dissenting: I respectfully dissent from the majority’s finding that Representative Neufeld’s alleged criminal threats of blackmail to Representatives Alldritt and McKechnie are protected by Article 2, § 22 of the Kansas Constitution (Speech or Debate Clause) and cannot be introduced as evidence in the criminal blackmail prosecution against Neufeld.
In reaching its conclusion, the majority acknowledges Neufeld’s statement that legislators are frequently pressured to put aside their personal will and vote in a certain way on a bill. The majority notes Neufeld’s declaration that these pressures to vote a certain way are often accompanied by threats that the wrong vote will result in harsh editorials, letters to the editor, negative campaign*956ing, loss of campaign support (financial or otherwise), or loss of a coveted chairmanship or committee assignment. The majority agrees with Neufeld’s assertion that his alleged criminal threats to secure a vote did not subject him to criminal responsibility because his threats to another legislator related to a vote upon business pending before the House of Representatives. After accepting this assertion, the majority concludes that Neufeld’s alleged criminal attempt to persuade another legislator to change his vote on the House floor while a bill was being voted on was “an integral part of the deliberative and communicative processes by which Members participate in . . . House proceedings with respect to the . . . passage or rejection of proposed legislation . . . .,” Gravel v. United States, 408 U.S. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972).
The majority declares that even a criminal threat of blackmail to influence a vote on the House floor does not override the constitutional protection which the Speech or Debate Clause affords to open exchanges between legislators. Following this reasoning, the majority determines that any criminal threats made by Neufeld to another member of the House on the House floor concerning how to vote on a bill under consideration cannot be introduced as evidence in his criminal trial.
After determining that the framers of the Kansas Constitution intended the Kansas Legislature to be above the law and to secure legislators from criminal prosecution for felony crimes occurring within the sanctuary of the House chambers, the majority observes that a citizen’s (or a legislator’s) only protection from a legislator who commits such crimes is the legislative power to sanction the legislator if the legislature chooses and the voters’ power of the ballot if the voters desire to exercise that right. It concludes:
“[W]e are of the opinion that the conversations among Neufeld, Alldritt, and McKechnie are protected by the Speech or Debate Clause and cannot be introduced as evidence in a criminal blackmail prosecution against Neufeld. As we view the record absent this evidence, the State has no evidence to prove the alleged crime, and thus the trial court did not err in dismissing the case.”
I agree that Kansas legislators are provided immunity if they act within the sphere of legitimate legislative activity. However, I dis*957agree with the majority’s analysis and its conclusion that any conduct, however reprehensible, by a legislator to influence a vote on the floor of either House of the Kansas Legislature falls within the protection accorded to legitimate legislative activity and that the Speech or Debate Clause of the Kansas Constitution prohibits the admission into a criminal trial of evidence of a criminal threat or criminal conspiracy committed on the House or Senate floor. Rather, I find that the constitutional immunity granted in the Speech or Debate Clause does not extend to instances of criminal acts unrelated to the legitimate functioning of the legislative process. See United States v. Johnson, 383 U.S. 169, 172, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966); Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 2d 1019, 71 S. Ct. 783 (1951).
The majority’s single focus analysis of legislative immunity under Article 2, § 22 of the Kansas Constitution is flawed and has led it to an erroneous conclusion. First the majority incorrectly assumes that there is a common-law doctrine of legislative immunity and Kansas legislators have immunity from prosecution equivalent to the protection federal legislators receive under the Speech or Debate Clause of Article I, § 6 of the United States Constitution. Second, the majority fails to consider the significance of the historical difference in the evolution of the United States and Kansas Constitutions and fails to review the records and minutes of the Wyandotte Constitutional Convention to ascertain the intent of the drafters of the Kansas Constitution. Last, the majority does not apply the Kansas rules of constitutional construction.
Common Law
The common law became effective in Kansas when the organic act for statehood was passed in 1855. The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express or positive statute or our written constitution, but upon statements of principles found in the decisions of the courts. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, Syl. ¶ 4, 789 P.2d 541 (1990), overruled in part on other grounds 248 Kan. 824, 844, 811 P.2d 1176 (1991).
*958In Kansas, the common law does not survive if it conflicts with our state constitution or legislative enactments. K.S.A. 77-109 states:
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.”
