[Congressional Record Volume 143, Number 112 (Friday, August 1, 1997)]
[House]
[Pages H6710-H6713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ORIGINAL INTENT
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 7, 1997, the gentleman from Texas [Mr. Paul] is recognized for
60 minutes as the designee of the majority leader.
Mr. PAUL. Mr. Speaker, we all know that when we come here to the
Congress, the only oath that we take is to the Constitution. Yet I
think very often we here in the Congress are careless about the
Constitution and that we do many things that do not comply.
A recent article in the New Republic calls attention to this subject
and more or less ridicules and downplays the importance of the original
intent of the Constitution. Today I would like to discuss that article
and reiterate the importance of the Constitution and the reason why we
must have the rule of law rather than the rule of man.
The principle of original intent which underpins the Constitution is
under serious attack. This is nothing new, but there is now a much more
open challenge to this principle than ever before. A case in point is
the New Republic article of June 23, 1997, called ``Unsound
Constitution,'' where George Fletcher, a Columbia law professor,
viciously attacks all Constitutionalists, vicious because he uses
modern-day McCarthyism to tie any individual defending the Constitution
and its original intend to all Oklahoma City type bombings.
In this very significant article, voicing a strong anticonstitutional
viewpoint, Fletcher uses McVeigh to discredit not just the misdirected
and ill-advised promoters of violence but the entire American
Revolution and the goals set by the Founders.
Failing to consider that McVeigh flaunted property rights and the
personal liberties of innocent people, Fletcher nevertheless uses him
as an example of a true defender of the U.S. Constitution by using some
of McVeigh's quotes. This New Republic's article falsely equates the
bombing of innocent people with those who strictly interpret the
Constitution, a document which Fletcher describes ``is fundamentally
wrong.''
Professor Fletcher goes to the heart of the matter. He openly attacks
the principle that rights are ``vested in the people'' and claims it
was this principle that McVeigh used to justify what he did.
Painting with a very broad brush, Fletcher hopes to dispense with the
entire Constitution and its protection of individual and minority
rights. If the New Republic, Fletcher, and his allies get away with
this preposterous assertion, it will further undermine the principles
of individual rights.
Fletcher claims the greatest myth surrounding the Constitution is
that the people are sovereign and that sovereign people will inevitably
engage in actions like that of Timothy McVeigh. Equally threatening to
the ``big government'' theory is that this concept of sovereignty, with
rights being left to the people, would justify jury nullification, a
horrible and dangerous thought as far as they are concerned.
Jury nullification allows acquittal when a juror refuses to vote for
a conviction for moral, constitutional, or even racial reasons. Yet
jury nullification is a tradition of long standing, not only in
American law but in the British law as well, dating back to the Magna
Carta in 1215 A.D. But Fletcher refers to jury nullification as
``obstruction of justice,'' equivalent to overt sedition against the
Government.
Fletcher is consistent and even condemns the black left for endorsing
this notion that juries have some type of veto power over bad
legislation. Several professors from the left now advise that injury
nullification can and should be used in certain cases to repeal unjust
laws when they are specifically targeted against African-Americans,
such as with drug laws. Obviously, this veto power of the people should
be used to nullify unjust laws in general, not just against black
Americans.
What the New Republic and Fletcher fail to recognize is that this is
a technique that could have been successfully used in the fifties and
the sixties in the civil rights struggle, with a lot less violence
resulting.
The thought that the people retain enough sovereignty and authority
to veto our legislative bodies threatens Fletcher and other ``big
government'' proponents.
The Fully Informed Jury Association, a movement of well known
significance today, must be having an impact on our society, or why
would we all of a sudden see a systematic attack on this concept?
This attack is not limited to the New Republic. The New York Times
has chimed in as well, expressing deep concerns about this dangerous
notion that people ultimately have a say about the constitutionality of
legislation.
If Fletcher had his way, he would argue that the people's only
recourse to bad law is strictly limited to the ballot box, while
excluding the jury box. The boldness with which Fletcher attacks the
original intent of the Constitution is frightening, but also helpful in
getting us to understand exactly what the goal is of the supporters of
the new Constitution.
