We better get on right away
Well you get on your feet
And into the street
Singing power to the people
Power to the people
“Power to the People” by John Lennon/Plastic Ono Band (1971)
 
The preamble to the U.S. Constitution states majestically that one of the guiding principles of the Constitution is that to “secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  Our Forefathers succinctly identified the purpose for lawful government: "That to secure these rights (of Life, Liberty, and the Pursuit of Happiness), Governments are instituted among Men..." Declaration of Independence.  The United States set forth in the Declaration of Independence and the Constitution that the people instituted this government to secure the rights of the people.  In other words, our government was delegated certain powers to secure rights which the people possessed.  Briscoe v. President of the Bank of Ky., 36 U.S. (11 Pet.) 257, 317 (1837) ("The federal government is one of delegated powers. All powers not delegated to it, or inhibited to the states, are reserved to the states, or to the people.")  The people delegate their power to the government.  The government cannot delegate any power to the people.  JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 110 (abridged ed. 1987) (general government acts at the consent of the people).
 
“The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.”  United States v. Cruikshank, 92 U.S. 542, 551 (1875).  As put by Abraham Lincoln in one of his political debates with Douglas in 1858 (p. 71): “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” 
 
It was not until 1868 with the passage the Fourteenth Amendment of the U.S. Constitution that how the blessing of liberty was to be secured was described.  Under the Fourteenth Amendment, the due process clause of the Amendment states that “no State [shall] deprive any person of life, liberty, or property, without due process of law…”  The Constitution, the Bill of Rights and the Declaration of Independence, “known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to its founding and philosophy of the United States.”  National Archieves.  Justice Field argued that the Fourteenth Amendment "was intended to give practical effect to the declaration of 1776,” in which "the pursuit of happiness" appears as one of those rights that "the law does not confer, but only recognizes.””  Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 105 (1872) (Field, J., Bradley, J., and Swayne, J., dissenting).  “[I]t is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.”  Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150, 160 (1897).
 
It must be understood that it is “neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen.  Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty.  [It is]self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.”  Meachum v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J., dissenting).
 
Interestingly, "the rejected dissents of Mr. Justice Field gradually established themselves as the views of the Court.”  Felix Frankfurter, Mr. Justice Holmes and the Constitution, 41 HARV. L. REV. 121, 141 (1927).  The substantive due process principle was developed with the Declaration's natural rights philosophy mixed with it.  For instance, in Meyer v. Nebraska, 262 U.S. 390, 399 (1923) the Court found liberty to be “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 