The majority erroneously determines that the common law doctrine .of legislative .immunity and Article 2, § 22 of the Kansas Constitution provide Kansas legislators protection equivalent to the protection federal , legislators receive under Article I, § 6 of the United States Constitution. It assumes the. protection under Article 2, § 22 of the Kansas Constitution is similar because it is based on the same origin and rationale as the United States Constitution. For authority, the majority cites State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 54, 687 P.2d 622 (1984), and then proceeds to use as, authority federal cases that analyze the United States Constitution. . ......
Article 1, § 6 of the United States Constitution recognizes the need for protection of legislative independence in a, governmental system of separation of powers, a theme long found in English, law. The English Bill of Rights of 1689 provided: “That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.” 1 W. & M., Sess. 2, ch. 2. The language of this clause finds direct kinship in the English Bill of Rights of 1689. As the United States Supreme Court explained in United States v. Johnson, 383 U.S. 169, 178, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966):
“This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States histoiy, the privilege has been recognized as an important protection of the independence and integrity of the legislature.'. . . In the American governmental *959structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.”
In United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972), the United States Supreme Court observed that it was important to note that the English system of government differs from ours in that the English Parliament was the supreme authority, and not a separate branch. The Brewster Court pointed out that the United States Constitution’s Speech or Debate privilege was designed to preserve legislative independence, not supremacy. 408 U.S. at 508. It noted that the clause provides protection of speech in Congress by immunizing United States Senators or Representatives engaged in legislative functions from civil or criminal suit. It observed, however, that some restraints on the conduct of federal legislators remain, for application of the privileges of the clause has been limited through narrow judicial interpretation.
The Brewster Court also observed that it has never seriously been contended that political matters such as giving assistance in securing government contracts, preparing news releases, and delivering speeches outside Congress, however appropriate, have the protection afforded by the Speech or Debate Clause. 408 U.S. at 512. It then noted that a careful examination of the decided cases reveals that the Court has regarded the protection from criminal prosecution as reaching only those things “ ‘generally done in a session of the House by one of its members in relation to the business before it,’ ” or things “ ‘said or done by him, as a representative, in the exercise of the functions of that office.’ ” 408 U.S. at 512-13.
Under Article 2, § 1 of the Kansas Constitution, a governmental sovereign power is vested in the legislature, except such as is granted to the other branches of government, or expressly withheld from the legislature by constitutional restrictions. It is the primary duty of the courts to safeguard the declaration of rights and remedies guaranteed by constitutional provisions. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, Syl. ¶¶ 1, 2.
Article 2, § 22 of the Kansas Constitution provides:
*960“Legislative immunity. For any speech, written document or debate in either house, the members shall not be questioned elsewhere. [Speech or Debate Clause] No member of the legislature shall be subject to arrest — except for treason, felony or breach of peace — in going to, or returning from, the place of meeting, or during the continuance of the session; neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its commencement. (Arrest Clause)”
State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. at 54, is the only case decided by this court interpreting the Kansas Constitution Speech or Debate Clause. Stephan did not involve legislative immunity from criminal prosecution. Stephan was a civil action in quo warranto and mandamus brought by the State against the individual members of the Kansas House of Representatives and the Kansas Senate, and the Kansas Governor, seeking a determination of the constitutionality of K.S.A. 1983 Supp. 77-426(c) and (d). That statute allowed the legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolutions passed by the legislature- without presentment to the governor. The legislature filed a motion to dismiss the action, alleging that the common-law doctrine of legislative immunity embodied in the.Speech or Debate Clause of the Kansas ing a legitimate legislative function. The issue was whether the legislature was subject to a civil action, brought on behalf of the State to determine the constitutionality of its action alleged to violate the doctrine of separation of powers by usurping the authority of the executive branch to administer and enforce laws.
The Stephan court found that the purpose of the Speech or Debate Clause of the Kansas Constitution was to insure that legislators may perform legislative functions independently, free from outside interference or fear of such interference and the burden of defending themselves in civil actions. 236 Kan. at 54-55 (citing Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32, 64 L. Ed. 2d 641, 100 S. Ct. 1967 [1980]). The Stephan court noted that the United States Supreme Court had stated that “ ‘¡the “central role” of the Clause is to “prevent intimidation of legislators by the Executive and accountability before a possible hostile judici*961ary.” [As such,] the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.’ ” 236 Kan. at 56 (quoting Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 502-03, 44 L. Ed. 2d 324, 95 S. Ct. 1813 [1975]). The Stephan court found that legislative immunity was not written into the Kansas Constitution for the purpose of protecting the private or personal benefits of legislators. Rather, immunity was provided to “ ' “protect the integrity of the legislative process by insuring the independence of individual legislators.” ’ ” 236 Kan. at 55 (quoting Eastland, 421 U.S. at 502-03, quoting Brewster, 408 U.S. at 507.