The fundamental flaw in the old Constitution, according to Fletcher,
is, ``The original Republic, the one for which our forefathers fought
face to face, hand to hand, exists only in the minds of academics and
fundamentalist patriots. The Republic of 1789 is long gone. It died
with 600,000 Americans killed in the Civil War. That conflict decided
once and forever that the people and States do not have the power to
[[Page H6711]]
govern their local lives apart from the Nation as a whole.''
He argues that the original Republic died, and deserved to do so,
because of its flaw in dealing with slavery. But how can this single
admitted flaw be reason to reject all the worthy parts? This is only an
excuse to reject the entire concept of the Doctrine of Enumerated
Powers and the idea of the rule of law in contrast to the rule of man.
And all this is to be accepted as fact because this flaw in the concept
of individual rights with regards to slavery supposedly led to the
irrational acts of McVeigh.
Fletcher laments the absence of the word ``equality'' appearing in
the Constitution, a word, of course, dear to the hearts of all
socialists. Clearly, it is economic equality he is talking about. He
complains that in 1789 equality was less important than the fear that a
Federal Government might infringe our liberties. What Fletcher does not
realize is that the large majority of American people are still fearful
of that very same thing.
What actually scares the anticonstitutionalists like Fletcher is,
today there is once again a growing number of Americans who fear and
distrust the Federal Government and yet do not relate in any way to the
McVeighs of the world. His only hope is to discredit the
constitutionalists and the entire principle of the Doctrine of
Enumerated Powers by slanderous innuendoes, associating them with
violence towards innocent victims. Fletcher makes McCarthy look like a
saint.
Fletcher boldly now refers to the new Constitution, the one that
shapes and guides the National Government, and, unfortunately, in a
real sense, I am fearful that he is correct that a new Constitution, or
at least the way the original one is treated by Congress, the courts,
and the administration, prevails and guides most government action
today.
Up until now, it has been subtle and seductive, but the boldness with
which Fletcher and the New Republic try to bury the old Constitution
should alert us all to what is happening.
Fletcher argues that the notion of organic nationhood replaced the
sovereignty of the people. That, I am sure, a lot of Americans were not
aware of. And the United States evolved from an elitist republic into a
democracy, so he says. Jefferson and Franklin would be shocked. This
idea, he claims, was not acceptable by the Founders, since they lived
only for the moment.
He talks as if truth and liberty were not meant for the ages. This
proposition, he argues, allows ``the sustained campaign to convert the
elitist Constitution of 1789 into an egalitarian Constitution that
bases democratic rule on the majority of all the people,'' thus
endorsing the dictatorship of the majority while destroying the concept
of minority rights.
Fletcher clearly here endorses the very flaw, limited as it was, that
permitted the acceptance of slavery in the original Constitution and
that which he pretends to disavow.
In other words, he rejects the best part of the Constitution and
retains the worst part, which permitted slavery, by endorsing the
concept of the dictatorship of the majority while failing to protect
inalienable and individual rights.
Fletcher's obvious goal is to promote the new Constitution,
nationhood, equality and pure democracy, while burying the notion of
the Republic, protection of individual liberty, and the rights of the
minority. His main goal is to reject the notion that the people
ultimately are the guarantors of the Constitution, the bestowers of
legitimacy.
His final conclusion is that the States and the people no longer
retain rights and powers, thus clearly and forcefully repealing the 9th
and 10th amendments. With these gone, the people have no claims to real
control over the Government.
What then is left for the people? They are still permitted, as
Fletcher says, to be the voters, office holders, and the beneficiaries
of legislation.
The theme of this devastating article is that it enforces the idea
that Government does not get its power from the consent of the people
and makes the citizen a creature of the state, with the Government no
longer being a creation of the people through a voluntary social
contract.
Fletcher is quite accurate when he admits the original Constitution
strictly limited Government power, but subsequent legislation and court
rulings, he argues, now permit intervention into the private affairs of
citizens. This, of course, has led to the modern day Federal police
state where there are tens of thousands of Federal regulations and
laws. The administrative courts are now in charge, for the most part,
outside of constitutional protections.
It is neither a coincidence nor an accident, as Fletcher brags, that
we have arrived and can legalistically defend big government and
justify it. He says this necessitates an activist Federal Government
committed to preserving equality.
