[Congressional Record Volume 146, Number 49 (Wednesday, April 26, 2000)]
[Senate]
[Pages S2910-S2930]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, I ask unanimous consent to yield my time to
the distinguished senior Senator from West Virginia.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from West Virginia.
Mr. BYRD. Mr. President, I have listened to the comments by my
colleagues, those who are proponents of the proposed constitutional
amendment before the Senate, and I have listened to the comments of
many of my colleagues who have spoken in opposition to the proposed
amendment. I compliment both sides on the debate. I think it is an
enlightening debate.
I will have more to say if the motion to proceed is agreed to.
In view of the statements that have been made by several of those who
are opposed to the amendment--the Senator from New York (Mr. Schumer),
the Senator from Illinois (Mr. Durbin), and the Senator from
Connecticut (Mr. Dodd), and others, they have cogently and succinctly
expressed my sentiments in opposition to the amendment.
I congratulate the Senator from Vermont, Mr. Leahy, on his statements
in opposition thereto, as well as the leadership he has demonstrated
not only on this proposed constitutional amendment but also in
reference to other constitutional amendments before the Senate in
recent days and in years past. He is a dedicated Senator in every
respect. He certainly is dedicated to this Federal Constitution and
very ably defends the Constitution.
I do not say that our Constitution is static. John Marshall said it
was a Constitution that was meant for the ages. I will go into that
more deeply later. At a later date, I will address this particular
amendment.
But having been a Member of the Congress now going on 48 years, I may
not be an expert on the Constitution, but I have become an expert
observer of what is happening in this Congress and its predecessor
Congresses, and an observer of what is happening by way of the
Constitution. I consider myself to be as much an expert in that regard
as anybody living because I have been around longer than most people. I
have now been a Member of Congress, including both Houses, longer than
any other Member of the 535 Members of Congress today.
I must say that I am very concerned about the cavalierness which I
have observed with respect to the offering of constitutional
amendments. There seems to be a cavalier spirit abroad which seems to
say that if it is good politically, if it sounds good politically, if
it looks good politically, if it will get votes, let's introduce an
amendment to the Constitution. I am not saying that with respect to
proponents of this amendment, but, in my own judgment, I have seen a
lot of that going on.
I don't think there is, generally speaking, a clear understanding and
appreciation of American constitutionalism. I don't think there is an
understanding of where the roots of this Constitution go. I don't think
there is an appreciation for the fact that the roots of this
Constitution go 1,000 years or more back into antiquity. I do not
address this proposed constitutional amendment as something that is
necessary, nor do I address this, the Constitution today, as something
that just goes back to the year 1787, 212 years ago.
The Constitution was written by men who had ample experience, who
benefited by their experience as former Governors, as former members of
their State legislatures, as former members of the colonial
legislatures which preceded the State legislatures, as former Members
of the Continental Congress which began in 1794, as Members of the
Congress under the Articles of Confederation which became effective in
1781. Some of the members of the convention came from England, from
Scotland, from Ireland. Alexander Hamilton was born in the West Indies.
These men were very well acquainted with the experiences of the
colonialists. They were very much aware of the weaknesses, the flaws in
the Articles of Confederation. They understood the State constitutions.
Most of the 13 State constitutions were written in the years 1776 and
1777. Many of the men who sat in the Constitutional Convention of 1787
had helped to create those State constitutions of 1776 and 1777 and
subsequent thereto. Many of them had experience on the bench. They had
experiences in dealing with Great Britain during and prior to the
American Revolution. Some of them had fought in Gen. George
Washington's polyglot, motley army. These men came with great
experience. Franklin was 81 years
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old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris,
was 35. Madison was 36. They were young in years, but they had
tremendous experience back of those years.
So the Constitution carries with it the lessons of the experiences of
the men who wrote it. They were steeped in the classics. They were
steeped in ancient history. They knew about Polybius. They knew how he
wrote about mixed government. They knew what Herodotus had to say about
mixed government. They knew what other great Greek and Roman authors of
history had learned by experience, centuries before the 18th century.
They knew about the oppression of tyrannical English monarchs. They
knew the importance of the English Constitution, of the Magna Carta, of
the English Bill of Rights in 1689. They knew about the English
Petition of Right in 1628. All of these were parts of the English
Constitution, an unwritten Constitution except for those documents,
some of which I have named--the Petition of Right, the Magna Carta, the
decisions of English courts, and English statutes.
So to stand here and say, in essence, that the Constitution reflects
the viewpoints of the men who wrote that Constitution in 1787, or only
reflects the views of our American predecessors of 1789, or those who
ratified the Constitution in 1790 or in 1791, is only a partial truth.
The roots of this Constitution--a copy of which I hold in my hand--go
back 1,000 years, long before 1787, long before 1791 when the first 10
amendments which constitute the American Bill of Rights were ratified.
That was only a milestone along the way--1787, 1791. These were mere
milestones along the way to the real truths, the real values that are
in this Constitution, a copy of which I hold in my hand. Those are only
milestones along the way, far beyond 1787, far beyond 1776 or 1775 or
1774. Why was that revolution fought? Why did our forbears take stand
there on the field of Lexington, on April 19, and shed their blood? Why
was that revolution fought? It was fought on behalf of liberty. That is
what this Constitution is all about--liberty, the rights of a free
people, the liberties of a free people. Liberty, freedom from
oppression, freedom from oppressive government, that is why they shed
their blood at Lexington and at Bunker Hill and at Kings Mountain and
at Valley Forge, down through the decades and the centuries. The blood
of Englishmen was spilled centuries earlier in the interests of
liberty, in the interests of freedom: Freedom of the press, freedom to
speak, freedom to stand on their feet in Parliament and speak out
against the King, freedom from the oppression of the heavy hand of
government. That is what that Constitution is about.