Intent of the Drafters of the Kansas Constitution
The essential difference between a constitution and a statute is that a constitution usually states general principles or policies and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions but to govern future contingencies. State ex rel. Stephan v. Finney, 254 Kan. 632, Syl. ¶ 2, 867 P.2d 1034 (1993).
The Constitution of the United States was framed in Philadelphia in 1787 by a Constitutional Convention. It was adopted and signed on September 17, 1787, by representatives of all of the original states except Rhode Island. The meeting of the representatives writing the proposed Constitution was closed, and official minutes were not published. The debates for ratification of the Constitution were held in each state and published in a series of articles known as the Federalist Papers. Eleven states ratified the Constitution by August 1788, and the Constitution became effective on that date. Since its ratification, the federal courts have been required to interpret the United States Constitution because of the vagueness of certain broad clauses and the lack of a historical record to indicate what its framers intended.
The United States Supreme Court has decided few cases concerning the construction, scope, and interpretation of the Speech or Debate Clause of the Constitution. A majority of the cases dealt with civil liability of members of Congress, their staff, or employees *962of Congress, not immunity for criminal acts committed on the House or Senate floor. In its analysis, the majority in this case reviews four United States Supreme Court cases which address the Speech or Debate Clause: United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979); Gravel, 408 U.S. 606; Brewster, 408 U.S. 501; Johnson, 383 U.S. 169. Some of the cases do not apply to immunity from criminal prosecution. Except for Johnson, where the Court discussed the Speech or Debate Clause immunity from criminal charges for crimes committed on the legislative floor, the discussion was mere dicta.
In Johnson, a former Congressman was convicted in the United States District Court for the District of Maryland on seven counts of violating the federal conflict of interest statute, 18 U.S.C. § 281, and on one count of conspiring to defraud the United States in violation of 18 U.S.C. § 371. At the trial, there was evidence, as well as argument by counsel, relating to the authorship, content, and motivation of a speech which the defendant allegedly made on the floor of the House of Representatives in pursuance of a conspiracy designed to give assistance, in return for compensation, to certain savings and loan associations indicted on mail fraud charges. The 4th Circuit Court of Appeals set aside the conspiracy count, holding the Government’s conspiracy allegation was barred by Article I, § 6. On certiorari, the United States Supreme Court affirmed, stating the prosecution on the conspiracy count, being dependent upon an intensive inquiry with respect to the speech on the floor of the House, violated tire Speech or Debate Clause of Article 1, § 6 so as to warrant the granting of a new trial on the conspiracy count, with all elements offensive to the Speech or Debate Clause to be eliminated. 383 U.S. at 185.
In applying the federal rationale of these cases to the Kansas Constitution, it is important to note that all four cases discussed in the majority opinion were decided subsequent to the adoption of the Kansas Constitution. The drafters of the proposed Kansas Constitution could not have been aware of or influenced by these later federal court decisions.
We are interpreting the Kansas Constitution. This court not only has the authority, but also the duty, to construe the Kansas Con*963stitution within the apparent intent of those who adopted it. State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). Although the Speech or Debate Clause of Article 2, § 22 of the Kansas Constitution has historic roots in English history and Article I, § 6 of the United States Constitution, it must be interpreted in light of the Wyandotte Constitutional Convention and in the context of the Kansas constitutional scheme of government.
Our constitution is a written charter enacted by the direct action of the citizens of Kansas. It is a compilation of the fundamental laws of the state and embodies the principles upon which the state government was founded. The object of our constitution is to provide a government of laws and not of men, while insuring the protection of life, liberty, and property. Samsel v. Wheeler Transport Services, Inc., 246 Kan. at, 347-48. Unlike the United States Constitution, which was drafted in a closed convention without official minutes, the Wyandotte Constitutional Convention was open and the official minutes were published. The elected delegates assembled at Wyandotte on the first Tuesday of July 1859 to form a constitution and provide for the organization of a state government for the State of Kansas. Several standing committees were appointed to draft the several subdivisions of the constitution for consideration by the convention in adopting the Kansas Constitution. The various standing committees included committees for the executive department, the legislative department, and the judicial department. Minutes were kept of the committee report and published as The Wyandotte Constitutional Convention.
