However, the objection of lack of subject matter jurisdiction or lack of a justiciable case under Rule 12(b)(1) is not waivable, as the right to raise a subject matter jurisdiction objection does not just belong to the individual but to the judicial system as well, for it is provided to protect the system and keep it from operating beyond its statutory and constitutional boundaries. In litigation, almost all procedural objections are waivable, either intentionally, by agreement of the parties or by the parties’ stipulation with the court’s consent, or unintentionally, by failure to raise the objections in a timely manner. Waivable Rights in the Middle of the Spectrum: Presumption Against Waiver and Careful Considerations of All the Interests and Potential Harms Involved Unwaivable Rights: The Highest Ebb of the Spectrum Waivable Rights: The Lowest Ebb of the Spectrum A Proposed Method to Test the Waivability of Constitutional Rights The “Unconstitutional Conditions” Doctrine State Consent to the Aggrandizement of Federal Power The President’s Unilateral Exercise of the War Powers The Right Not to Be Subject to Cruel and Unusual Punishment Identifying This Study’s “Zone of Interest”: Zooming in on Some Constitutional Rights and Powers In the middle, the formula places rights like the right to free speech or voting rights, which should be waivable only after careful consideration of all the interests involved-those rights whose waivability should be determined with a presumption against waiver, given their collective dimension. At the opposite end of the spectrum, the formula places those rights, such as Eighth Amendment rights, or the rights related to the exercise of powers, such as the State consent to the aggrandizement of the federal power, the President’s unilateral exercise of the war power, or the majority rule, which should not be waivable. The formula uses a spectrum, placing at one end those rights that should be waivable-mostly procedural rights, such as the right to object to the lack of personal jurisdiction, improper service of process, and improper venue, which are all procedural rights intended to safeguard procedural due process rights of a defendant. Even though these structural and power allocation provisions do not, on their face, purport to protect the rights of individuals against the federal or state governments, their underlying purpose is to restrain federal power for the ultimate benefit of individuals-federal powers like the President’s unilateral exercise of the war powers without a declaration of war from Congress, the State consent to the aggrandizement of the federal power, and the Senate’s filibuster rules.Īfter analyzing the constitutional rights that might demand special consideration when it comes to waiver, this Article suggests a framework or formula for determining whether a constitutional right should be waivable and what factors should be considered to make that determination. The waiver issue may also arise in the context of provisions contained in the body of the Constitution that do not on their face purport to confer individual rights, like the provisions governing the powers of the federal government, those related to the separation of powers among the three federal branches, and those seeking to define the respective authorities of the federal government and the states. In these cases, a waiver will usually be upheld so long as it was done knowingly and voluntarily, as an individual can normally consent to or waive what would otherwise be a violation of their own constitutional rights. The first involves the waiver by individuals of constitutional rights that belong to them, like, for instance, a criminal defendant’s right to counsel in a federal prosecution, a person’s right against self-incrimination in criminal cases, a citizen’s right to vote, and the right to free speech. The question as to the waivability of constitutional protections may arise in two contexts. Although the Court has stated that waivers of constitutional rights must be voluntary, knowing, and intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences, this formula only takes into account the interests of the individual right holder it does not consider the other interests involved, including those of the parties and broader societal interests at stake and how a particular waiver might affect them and our system as a whole. Consider, for example, the right not to be subject to cruel and unusual punishment. While constitutional rights may ordinarily be waived only if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent, the waiver of some of those rights is hard to conceive. Waiver is the intentional relinquishment or abandonment of a known right.
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