Say the legislature passed a law which made it a felony to wear a baseball cap backwards. There would be legislative history that indicates the legislators passed this law because of the problem of gangs in society. The legislative history further indicates that gangs are dangerous. The legislature heard testimony that gang members display what gang they are affiliated with by the clothes they wear. Moreover, citizen injuries have resulted when gang members wore their hats backwards as an insult to rival gangs. Therefore, the legislature passed this criminal statute to address this problem.
I wonder how many courts would have the judicial stamina to look past legislative sophistry and call bullshit on a stupid law? The bigger question here is do citizens have any protection when legislatures pass silly laws?
Wearing a hat backwards cannot be criminal in a democratic America. Hopefully, a trial court would honestly apply the law and strike down such a statute since wearing a hat backwards is constitutionally protected. This conduct is like members of the National Socialist Party who wish to parade through a predominately Jewish community in uniforms reminiscent of those worn by members of the German Nazi Party while saluting the swastika. While distasteful, such conduct is, and must always be, constitutionally protected. Collin v. Smith, 447 F.Supp. 676 (N.D.Ill.1978), aff’d, 578 F. 2d 1197 (7th Cir. 1978). As in the case of the uniformed Nazis saluting and marching through Skokie, wearing a hat backwards cannot allow a police officer to reasonably suspect someone of a crime based upon that conduct.
Why does the government have the right to tell me what to wear or not wear? There is little to be found in American history concerning a person’s right to choose his personal appearance. This situation exists because it was thought to be such a fundamental right that its existence was taken for granted. For instance, there was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating:
If the committee were governed by that general principle... they might have declared that a man should have a right to wear his hat if he pleased... but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed. Id., at 54-55. Emphasis added.
The history of the adoption of our Bill of Rights demonstrates that our forefathers clearly believed there to be a right in one’s personal appearance but was of such a trifling nature that it need not be included in the enumerated rights contained in the Bill of Rights. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha, 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution). Clearly, the choice of what a person wears is a matter of taste for the individual and not a matter of regulation by the government. Cohen v. California, 403 U.S.15, 25 (1971) (wearing jacket with the words “Fuck the Draft” on it). The right to control the appearance one’s own body necessarily means a person has the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. Olmstead v. U.S., 277 U.S. 438,478 (Brandeis, J., dissenting). The right to one’s own personal appearance is a personal freedom protected under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969).  The right to your personal appearance is "implicit in the 'liberty' assurance of the Due Process Clause." Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970).
The hat law is an example of when the legislature may have a good intent but the outcome stinks. What about other situations? Is there a protection against stupid laws? As with so much else in law, the question is answered depending on how you define a term; in this case, “stupid law.” If by stupid one means irrational, yes a citizen does have a protection against a stupid law.
Due process demands that a deprivation of property may occur only in accordance with “law.” An arbitrary government action with no rational principle is not a law. Timothy Sandefur, The Conscience of the Constitution 79-84 (2014). As constitutional historian and scholar Edward Corwin put it, a government act “may at times part company with ‘true law’ and thereby lose its title to be considered a law at all.” Edward S. Corwin, The “Higher Law” Background of American Constitutional Law 11 (1955). Emphasis added.
The founders shared this understanding of due process of law. The people who drafted and ratified the Fifth and Fourteenth Amendments were steeped in a historical tradition that granted substantive meaning to “law.” This tradition stemmed from influential British interpretations of the Magna Carta’s “law of the land” clause. See Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of Lawful Rule, 35 Harv. J.L. & Pub. Pol’y 283, 287 (2012) [hereinafter In Defense]. Lord Edward Coke’s treatise, The Institutes—which deeply influenced the founding generation—equated this “law of the land” language with “due process of law.” Id. at 288; Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 607, 662 (2009). Coke believed that “law of the land” or “due process of law” meant that the sovereign could only deprive someone of their rights through a law rooted in rationality. Sandefur, In Defense, supra, at 288. He said the Magna Carta forbade an irrational government act because it lacked the foundation of genuine law. His contemporary, Francis Bacon, made a similar observation: “In Civil Society, either law or force prevails. But there is a kind of force which pretends to law, and a kind of law which savours of force rather than equity.” Francis Bacon, Aphorism 1, reprinted in The Philosophical Works of Francis Bacon 613 (John M. Robertson ed. 1905). 
The founding generation—intimately familiar with “force which pretends to law”—embraced this view. Gedicks, supra, at 611-12, 618. A government action that lacks a coherent explanatory principle is arbitrary and violates Coke’s rule of rationality. Sandefur, In Defense, supra, at 292, 302, 328-29. If a government act does not serve a legitimate end—including fundamental notions of justice—that act violates due process of law. As James Madison wrote, in his essay on property: “[T]hat alone is a just government which impartially secures to every man whatever is his own.” James Madison, Property, reprinted in James Madison: Writings 515 (Jack N. Rakove, ed. 1999). And the corollary: “[T]hat is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.” Id. “[A]n assertion of authority that rests on no basis other than the fact that the authority has asserted it” violates due process. Sandefur, In Defense, supra, at 292. Justice Chase famously espoused this view in Calder v. Bull: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact; cannot be considered a rightful exercise of legislative authority.” 3 U.S. (3 Dall.) 386, 388 (1798). This Court has since affirmed this understanding of “due process of law” as “something more than mere will exerted as an act of power.” Hurtado v. California, 110 U.S. 516, 535-36 (1884). A deprivation of rights may only occur through an act authorized by a legitimate law, not an act of arbitrary “law”.
 