At the afternoon session of Tuesday, July 12, 1859, on motion by Mr. Thacher, the general order of reports from standing committees was taken up. Mr. Thacher, from the committee on the legislative department, submitted the following report as to Article 2, § 22:
“For any speech or debate in either house the members shall not be questioned elsewhere. No member of the Legislature shall be subject to arrest, except for' a felony or breach of the peace, in going to or returning from the place of meeting, or during the continuance of the session, neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its com*964mencement.” Proceedings arid Debates Embracing the Secretary's Journal of the Kansas Constitutional Convention, p: 114,(1920). -
In the afternoon session of Wednesday, July 13,1859, on motion by Mr. Slough, the Convention resolved into a Committee of the Whole — Mr. Hippie in the Chair — and resumed the consideration of the report of the committee on the legislative department — the question pending being on thé adoption of Article 2, § 22.
Mr. Brown offered the following as a substitute:
“For any speech or. debate, in, either house, the members shall not be questioned elsewhere, nor shall any word or words spoken in debate in either house of the Legislature be the foundation of any action, complaint or prosecution. No member of the Legislature shall be subject to’arrest, except for a felony or breach of the peace, in going to or returning from the place of meeting, or during the continuance of the session, nor for fifteen days previous to its commencement.” Proceedings and Debates, p. 135.
Ordinarily there is a presumption that a change or a refusal to change the language of the constitution results from the framers’ purpose to change or the refusal to change its effect. Cf. In re Marriage of Schuhs, 20 Kan. App. 2d 98, 99, 883 P.2d 1225 (1994), rev. denied 257 Kan. 1092 (1995) (“Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose , to change its effect.”). The substitute amendment, if adopted, would have granted legislators unlimited immunity and prohibited any word or' words spoken in debate in either house of the legislature from being the foundation of any action, complaint, or prosecution. The proposed amendment offering unlimited immunity for any word or words spoken in either house of the legislature was rejected, and the section passed without the amendment. See Proceedings and Debates, p. 135.
The defeat of Brown’s substitute wording shows that the framers of the Kansas Constitution believed in a narrow and restrictive view of legislative immunity and certainly not the broad and expansive view which is taken by the majority. .
Kansas Rules of Constitutional Construction
It is the function and duty of the Kansas Supreme Court to define constitutional- provisions. The definition should achieve a *965consistency so that it shall not be taken to mean one thing at one time and another thing at another time. The nature of the judicial process is that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself. State ex rel. Stephan v. Finney, 254 Kan. 632, Syl. ¶ 4.
The difficulty for the majority in reaching a logical conclusion is that neither the Kansas case nor the federal cases cited by the majority define or interpret what is “speech,” “debate,” or “the criminal activity” protected by the immunity clause. This difficulty is compounded because the majority fails to note the distinction between words or phrases having legal significance and common words. “Arrest,” “prosecution,” “felony crimes,” and “breach of the peace” are words or phrases having legal significance and are defined in Black’s Law Dictionary (6th ed. 1990). “Speech” and “debate” are common words and are not defined in Black’s Law Dictionary (6th ed. 1990).
When construing the Kansas Constitution or a statute, a court should give words in common usage their natural and ordinary meaning. See Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). When a section of the constitution is plain and unambiguous, the court must give effect to the intention of the framers as expressed, rather than determine what the law should or should not be. See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994); Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Applying the rules of statutory construction to the Kansas Constitution, it is presumed the framers of the constitution understood the meaning of the words they used and intended to use them and that the framers used the words in their ordinary and common meaning. See Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993).
“Speech” is defined as the faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words. It is also defined as a public address and described as a lecture, oration, talk, the core meaning; a formal oral communication to an audience. Webster’s II New Riverside University Dictionary 1117 (1988).
*966“Debate” is defined as, to consider or deliberate; to engage in an argument by discussing opposing points; to engage in a formal discussion or argument; and a formal contest of argumentation in which two opposing teams defend and attack a given proposition. Webster’s II New Riverside University Dictionary 351 (1988).
“Blackmail” is gaining or attempting to, gain anything of value or compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt, or degradation. Blackmail is a severity level 7, nonperson felony. K.S.A. 21-3428.
