[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.

                          ____________________