There are those who think that the Constitution sprang from the great
minds of those 39 men who signed the Constitution at the Convention, of
the 55 who attended the meetings of the Convention--some believe that
it sprang from their minds right on the spot. Some believe that it
came, like manna from Heaven, fell into their arms. It sprang like
Minerva from the brain of Jove. That is what they think.
No, I say a miracle happened at Philadelphia, but that was not the
miracle. The miracle that occurred at Philadelphia was the miracle that
these minds of illustrious men gathered at a given point in time, at
Philadelphia, and over a period of 116 days wrote this Constitution. It
could not have happened 5 years earlier because they were not ready for
it. Their experiences of living under the Articles of Confederation had
not yet ripened to a point where they were ready to accept the fact
that there had to be a new government, a new constitution written. And
it could not have happened 5 years later because the violence that they
saw in France, as the guillotine claimed life after life after life,
had not yet happened. Some 5 years later, they would have seen that
violence of the French Revolution, and they would have recoiled in
horror from it.
The writing of this Constitution happened at the right time, at the
right place, and it was written by the right men. That was the miracle
of Philadelphia.
Here we are today talking about amending it, this great document, the
greatest document of its kind that was ever written in the history of
the world. There is nothing to compare it with, by way of man-made
documents. Who would attempt to amend the Ten Commandments that were
handed down to Moses? Not I. Yet, we, little pygmies on this great
stage, before the world, would attempt to pit our talents and our
wisdom against the talents and wisdom, the experience and the
viewpoints of men such as George Washington, James Madison, Alexander
Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James
Wilson, Roger Sherman? In article V of this Constitution, they had the
foresight to write the standard. If we want to find the standard for
this Constitutional amendment, or any other Constitutional amendment
here is the standard in the Constitution itself.
The Congress, whenever two-thirds of both Houses shall deem
it necessary--
The Congress, whenever two thirds of both Houses shall deem it
necessary--
shall propose Amendments. . . .
I don't say that the Constitution is static. I don't say it never
should be amended. I would vote for a constitutional amendment if I
deemed it ``necessary.'' Certainly, I do not see this proposed
amendment as necessary, but I will have more to say about that later.
I don't say that the Constitution is perfect. I do say that there is
no other comparable document in the world that has ever been created by
man. And when that Constitution uses the word ``necessary,'' it means
``necessary,'' because no word in that Constitution was just put into
that document as a place filler.
I do think this is a time that I might speak a little about the
constitutionalism behind the American Constitution. I think it might be
well for anyone who might be patient enough or interested enough, to
hear what I am going to say, because I don't think enough people
understand the Constitution. I am sure they don't understand the roots
of the Constitution. They don't understand American constitutionalism.
It is a unique constitutionalism, the American constitutionalism. I
don't think most people understand it.
In response to a recent nationwide poll, 91 percent of the
respondents agreed with this statement: ``The U.S. Constitution is
important to me.''
Mr. President, 91 percent of the respondents agreed to that: ``The
U.S. Constitution is important to me.'' Yet only 19 percent of the
people polled knew that the Constitution was written in 1787; only 66
percent recognized the first 10 amendments to the Constitution as the
Bill of Rights--only 66 percent. Only 58 percent answered correctly
that there were three branches of the Federal Government; 17 percent
were able to recall that freedom of assembly is guaranteed by the first
amendment to the Constitution--17 percent, 17 percent. Yet you see them
out here all the time, on the Capitol steps, assembling, petitioning
the Government for a redress of what they conceive to be grievances.
They know they have that right, but only 17 percent were able to recall
that freedom of assembly is guaranteed by the first amendment to the
Constitution.
Only 7 percent remembered that the Constitution was written at the
Constitutional Convention; 85 percent believed that the Constitution
stated that ``All men are created equal''--or failed to answer the
question; and only 58 percent agreed that the following statement is
false: ``The Constitution states that the first language of the U.S. is
English.''
The American people love the Constitution. They believe the
Constitution is good for them collectively and individually, but they
do not understand much about it. And the same can be said with respect
to constitutionalism. The same can be said with respect to the Members
of Congress; that means both Houses. Not a huge number, I would wager,
of the Members of the Congress of both Houses know a great deal about
the Constitution. How many of them have ever read it twice?
Each of us takes an oath to support and defend the Constitution of
the United States every time we are elected or reelected. We stand
right up at that desk with our hand on the Bible--at least that is the
image people have of us--and we swear in the presence of men and
Almighty God to support and defend that Constitution. How many of us
have read it twice? How many of us
[[Page S2912]]
really know what is in that Constitution? And yet we will suggest
amendments to it.
With 91 percent of the people polled agreeing that the U.S.
Constitution is important to themselves, it is a sad commentary that
this national poll would reveal that so many of these same Americans
are so hugely ignorant of their Constitution and of the American
history that is relevant thereto.
