Blue Island v. Kozul, 379 Ill. 511, 519, 41 N.E.2d 515, 519. 319 U.S. 105, 113-4.
It is claimed, however, that the ultimate question in determining the constitutionality of this license tax is whether the state has given something for which it can ask a return. . . . This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution. 319 U.S. 105, 115.
The conclusion of the matter is this. Solicitation ordinances, such as the Norman, Oklahoma ordinance, are unconstitutional. You have the right to work and any governmental regulation, tax or other requirement placed on that right is unconstitutional. I stated that you had to know your rights before you could assert your rights. You now know your right. It is up to you to assert it.
If you recall the first case I mentioned, U.S. vs. Johnson, it told you how you had to assert your rights.
“He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus."
In order to assert the right you would have to a) ignore the ordinance, and b) assert your right when called on it. This would likely mean being arrested. However, once arrested, you have all the case law you need to prevail. Once you prevail, you will not have to worry about it any more. You have taken the first step in reclaiming your freedoms. Freedom is never won without fighting and sacrifice.
Your other alternative is to just go on with your life as it is. You don’t have to stir the pot. You can pay the unconstitutional tax if you like. You are at liberty to do that also. However, at some point citizens have to stand up and say “enough!”