The discussions among Neufeld, Alldritt, and McKechnie were not public addresses or debates among the members of the House of Representatives. Instead, in order to be effective, the threats to influence the votes were communicated in a secretive manner. Accordingly, blackmail is not speech or debate, nor does it relate to a legitimate legislative function. The crime of blackmail is not an integral or essential part of the legislative process. Rather, the crime is only peripherally reláted to the legislative office and should not be protected from prosecution. See United States v. Brewster, 408 U.S. 501, 520, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972). Because Neufeld was not making a speech or involved in a debate on the House floor, Article 2, § 22 of the Kansas Constitution does not apply.
The structure of the Kansas government consists of interlocking privileges created by the constitution, legislation, and judicial decisions. Under our form of government, we accept disparate treatment for the different branches of government as normal and commonplace. Under our constitution, each branch of government enjoys advantages or privileges which are not enjoyed by the other two branches. Regardless of the origin of special privileges, the branch which benefits is not above the law and is required to act lawfully.
Our system of government is founded upon the restrictions placed on government by the constitution. The judiciary interprets, explains, and applies the law to controversies concerning rights, wrongs, duties, and obligations arising under the law. The court is *967obligated to interpret the constitution and safeguard the basic rights reserved to the people. U.S.D. No. 380 v. McMillen, 252 Kan. 451, 461, 845 P.2d 676 (1992).
When a case is decided on grounds of public policy without the benefit of a constitutional declaration from which an influence can be fairly drawn, a court necessarily relies upon its own sense of public policy and community values. Before a court is justified in declaring the existence of public policy in its interpretation of our constitution, the policy should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt. Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, Syl. ¶ 7, 872 P.2d 252 (1994).
As I previously stated, courts are called upon to weigh considerations of public policy when adding to the content of the common law, when filling in statutory gaps left by the legislature, and when applying constitutional precepts to vague and broad clauses of the constitution. Of all of the aspects of judicial review, considerations of public policy are compelling or even decisive when balancing the rights and principles involved. In reaching its decision, the majority determines that under Article 2, § 22 of the Kansas Constitution, a legislator has a right to be free from prosecution for criminal blackmail committed on the floor of the House. Under the circumstances, in order to protect the integrity of the legislative process and safeguard the basic rights reserved to the people, a balancing test of competing rights is required. In addition to Neufeld’s claim of immunity from criminal prosection, the balancing test to be applied must include the public’s expectation of honest government and the right of all legislators to be free from criminal influence when casting a vote for or against proposed legislation.
Legislators are frequently pressured to put aside their personal will and vote in a certain way for special legislation. The purpose of this time-tested tactic for passing special interest legislation is to create a connection between the benefit for the affected interest group and a general benefit for society as a whole. Voting for or against passage of a statute can result in harsh editorials, letters to the editor, negative campaigning, loss of campaign support, or loss *968of a coveted chairmanship or committee assignment. This is not an evil; it is the reality of a political system.
However, blackmailing another legislator to cast a vote is obviously no part of the legislative process or function; it is not a legislative act, nor is it, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislátor. Neither is it an act resulting from the nature and execution of the office, nor is it a thing said or done by a legislator as a representative in the exercise of the functions of a legislator’s office. It is not necessary to inquire into a legislative act, or into'the motivation, for a legislative act, in order to prosecute a member of the legislature for the criminal act of blackmail.
Neufeld’s contacts with Alldritt and McKechnie were not in furtherance of legitimate debate of the legislation then pending in the House. The contacts were made to compel Alldritt to vote contrary to his intentions, to cause marital discord, and to encourage Alldritt’s wife to ask her husband to change his vote. Article 2, § 22 of the Kansas Constitution was not meant to protect such conduct. The clause is meant to preserve legislative integrity. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 55, 687 P.2d 622 (1984). Granting protection to Neufeld from prosecution for criminal blackmail poses a threat to legislative integrity because blackmail is contrary to democratic ideals and principles embodied in our constitution.
The majority’s vision of government deprives the public of its constitutional right to honest representation by a legislator who is the victim of the blackmail. Forcing a duly elected representative to change his or her vote under criminal threat of blackmail is repugnant to our system of government. It is an illegal act performed not in furtherance of a free and open legislative debate, but in degradation of it. The only reasonable reading of the Speech or Debate Clause of Article 2, § 22 of the Kansas Constitution, consistent with its history and purpose, is that it does not prohibit inquiry into criminal activities occurring on the House or Senate floor, because such conduct is not a part of the legislative process. Conduct such as blackmail or bribery occurring during a session *969of the House on the House floor is not protected under Article 2, § 22 of the Kansas Constitution and can be admitted into evidence.
McFarland, C.J., and Larson, J., join the foregoing dissent.