Let us think together for a little while about this marvelous
Constitution, its roots and origins and, in essence, the genesis of
American constitutionalism--a subject about which volumes have been
written and will continue to be written. It is with temerity that I
would venture to expound upon such a grand subject, but I do so with a
full awareness of my own limited knowledge and capabilities in this
respect, which I freely admit, and for which I just as freely
apologize. Nonetheless, let us have at it because the clock is running
and time stops for no one, not even a modern day Joshua.
Was Gladstone correct in his reputed declaration that the
Constitution was ``the most wonderful work ever struck off at a given
time by the brain and purpose of man''? Well, hardly.
In 1787, the only written constitutions in the world existed in
English-speaking America, where there were 13 State constitutions and a
constitution for the Confederation of the States, which was agreed upon
and ratified in 1781. That was our first National Constitution.
Americans were the heirs of a constitutional tradition that was mature
by the time of the Convention that met in Philadelphia. Americans had
tested that tradition between 1776 and 1787 by writing eleven of the
State constitutions and the Articles of Confederation. Later, with the
writing of the United States Constitution, they brought to completion
the tradition of constitutional design that had begun a century and a-
half or two centuries earlier.
So when someone stands here and says that this Constitution just
represents what those people of 1789 or 1787 or 1791 believed, what
they thought, then I say we had better stop, look, and listen. The work
of the Framers brought to completion the tradition of constitutional
design that had begun a century and a half or two centuries earlier
right here in America.
Let us move back in point of time and attempt to trace the roots of
what is in this great organic document, the Constitution of the United
States. Looking back, the search--we are going backward in time now--
takes us first to the Articles of Confederation. A lot of people in
this country do not know that the Articles of Confederation ever
existed. They have forgotten about them. They never hear about them
anymore. And then to the earliest State constitutions, and back of
these--going back, back in point of time--were the colonial foundation
documents that are essentially constitutional, such as the Pilgrim Code
of Law, and then to the proto-constitutions, such as the Fundamental
Orders of Connecticut and the Mayflower Compact. As one scholar, Donald
S. Lutz, has noted:
The political covenants written by English colonists in
America lead us to the church covenants written by radical
Protestants in the late 1500's and early 1600's, and these in
turn lead us back to the Covenant tradition of the Old
Testament.
It is appropriate, for our purposes here to focus for a short time on
those Old Testament covenant traditions because they were familiar not
only to the early settlers from Europe--your forebears and mine--but
also to the learned men who framed the United States Constitution.
In the book of Genesis we are told that the Lord appeared to Abram
saying: ``Get thee out of thy country, and from thy kindred, and from
thy father's house, unto a land that I will show thee: and I will make
of thee a great nation, and I will bless thee, and make thy name
great;'' (Genesis 12:1,2)
In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me,
behold, my covenant is with thee, and thou shalt be a father of many
nations. Neither shall thy name any more be called Abram, but thy name
shall be Abraham; for a father of many nations have I made thee. . . .
And I will make nations of thee, and kings shall come out of thee. And
I will establish my covenant between me and thee and thy seed after
thee in their generations for an everlasting covenant, to be a God unto
thee, and to thy seed after thee.''
Again, speaking to Abraham, God said: ``This is my covenant, which ye
shall keep, between me and you and thy seed after thee; Every man child
among you shall be circumcised.'' (Genesis 17:10)
The Abrahamic covenant was confirmed upon subsequent occasions, one
of which occurred after Abraham had prepared to offer Isaac, his son,
as a burnt offering in obedience to God's command, at which time an
angel of the Lord called out from heaven and commanded Abraham, ``Lay
not thine hand upon the lad, . . . for now I know that thou fearest
God.'' (Genesis 22:12)
The Lord then spoke to Abraham saying, ``I will bless thee, and in
multiplying, I will multiply thy seed as the stars of the heaven, and
as the sand which is upon the sea shore . . . because thou hast obeyed
my voice.'' (Genesis 22:17,18)
God's covenant with Abraham was later confirmed in an appearance
before Isaac, saying: ``Go not down into Egypt; dwell in the land which
I shall tell thee of.'' Sojourn (see Gen. 26:3-5)
God subsequently confirmed and renewed this covenant with Jacob, as
he slept with his head upon stones for his pillows and dreamed of a
ladder set upon the earth, and the top of it reached to heaven, with
angels of God ascending and descending on it. God spoke, saying: ``I am
the Lord God of Abraham, . . . and the God of Isaac: the land whereon
thou liest, to thee will I give it, and to thy seed; and thy seed shall
be as the dust of the earth . . . and in thee and in thy seed shall all
the families of the earth be blessed.'' (Genesis 28:11-14)
At Bethel, in the land of Canaan, Jacob built an altar to God, and
God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall
not be called any more Jacob, but Israel shall be thy name.'' And God
said unto him, ``I am God almighty: be fruitful and multiply; a nation
and a company of nations shall be of thee, and kings shall come out of
thy loins; and the land which I gave Abraham and Isaac, to thee I will
give it, and to thy seed after thee will I give the land.'' (Genesis
35:10,11)
The book of Exodus takes up where Genesis leaves off, and we find
that the descendants of Jacob had become a nation of slaves in Egypt.
After a sojourn that lasted 430 years, God then brought the Israelites
out of Egypt that he might bring them as his own prepared people into
the Promised Land. Exodus deals with the birth of a nation, and all
subsequent Hebrew history looks back to Exodus as the compilation of
the acts of God that constituted the Hebrews a nation.