​

In the critically celebrated scene from William Shakespeare's tragedy Macbeth, we are told of sleepwalking Lady Macbeth as she recollects horrific images and impressions from her past.  Lady Macbeth’s sleepwalking is observed by a doctor and female servant.  The doctor feels that Lady Macbeth is beyond his help, saying she has more need of "the divine than the physician."  He orders the gentlewoman to remove from Lady Macbeth the "means of all annoyance", anticipating she might commit suicide. Despite his warning, the audience is informed she does commit suicide off-stage.  But what if Lady Macbeth had not killed herself but someone else while sleepwalking?  Should she be criminally punished for homicide?
Is this question about Lady Macbeth purely academic fantasy?  Hardly.  Just ask Ron Voegtli.  Ron Voegtli acted out his nightmares on a regular basis, subjecting his wife to abuse for thirty years. During the day, she said for ABC News, he was a wonderful man, but during the night there was no restraint on his behavior. An hour after going to bed, he would jump out and begin yelling and running around. He might grab a knife or other weapon as a means of protection. A few times he came into the bedroom and hit his wife, and once he grabbed her and tried to strangle her. Finally, Ron was introduced to Dr. Carlos Schenck at the Minnesota Regional Sleep Disorder Center. Fortunately, Dr. Schenck treated Voegtli with anti-convulsant drugs, which helped alleviate the symptoms.  "He may have been running around the house like a wild maniac, but he's not a mental patient at all," Schenck said. "In the sleep lab … he demonstrated violent behavior during the delta stage of non-REM sleep. That is the stage where there is an alarm ringing in the nervous system of spontaneous, precipitous arousal that sets you off."
In fact, as reported in Psychology Today, “American history is littered with cases of sleepwalking killers – usually men who wake in the night and kill their wife or lover. The best-known historical case is that of Albert Tirrell, who, in 1845, killed his lover, Maria Bickford. They had been having an affair, and after being repeatedly caught by his wife’s family, he decided to kill Bickford and set fire to the building they were sleeping in – apparently to conceal the evidence of his crime. Unfortunately, the landlord was awoken by Bickford’s screams, and Tirrell was eventually caught and tried. He was acquitted of arson and murder, but found guilty of adultery. The rationale – provided by his use of the defense that he was asleep when he committed the murder and started the fire – was that he didn’t choose to kill Bickford, although he had chosen to continue his affair with her.”
Should we convict someone of something they did not voluntarily do?  Hopefully even the most hardened prosecutor would say that convicting someone of something they did not do is wrong.  Technically speaking, criminal law has long held that a conviction of a defendant for crime C is justified only if (1) defendant performs a voluntary act the performance of which is necessary for C’s occurrence (given the statutory definition of C) (Actus reus) and (2) the defendant had the mental purpose to commit the act (Mens rea).
Americans have fought and died to protect the presumption of innocence/proof beyond a reasonable doubt standards that are aimed at preventing conviction of people different from those who actually voluntarily committed the act to a relevant crime.  Laws enshrine our abhorrence of punishment of the innocent, but that simple concept of not guilty unless you did the act voluntarily gets more difficult as the brutality or lack of social acceptance of an alleged crime increases.  In those situations, the need to punish someone for such a terrible act may overwhelm the rational mind. 
Clearly the need for a voluntary act is a fundamental prerequisite to criminal liability.  This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of epilepsy, a blow on the head, or any similar cause.  California Criminal Jury Instruction 4.30.  Automatism is a defense, not because of unconsciousness; the actors in these cases are not unconscious in any ordinary sense. It is also not because intent is lacking, or because the behavior does not amount to an action (the way that slipping and falling does not amount to an action) because the behavior in these cases is not random or accidental but purposive.  Automatism is a defense because the action involved, while conscious and purposive, is not voluntary. The action is not voluntary because, although it involves what used to be called an act of will (being purposive), the act of will is itself caused by something beyond the actor's control—a blow on the head, a sleep disorder, epilepsy.  Actions are not voluntary unless they are up to the actor, and actions that are caused by prior conditions are not up to the actor.
​

​I thought a well-respected trial judge in Milwaukee County was going to burn me at the stake as a heretic.  In the best judge-like tone possible, the judge asked me if I of course would agree that a criminal jury trial was about finding the truth.
 
I answered by saying, “No I would not agree that was the purpose of a trial.”
 
Seeing that I was about to have a lightning bolt strike me, I asked if I could explain my answer.  The trial court graciously said, “Please do….”
 
I went on to explain the unique position the American jury has in the scheme of government.  Unlike the English the Star Chamber which spread terrorism by summoning juries before it for verdicts disagreeable to the government and imprisoned them, American courts have generally has no right to question a jury’s verdict.  As the U.S. Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights."  Faretta v. California, 422 U.S. 806, 821–22 (1975).  The Star Chamber never used a jury and were often used to prosecute cases like prosecute forgery, fraud, perjury, riot, slander, and what we now call disorderly conduct.  Intended to be a streamlined alternative to the common-law courts, it "became a byword for unfair judicial proceedings.”  THE COLUMBIA ENCYCLOPEDIA 2704 (Paul Lagasse ed., 6th ed. 2000)
 
The abuses of the Star Chamber were well known to our Founding Fathers.  The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution.  Pennsylvania v. Muniz, 496 U.S. 582, 595–98 (1990).  As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” –Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.  John Adams colorfully said, “"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."(1774).  For this reason, William Blackstone observed that trial jury is the “palladium of our civil rights.”  The diminution of the importance begins silently, by undercutting the right of a jury from its historical underpinnings.  “Illegitimate and unconstitutional practices get their footing … by silent approaches and slight deviations from legal modes of procedure … It is [our] duty … to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon …”  Boyd v. United States, 116 U.S. 616, 635 (1886).  The right to a jury trial is so important that right to a jury trial in criminal cases is within the 14th Amendment and so is applicable to the states.
 
So, I would respectfully submit that the principle of trial by jury is not to search for the truth as was done in the Star Chamber.  The Declaration of Independence objected to the King making "Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries" and to his "depriving us in many cases, of the benefits of Trial by Jury."  This means that guarantees of jury trial reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government and prevent arbitrary use of power by the government.  Duncan v. Louisiana, 391 U.S. 145, 154-55 (1968).  As James Madison said on June 8, 1789 the jury’s veto power protects minorities from “the body of the people, operating by the majority against the minority.”
 
Legislatures will always confirm the constitutionality of their own acts. And the oaths sworn to uphold the Constitution by judges and public servants have historically been only as good as the power to enforce such oaths.    The power to enforce the oaths of public officials is done by a jury.  “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge … [a jury trial] is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.”  Id. at 156-58.