According to Fletcher, the welfare state and the force required to
redistribute wealth is, therefore, justified, thus planting the seeds
of a totalitarian state, which will come in due time if the course of
events are not changed.
Fletcher is quite pleased to show that the new Constitution permits
the income tax and all post-Depression welfare programs, and the
prevailing theme of the whole article is that anybody who objects is a
McVeigh. The concern for illegitimate use of force is absent from his
discussion.
Unfortunately, this article speaks for many in government, especially
in our courts. But, interestingly enough, it represents one of the very
few honest articles arguing very clearly that the old Constitution and
the old Republic are archaic and should be buried.
But ignoring the Constitution is not enough. We intellectually and
philosophically must now reject it, according to this New Republic's
theme, and anyone who disagrees will be guilty by association with
those who would use violence against innocent people.
Supporters of the modern day gargantuan state never cared much for
the original intent of the Constitution which severely restricts the
power of the Federal Government. They are quite aware that the Doctrine
of Enumerated Powers prohibits the Federal Government from almost
everything it is currently doing.
To undermine the original intent of the Constitution, to limit the
Federal Government, promoters of big government knew it would take
constitutional amendment, court rulings, and constant legislative
action, and even war to accomplish it. It is possible that their task
is complete. Is it possible that their task is complete and essentially
a new Constitution has now replaced the old? Is this the reason for
their boldness?
Many friends of freedom constantly worry that a Constitutional
Convention to pass a balanced budget amendment poses a great danger
because of the chance that, at such a gathering, the Constitution would
be rewritten. Of course, there is no need for a Constitutional
Convention, but the fear of losing our rights at one should be replaced
with the concern for the changes ongoing with the present one.
If Fletcher is right, the new Constitution is already in place, not a
literal one, but the one that we now follow has so radically changed
that the Framers' original intent is no longer recognizable nor
desirable by many.
Never have I read any article so forthright about the intent of the
modern day social reformers. The boldness with which Fletcher buries
the old Constitution should cause alarm for anyone interested in the
experiment in freedom started in America more than 200 years ago.
By using this, the only significant flaw in the 1789 document,
slavery, Fletcher throws out every good thing intended by the
Constitution while preserving its one major shortcoming,
majoritarianism, that permitted slavery in the first place.
Fletcher's love of the dictatorship of the majority to guarantee
economic equality for all, while ignoring the principles of individual
liberty, permits him to elevate the flaw which permitted the slavery
compromise to the highest plane possible. In doing so, all of the grand
elements of the old Constitution are effectively denied.
Getting relief from the oppression of the old Constitution, according
to this article, with the Civil War and the subsequent changes
thereafter, elevated the National Government, and especially the
Federal courts, to a point far superior to the States and the people.
[[Page H6712]]
But the New Republic is not alone in expressing grave concern about
the growing interests and understanding of injury nullification. It is
now more commonly discussed on television and special programs and in
newspapers like the New York Times.
A recent court case prompted an appeals court to warn us of the great
danger of the fully informed jury and granted more power to judges to
curtail this growing phenomenon. It is not only the political right
they are concerned about. Minority groups on the left are using jury
nullification more frequently than in recent memory.
It is not so much that the opponents of nullification are opposed to
the goals of the left; it is that they fear the growing interest in
jury nullification in the groups dedicated to the original
interpretation of the Constitution may use it successfully. If the old
Constitution is dead and the new one is now in place, the last thing
they need is to have a bunch of uninhibited citizens expressing
themselves through the common law practice of jury nullification.
It is, therefore, in their interests even if it requires attacking
the left as well as the right, to stop this movement as quickly as
possible. Just because it was part of our history for more than 100
years means nothing. Promoting a powerful state, which includes an
authoritarian judiciary and ever present bureaucracy, is of greater
importance to them.
This most recent victory for the promoters of the new Constitution,
which includes further attack on jury nullification, occurred in the
Manhattan Appeals Court in May. In the ruling, the court denounced the
practice of jury nullification. Judge Jose Cabrares said to practice
jury nullification is a violation of a juror's duty to follow
instruction of the court.