Thus far, we have seen the successive covenants entered into between
God and Abraham and between God and Isaac and between God and Jacob; we
have seen the creation of a nation through what might be described as a
federation--there is the first system of federalism--a federation of
the 12 tribes of Israel, the 12 sons of Jacob having been recognized as
the patriarchs of their respective tribes.
Joshua succeeded Moses as leader of the Israelites. Then came the
prophets and the judges of Israel, and the turmoils of the divided
kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and
the kingship of David followed. Thus we see the establishment of a
monarchy.
God covenanted with David, speaking to him through Nathan the
prophet, and God promised to raise up David's seed after his death,
according to which a son would be born of David, whose name would be
Solomon. Furthermore, Solomon would build a house for the Lord and
would receive wisdom and understanding. The Ark of the Covenant of the
Lord, and the holy vessels of God, would be brought into the sanctuary
that was to be built to the name of the Lord.
Now I have spoken of the creation of the Hebrew nation, and not
without good reason. The American constitutional tradition derives much
of its form and much of its content from the Judeo-Christian tradition
as interpreted by the radical Protestant sects to which belonged so
many of the original European settlers in British North America.
Donald S. Lutz, in his work entitled ``The Origins of American
Constitutionalism'', says: ``The tribes of Israel
[[Page S2913]]
shared a covenant that made them a nation. American federalism
originated at least in part in the dissenting Protestants' familiarity
with the Bible''.
The early Calvinist settlers who came to this country from the Old
World brought with them a familiarity with the Old Testament covenants
that made them especially apt in the formation of colonial documents
and state constitutions.
Winton U. Solberg tells us that in 17th-century colonial thought,
divine law, a fusion of the law of nature in the Old and New
Testaments, usually stood as fundamental law. The Mayflower Compact--we
have all heard of that--the Mayflower Compact exemplified the Doctrine
of Covenant or Contract. Puritanism exalted the biblical component and
drew on certain scriptural passages for a theological outlook. Called
the Covenant or Federal Theology, this was a theory of contract
regarding man's relations with God and the nature of church and state.
Man was deemed an impotent sinner until he received God's grace, and
then he became the material out of which sacred and civil communities
were built.
Another factor that contributed to the knowledge of the colonists and
to their experience in the formation of local governments, was the
typical charter from the English Crown. These charters generally
required that the colonists pledge their loyalty to the Crown, but left
up to them, the colonists, the formation of local governments as long
as the laws which the colonists established comported with, and were
not repugnant to, the laws of England. Boards of Directors in England
nominally controlled the colonies. The fact that the colonies were
operating thousands of miles away from the British Isles, together with
the fact that the British Government was so involved in a bloody civil
war, made it possible for the American colonies to operate and evolve
with much greater freedom and latitude than would otherwise have been
the case. The experiences gained by the colonists in writing documents
that formed the basis for local governments, and the benefits that
flowed from experience in the administration of those colonial
governments, contributed greatly to the reservoir of understanding of
politics and constitutional principles developed by the Framers.
Although the Constitution makes no specific mention of federalism,
the federal system of 1787 was not something new to the Framers.
Compacts had long been used as a device to knit settlements together.
For example, the Fundamental Orders of Connecticut, 1639, established a
Common government for the towns of Hartford, Windsor, and Wethersfield,
while each town government remained intact. In 1642, the towns of
Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a
compact known as the Organization of the Government of Rhode Island, a
federation which became a united colony under the 1663 Rhode Island
Charter. The New England Confederation of 1643 was a compact for
uniting the colonies of Massachusetts, Connecticut, Plymouth, and New
Haven, each of which was comprised of several towns that maintained
their respective governments intact.
Thus, the Framers were guided by a long experience with federalism or
confederalism, including the Articles of Confederation--an experience
that was helpful in devising the new national federal system.
Lutz says that the states, in writing new constitutions in the 1770s,
``drew heavily upon their respective colonial experience and
institutions. In American constitutionalism, there was more continuity
and from an earlier date than is generally credited.''
That is why I am here today speaking on this subject. Let it be
heard. Let it be known that the roots of this Constitution go farther
back than 1787, farther back than its ratification in 1791--farther
back. They were writing based on historical experiences that went back
1,000 years, before the Magna Carta, back to the Anglo-Saxons, back
another 2,000 years, back another 1,500 years, back to the federalism
of the Jewish tribes of Israel and Judah. Wake up. This Constitution
wasn't just born yesterday or in 1787. Let us go back to history. Let
us study the history of American constitutionalism, its roots, how men
suffered under oppressive governments. Then we will have a little
better understanding of this Constitution. No, the Constitution is not
static. History is not static. The journey of mankind over the
centuries is not static. We can always learn from history.
To what extent were the Framers influenced by political theorists and
republican spokesmen from Britain and the Continent? According to
Solberg, republican spokesmen in England constituted an important link
on the road to the realization of a republic in the United States.
I hear Senators stand on this floor and say that we live in a
democracy. This is not a democracy. This is a republic. You don't have
to believe Robert C. Byrd. Go to Madison, go to ``The Federalist
Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of
you who are listening--and you will find the definition of a democracy
and the definition of a republic. You will find the difference between
the two.
John Milton, whose literary accomplishments and Puritanism assured
him of notice in the colonies, was significant for the views expressed
in his political writings. He supported the sovereign power of the
people, argued for freedom of publications, and justified the death
penalty for tyrants.
English political thinkers who influenced American constitutionalism
and who exerted an important influence in the colonies were
Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke.
And there were others.
John Locke may be said to have symbolized the dominant political
tradition in America down to and in the convention of 1787.
Locke equated property with ``life, liberty, and estate'' and was the
crucial right on which man's development depends. Nature, Locke
thought, creates rights. Society and government are only auxiliaries
which arise when men consent to create them in order to preserve
property in the larger sense, and a community calls government into
being to secure additional protection for existing rights. As
representatives of the people, the legislature is supreme but is itself
controlled by the fundamental law. Locke limits government by
separating the legislative and administrative functions of government
to the end that power may not be monopolized. That is assured by our
Constitution also. The people possess the ultimate right of resisting a
government which abuses its delegated powers. Such a violation of the
contract justified the community in resuming authority.
David Hume dealt with the problem of faction in a large republic, and
promoted the device of fragmenting election districts. Madison, when
faced with the same problem in preparing for the federal convention,
supported the idea of an extended republic--drawing upon Hume's
solution.
Blackstone's view was that Parliament was supreme in the British
system and that the locus of sovereignty was in the lawmaking body. His
absolute doctrine was summed up in the aphorism that ``Parliament can
do anything except make a man a woman or a woman a man.''
His ``Commentaries on the Laws of England'' was the most complete
survey of the English legal system ever composed by a single hand. The
commentaries occupied a crucial role in legal education, and many of
Blackstone's ideas were uppermost on American soil from 1776 to 1787,
with vital significance for constitutional development both in the
states and in Philadelphia. Although delegates to the convention
acknowledged Blackstone as the preeminent authority on English law,
they, nevertheless, succeeded in separating themselves from some of his
other views.
James Harrington's ``Oceana'' presented a republican constitution for
England in the guise of a utopia. He concluded that since power does
follow property, especially landed property, the stability of society
depends on political representation reflecting the actual ownership of
property. The distinguishing feature of Harrington's commonwealth was
``an empire of laws and not of men.'' Harrington proposed an elective
ballot, rotation in office, indirect election, and a two-chamber
legislature.
This goes back a long way, doesn't it?
[[Page S2914]]
Harrington proposed legislative bicameralism as a precaution against
the dangers of extreme democracy, even in a commonwealth in which
property ownership was widespread. He argued that a small and
conservative Senate should be able to initiate and discuss but not
decide measures, whereas a large and popular house should resolve for
or against these without discussion.
These were novel but significant ideas that became influential in
America, in this country, before 1787. John Adams was an ardent
disciple of Harrington's views.
James Harrington was the modern advocate of mixed government most
influential in America. That is what ours is. The government of his
``Oceana'' consisted of a Senate which represented the aristocracy; a
huge assembly elected by the common people, thus representing a
democracy; and an executive, representing the monarchical element, to
provide a balancing of power.
Harrington's respect for mixed government was shared by Algernon
Sidney, who declared: ``There never was a good government in the world
that did not consist of the three simple species of monarchy,
aristocracy, and democracy.''
The mixed government theorists saw the British king, the House of
Lords, and the House of Commons as an example of a successful mixed
government.
The notion of mixed government goes all the way back to Herodotus,
and who knows how far beyond. It was a notion that had been around for
several centuries. Herodotus in his writings concerning Persia had
expounded on the idea, but it had lost popularity until it was revived
by the historian Polybius who lived between the years circa 205-125
B.C. It was a governmental form that pitted the organs of government
representing monarchy, aristocracy, and democracy against each other to
achieve balance and, thus, stability. The practice of mixed government
collapsed along with the Roman Republic, but the doctrine was revived
in 17th century England--now we are getting closer--from which it
passed to the New World. Those who wrote the Constitution weren't just
writing based on the experiences of their time.
Let us turn now to a consideration of the renowned French philosopher
and writer, Montesquieu. Montesquieu had a considerable impact upon the
political thinking of our constitutional Framers. They were conversant
with the political theory and philosophy of Montesquieu, who was born
1689--a hundred years before our Republic was formed--and died in 1755.
He died just 32 years before our constitutional forebears met in
Philadelphia.
Americans of the Revolutionary period were well acquainted with the
philosophical and political writings of Montesquieu in reference to the
separation of powers, and John Adams was particularly strong in
supporting the doctrine of separation of powers in a mixed government.
Montesquieu advocated the principle of separation of powers. He
possessed a belief, which was faulty, that a huge territory did not
lend itself to a large republic. He believed that government in a vast
expanse of territory would require force and this would lead to
tyranny.
He believed that the judicial, executive, and legislative powers
should be separated. If they were kept separated, the result would be
political freedom, but if these various powers were concentrated in one
man, as in his native France, then the result would be tyranny.
Montesquieu visited the more important and larger political divisions
of Europe and spent a considerable time in England. His extensive
English connections had a strong influence on the development of his
political philosophy.
We are acquainted with his ``Spirit of the Laws'' and with his
``Persian Letters,'' but perhaps we are not so familiar with the fact
that he also wrote an analysis of the history of the Romans and the
Roman state. This essay, titled ``Considerations on the Causes of the
Greatness of the Romans and their Decline,'' was produced in 1734.