The case involved nonviolent drug possession. Although the appeals
court permitted the innocent verdict to stand, the court was emphatic
that judges do have a right, and an obligation, to investigate a
juror's motivation on a vote of acquittal.
Our history shows that this process helped prevent fugitive slaves
from being sent back south before the Civil War period. John Peter
Zenger, a colonial publicist, was freed by his peers on charges of
sedition through this same process.
The practice of jury nullification during the twenties helped force
the repeal of alcohol prohibition once the majority of people realized
the laws were irrational and abusive.
Liberal black professors from George Washington University and
Harvard are now urging jury nullification to promote civil rights in
the courts. If this move to urge judges to judge all jurors' motivation
is carried out, the process of jury secrecy will be a thing of the past
and trial by jury just may be the last chance we have for revoking some
of our Federal legislative monstrosities.
Congress has been irresponsible in this regard. The New York Times,
May 27, 1997, editorializes, I am sure with mixed feelings, since jury
nullification helps the left, strongly in favor of judges removing
jurors who might be construed to be judging the wisdom of the law as
well as the interpretation of the facts. But the New York Times knows
the power of the people could weaken the powers of the Federal
Government developed over the past 50 years through this process and
literally repeal the interventionist state without waiting for a slow,
plodding, and inefficient Congress to do it for them.
This puts fear into the hearts of all ``big government'' advocates.
Can one imagine what might happen if all nonviolent crimes were ignored
by jurors? We would suddenly have room in our prisons once again for
the rapists, muggers, and murderers.
District attorneys practice a form of jury nullification all the time
in deciding frequently not to prosecute certain cases. Grand juries
likewise fail to indict for personal or legal reasons, in spite of the
facts presented. Many State constitutions still protect the right of
the citizens to practice jury nullification.
Jury nullification is not perfect, but permitting it would be an
improvement to the current system. Yes, there would be a chance that
somebody might be freed for the wrong reason. But ultimately in a free
society, sovereignty must remain with the people and not with the
dictatorship of the majority or an elitist, powerful government.
There are enough mistakes made today with our jury system, and there
is enough danger with a Government that is growing out of control, that
jury nullification, something available since 1215 A.D., should be
available to the citizens of this country. It could go a long way
toward establishing a free society once again in America.
According to Lysander Spooner, a mid-19th-century writer, there are
five separate tribunals protecting us from abusive government: The
House of Representatives, the Senate, the executive, the courts, and
the common law jury. He maintains that all are important but that the
ultimate protection of our liberty must be placed in the hands of our
peers. His ``Essay on the Trial by Jury,'' 1852, deserves close study
by all 20th century students concerned about the future of freedom in
America.
John Jay, the first Chief Justice of the Supreme Court, agreed with
this principle. In his first jury trial in 1794, Georgia versus
Brailsford, he stated: You have nevertheless a right to take upon
yourself to judge of both and to determine the law as well as the facts
controversy.
Jefferson was in agreement. ``To consider judges as the ultimate
arbiter of all constitutional questions is a very dangerous doctrine
indeed, and one which would place us under the despotism of an
oligarchy.''
The 20th century, however, has witnessed a serious erosion of this
principle. Since 1895, Sparf versus United States, the right of the
jury to rule on the justice and constitutionality of the law as well as
the facts in the case has been seriously undermined.
Also, the lack of concern and understanding for individual rights has
affected jurors, just as it has affected the Representatives, Senators,
judges, and Presidents.
Jurors in recent times have been just as guilty of ignoring the
principles of equal rights as have our representatives in our
legislatures, judiciary, and executive bodies of government. These two
factors have greatly diminished the value of the jury in the 20th
century.
Those frustrated with changes in the Congress, the executive, and the
judiciary, and there is certainly good reason for frustration, must
consider educating potential jurors as to the importance of the common
law jury and the principles of individual liberty. An awakened
citizenry participating in juries around the country could bring about
a nonviolent revolution of magnificent proportion, reversing the sad
trends of the 20th century.
{time} 0930
The jury today is a weak institution, as are all the other
institutions designed to guarantee individual liberty. Proper effort
could revitalize the jury and restore it to its rightful place in
curtailing the endless growth of an all-powerful government.