Considering the fact that Montesquieu was so deeply impressed with
the ancient Romans and their system of government, and in further
consideration of his influence upon the thinking of the Framers and
upon the thinking of educated Americans generally during the period of
the American Revolution, let us consider the Roman system as it was
seen by Polybius, the Greek historian, who lived in Rome from 168 B.C.,
following the battle of Pydna, until after 150 B.C., at a time when the
Roman Republic was at a pinnacle of majesty that excited his admiration
and comment.
Years later, Adams recalled that the writings of Polybius ``Were in
the contemplation of those who framed the American Constitution.''
Polybius provided the most detailed analysis of mixed government
theory. He agreed that the best constitution assigned approximately
equal amounts of power to the three orders of society and explained
that only a mixed government could circumvent the cycle of discord
which was the inevitable product of the simple forms.
Polybius saw the cycle as beginning when primitive man, suffering
from violence, privation, and fear, consented to be ruled by a strong
and brave leader. When the son was chosen to succeed this leader, in
the expectation that the son's lineage would lead him to emulate his
father, the son, having been accustomed to a special status from birth,
was lacking in a sense of duty to the public and, after acquiring
power, sought to distinguish himself from the rest of the people. Thus,
monarchy deteriorated into tyranny. The tyranny then would be
overturned by the noblest of aristocrats who were willing to risk their
lives. The people naturally chose them to succeed the king as ruler,
the result being ``ruled by the best,''--an aristocracy.
Soon, however, aristocracy deteriorated into oligarchy because, in
time, the aristocrats' children placed their own welfare above the
welfare of the people. A democracy was created when the oppressed
people rebelled against the oligarchy. But in a democracy, the wealthy
corrupted the people with bribes and created faction in order to raise
themselves above the common level in the search for status and
privilege and additional wealth. Violence then resulted and ochlocracy
(mob rule) came into being.
As the chaos mounted to epic proportions, the people's sentiment grew
in the direction of a dictatorship, and monarchy reappeared. Polybius
believed that this cycle would repeat itself over and over again
indefinitely until the eyes of the people opened to the wisdom of
balancing the power of the three orders. Polybius considered the Roman
Republic to be the most outstanding example of mixed government.
Polybius viewed the Roman Constitution as having three elements: the
executive, the Senate, and the people; with their respective shares of
power in the state regulated by a scrupulous regard to equality and
equilibrium.
Let us examine this separation of powers in the Roman Republic as
explained by Polybius. The consuls--representing the executive--were
the supreme masters of the administration of the government when
remaining in Rome. All of the other magistrates, except the tribunes,
were under the consuls and took their orders from the consuls. The
consuls brought matters before the Senate that required its
deliberation, and they saw to the execution of the Senate's decrees. In
matters requiring the authorization of the people, a consul summoned
the popular meetings, presented the proposals for their decision, and
carried out the decrees of the majority. The majority rules.
In matters of war, the consuls imposed such levies upon manpower as
the consuls deemed appropriate, and made up the roll for soldiers and
selected those who were suitable. Consuls had absolute power to inflict
punishment upon all who were under their command, and had all but
absolute power in the conduct of military campaigns.
As to the Senate, it had complete control over the treasury, and it
regulated receipts and disbursements alike. The quaestors (or
secretaries of the treasury) could not issue any public money to the
various departments of the state without a decree of the Senate. The
Senate also controlled the money for the repair and construction of
public works and public buildings throughout Italy, and this money
could not be obtained by the censors, who oversaw the contracts for
public works and public buildings, except by the grant of the Senate.
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The Senate also had jurisdiction over all crimes in Italy requiring a
public investigation, such as treason, conspiracy, poisoning, or
willful murder, as well as controversies between and among allied
states. Receptions for ambassadors, and matters affecting foreign
states, were the business of the Senate.
What part of the Constitution was left to the people? The people
participated in the ratification of treaties and alliances, and decided
questions of war and peace. The people passed and repealed laws--
subject to the Senate's veto--and bestowed public offices on the
deserving, which, according to Polybius, ``are the most honorable
rewards for virtue.''
Polybius, having described the separation of powers under the Roman
Constitution, how did the three parts of state check and balance each
other? Polybius explained the checks and balances of the Roman
Constitution, as he had observed them first hand. Remember, he was
living in Rome at the time.
What were the checks upon the consul, the executive? The consul--
whose power over the administration of the government when in the city,
and over the military when in the field, appeared absolute--still had
need of the support of the Senate and the people. The consul needed
supplies for his legions, but without a decree of the Senate, his
soldiers could be supplied with neither corn nor clothes nor pay.
Moreover, all of his plans would be futile if the Senate shrank from
danger, or if the Senate opposed his plans or sought to hamper them.
Therefore, whether the consul could bring any undertaking to a
successful conclusion depended upon the Senate, which had the absolute
power, at the end of the consul's one-year term, to replace him with
another consul or to extend his command or his tenure.
The consuls were also obliged to court the favor of the people, so
here is the check of the people against the consuls, for it was the
people who would ratify, or refuse to ratify, the terms of peace. But
most of all, the consuls, when laying down their office at the
conclusion of their one-year term, would have to give an accounting of
their administration, both to the Senate and to the people. It was
necessary, therefore, that the consuls maintain the good will of both
the Senate and the people.
What were the checks against the Senate? The Senate was obliged to
take the multitude into account and respect the wishes of the people,
for in matters directly affecting the Senators--for instance, in the
case of a law diminishing the Senate's traditional authority, or
depriving Senators of certain dignities, or even actually reducing the
property of Senators--in such cases, the people had the power to pass
or reject the laws of the Assembly.
In addition, according to Polybius, if the tribunes imposed their
veto, the Senate would not only be unable to pass a decree, but could
not even hold a meeting. And because the tribunes must always have a
regard for the people's wishes, the Senate could not neglect the
feelings of the multitude.
But as a counter balance, what check was there against the people? We
have seen certain checks against the consul; we have described some of
the checks against the Senate. What about the people? According to
Polybius, the people were far from being independent of the Senate, and
were bound to take its wishes into account, both collectively and
individually.
For example, contracts were given out in all parts of Italy by the
censors for the repair and construction of public works and public
buildings. Then there was the matter of the collection of revenues from
rivers and harbors and mines and land--everything, in a word, that came
under the control of the Roman government. In all of these things, the
people were engaged, either as contractors or as pledging their
property as security for the contractors, or in selling supplies or
making loans to the contractors, or as engaging in the work and in the
employ of the contractors.
Over all of these transactions, says Polybius, the Senate ``has
complete control.'' For example, it could extend the time on a contract
and thus assist the contractors; or, in the case of unforeseen
accident, it could relieve the contractors of a portion of their
obligation, or it could even release them altogether if they were
absolutely unable to fulfill the contract. Thus, there were many ways
in which the Senate could inflict great hardships upon the contractors,
or, on the other hand, grant great indulgences to the contractors. But
in every case, the appeal was to the Senate.
Moreover, the judges were selected from the Senate, at the time of
Polybius, for the majority of trials in which the charges were heavy.
Consequently, the people were cautious about resisting or actively
opposing the will of the Senate, because they were uncertain as to when
they might need the Senate's aid. For a similar reason, the people did
not rashly resist the will of the consuls because one and all might, in
one way or another, become subject to the absolute power of the consuls
at some point in time.
Polybius had spoken of a regular cycle of constitutional revolution,
and the natural order in which constitutions change, are transformed,
and then return again to their original stage. Plato on the same line,
had arranged six classifications in pairs: kingship would degenerate
into tyranny; aristocracy would degenerate into oligarchy; and
democracy would degenerate into violence and mob rule--after which, the
cycle would begin all over again. Aristotle had had a similar
classification.
According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the
9th century B.C.--was fully aware of these changes, and accordingly
combined together all of the excellences and distinctive features of
the best constitutions, in order that no part should become unduly
predominant and be perverted into its kindred vice; and that, each
power being checked by the others, no one part should turn the scale or
decisively overbalance the others; but that, by being accurately
adjusted and in exact equilibrium, ``the whole might remain long steady
like a ship sailing close to the wind.''
Polybius summed it up in this way:
When any one of the three classes becomes puffed up, and
manifests an inclination to be contentious and unduly
encroaching, the mutual interdependency of all the three, and
the possibility of the pretensions of any one being checked
and thwarted by the others, must plainly check this tendency.
And so the proper equilibrium is maintained by the
impulsiveness of the one part being checked by its fear of
the other.
Polybius' account may not have been an exact representation of the
true state of the Roman system, but he was on the scene, and he was
writing to tell us what he saw with his own eyes, not through the eyes
of someone else. What better witness could we have?
Mr. President, before the Convention was assembled, Madison studied
the histories of all these ancient people--the different kinds of
governments--aristocracy, oligarchy, monarchy, democracy, and republic.
He prepared himself for this Convention. And there were others in that
Convention who were very well prepared also--James Wilson, Dr. William
Samuel Johnson, and others.
The theory of a mixed constitution had had its great measure of
success in the Roman Republic. It is not surprising then, that the
Founding Fathers of the United States should have been familiar with
the works of Polybius, or that Montesquieu should have been influenced
by the checks and balances and separation of powers in the Roman
constitutional system, a clear and central element of which was the
control over the purse, vested solely in the Senate in the heyday of
the Republic.
Were the Framers influenced by the classics?
Every schoolchild and student in the universities learned how to read
and write Greek and Latin. Those were required subjects.
The founders were steeped in the classics, and both the Federalists
and the Anti-federalists resorted to ancient history and classical
writings in their disquisitions. Not only were classical models
invoked; the founders also had their classical ``antimodels''--those
individuals and government forms of antiquity whose vices and faults
they desired to avoid.
Classical philosophers and the theory of natural law were much
discussed during the period prior to and immediately following the
American Revolution. It was a time of great political ferment, and
thousands of circulars,
[[Page S2916]]
pamphlets, and newspaper columns displayed the erudition of Americans
who delighted in classical allusions.
Our forbears were erudite. They circulated their pamphlets and their
newspaper columns. They talked about these things. Who today studies
the classics? Who today studies the different models and forms of
government? Who today writes about them?
The 18th-century educational system provided a rich classical
conditioning for the founders and immersed them with an indispensable
training. They were familiar with Ovid, Homer, Horace, and Virgil, and
they had experienced solid encounters with Tacitus, Thucydides, Livius,
Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos,
as well as Caesar's Gallic Wars. They were undoubtedly influenced by a
thorough knowledge of the vices of Roman emperors, the logic of
orations by Cicero and Demosthenes, and the wisdom and virtue of the
scriptures.
They freely used classical symbols, pseudonyms, and allusions to
communicate through pamphlets and the press. To persuade their readers
they frequently wrapped themselves and their policies in such venerable
classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'',
``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in
number were signed by ``Publius.''