Several legal events in the 20th century had to occur for big
Government to thrive. The deemphasis of the jury was crucial in the
expansive powers of the omnipotent state. Judging the moral intent and
the constitutionality of the law is no longer even a consideration of
the jury. Today, judges instruct the jury to consider only the facts of
the case, and then the judges become the sole arbiter of evidence
admissible in court. Because of this, the jury system has become
progressively weak over the past 100 years. In addition, judges write
into their rulings grand designs for society. Our judiciary bodies have
become legislative bodies.
Another problem is that a major part of the judicial system has been
removed from the people by placing it in the administrative branch of
Government. The agencies of Government have usurped power unimagined by
the authors of the Constitution. Administrative justice is a great
bureaucracy, independent of the legal judiciary.
Regulations are written yearly by the thousands of pages, read by few
and understood by no one. This is done intentionally to intimidate and
harass the people. It is used as a political tool for selective
prosecution. Regulations can favor certain industries while destroying
others and providing great accumulation of wealth for the
beneficiaries.
Exemption from prosecution of some companies while others are pursued
has
[[Page H6713]]
destroyed many good industries and companies. Prosecution in the
administrative courts requires great sums of money for self-defense.
Juries are not available, and one is considered guilty until proven
otherwise. Tragically, economic conditions usually prompt a businessman
to pay the fine regardless of its unfairness to save legal costs.
Fighting the system through political reform is not even a serious
consideration. Those who could consider such a struggle are ridiculed
as idealistic and unrealistic.
A powerful political action committee and a shrewd lobbyist are today
considered the best investments. Since we have lived with massive
bureaucracy for over 50 years, most citizens uneducated in the ways of
equal justice, equal rights, and freedom, are unaware of any other
system. By writing regulations with the force of law and administrative
justice, interpretations, and enforcement of these laws, the
administrative judiciary rulers have made a mockery of article I,
section 1, of the Constitution.
Whether it is in the regular courts or the administrative courts,
judges who grew up under the welfare ethic rarely concern themselves
with the right to own and control the fruits of one's own labor. The
rights of society, as they see it, preclude what they claim is a narrow
self-interest: The individual.
Spooner argued eloquently for the right of the jury to pass final
judgment on all laws, the moral intent of the law, the
constitutionality of the law, the facts of the case, and the moral
intent of the accused. Spooner's argument for allowing such
responsibility to rest with the accused peers is that delegating
responsibility only to the Representatives in Washington was fraught
with danger. He was convinced that all government officials were
untrustworthy and susceptible to bribery and that removal of our
elected Representatives in the next election was not sufficient to
protect the people from unwise and meddling legislation.
If we had heeded the admonitions of Lysander Spooner, we would not be
faced with this crisis. Spooner began his essay on ``Trial by Jury'' by
clearly stating the importance of the jury's responsibility to judge
the law as well as the facts in the case.
Quoting, ``For more than 600 years, that is since the Magna Carta, in
1215, there has been no clearer principle of English or American
constitutional law than that in criminal cases. It is not only the
right and duty of jurors to judge what are the facts, what is the law,
and what was the moral intent of the accused, but it is also their
right and their primary and paramount duty to judge the justice of the
law and to hold all laws invalid that are, in their opinion, unjust or
oppressive, and all persons guiltless in violating or resisting the
execution of such laws,'' closed quote.
If a law is assumed to be correct constitutionally and morally merely
because it is a law written by our chosen Representatives, Spooner
argued that Government can give itself dictatorial powers, and that is
exactly what has happened with the massive powers delegated to the
President under the Emergency Powers Act: Power sitting there to be
grabbed and used at the hint of a crisis.
Spooner saw the jury as the last guard against such usurpation of the
people's rights. Sadly, that protection is just about gone. The
citizens of this country ought to restore the principle of trial by
jury to its rightful place of importance. It could go a long way in
reducing the burden of Government now consuming more than half the
energy of each working American.
The time has come to stop the systematic attack on individual liberty
pervasive throughout the 20th century. The Constitution must prevail.
If we in the Congress fail to abide by the original intent of the
Constitution, the last hope will remain with the people and the jurors.
____________________