Some of the Anti-federalists dubbed themselves ``Cato,'' while others
called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation
of classical pseudonyms was sometimes used in private discourse for
secret correspondence. George Washington's favorite play was Joseph
Addison's ``Cato'' in which Cato committed suicide rather than submit
to Caesar's occupation of Utica.
In the words of Carl J. Richard, in his book ``The Founders and the
Classics''
It is my contention that the classics exerted a formative
influence upon the founders, both directly and through the
mediation of Whig and American perspectives. The classics
supplied mixed government theory, the principal basis for the
U.S. Constitution. The classics contributed a great deal to
the founders' conception of human nature, their understanding
of the nature and purpose of virtue, and their appreciation
of society's essential role in its production. The classics
offered the founders companionship and solace, emotional
resources necessary for coping with the deaths and disasters
so common in their era. The classics provided the founders
with a sense of identity and purpose, assuring them that
their exertions were part of a grand universal scheme. The
struggles of the Revolutionary and Constitutional periods
gave the founders a sense of kinship with the ancients, a
thrill of excitement at the opportunity to match their
classical heroes' struggles against tyranny and their sage
construction of durable republics. In short, the classics
supplied a large portion of the founders' intellectual tools.
Now, what about the Declaration of Independence?
It was on June 7, 1776, that Richard Henry Lee introduced the
``Resolve'' clause, which was as follows:
Resolved, that these United States Colonies are and of
right ought to be free and independent states, that they are
absolved from all allegiance to the British Crown, and that
all political connection between them and the state of Great
Britain is, and ought to be, totally dissolved.
That it is expedient forthwith to take the most effectual
measures for forming foreign alliances.
That a plan of confederation be prepared and transmitted to
the respective colonies for their consideration and
approbation.
Following the introduction of Lee's resolution, postponement of the
question of independence was delayed until July 1. Nevertheless, on
June 11, Congress appointed a committee made up of Jefferson, John
Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a
declaration. The committee reported on June 28, and, at last, on July
2, Congress decided for independence without a dissenting vote. The
delegates considered the text of the declaration for two additional
days, and adopted changes on July 4 and ordered the document printed.
News that New York had approved on July 9 (the New York Delegates,
having been prevented by instructions from assenting, had theretofore
refrained from balloting) reached Philadelphia on July 15. Four days
later, Congress ordered the statement engrossed. On August 2,
signatures were affixed, although all ``signers'' were not then
present. Inasmuch as the Declaration was an act of treason--for which
any one of those signers or all collectively could have been hanged--
the names subscribed were initially kept secret by Congress. The text
itself was widely publicized.
Those forebearers of ours who had the courage and the fortitude and
the backbone to write the Declaration of Independence, committed an act
of treason for which their properties could have been confiscated,
their rights could have been forfeited, and their lives could have been
taken from them. That is what we are talking about in this
Constitution. Men who not only understood life in their times, but also
understood the cost of liberty, so they pledged their lives, their
fortunes, their sacred honor.
Those were not empty words. Would we have done so?
Much of the Declaration of Independence was derived directly from the
early state constitutions. The things have roots. They didn't come up
like the prophet's gourd overnight. The Declaration contained twenty-
eight charges against the English king justifying the break with
Britain. At least 24 of the charges had also appeared in state
constitutions. New Hampshire, South Carolina, and Virginia, in that
order, adopted the first constitutions of independent states, and these
three state constitutions contained 24 of the 28 charges set forth in
the Declaration. Lists of grievances against George III had appeared in
many of the newspapers, and as far back as May 31, 1775, the
Mecklenburg (North Carolina) Resolves contained the following:
Resolved: that we do hereby declare ourselves a free and
independent people; are and of right ought to be a sovereign
and self-governing association, under the control of no
power, other than that of our God and the general government
of the Congress: to the maintenance of which independence we
solemnly pledge to each other our mutual cooperation, our
lives, our fortunes, and our most sacred honor.
Note that the last sentence of the Declaration of Independence says,
``And for the support of this Declaration, with a firm Reliance on the
Protection of divine Providence, [we are not supposed to teach those
things in our schools today] we mutually pledge to each other our
Lives, our Fortunes, and our sacred Honor.''
Therefore, many of the phrases that were used by Jefferson had
already appeared in various forms in the public print. Jefferson also
borrowed from the phraseology of Virginia's Declaration of Rights
written by George Mason, and adopted by the Virginia Constitutional
Convention in June 1776. In the opening Section of that document, the
following words appear:
That all men are by nature equally free and independent and
have certain inherent rights, of which, when they enter into
a state of society, they cannot, by any compact, deprive or
divest their posterity; namely, the enjoyment of life and
liberty, with the means of acquiring and possessing property,
and pursuing and obtaining happiness and safety.
Mason also stated in the Virginia Declaration of Rights, ``That all
power is vested in, and consequently derived from the people,'' and
that, ``when any government shall be found inadequate or contrary to
these purposes, a majority of the community has and indubitable,
inalienable, and indefeasible right to reform, alter, or abolish it in
such manner as shall be judged most conducive to the public weal.''
Jefferson in the Declaration of Independence, stated that ``All men
are created equal'' and that they were ``endowed by their creator with
certain unalienable rights, that among these are life, liberty, and the
pursuit of happiness--that to secure these rights, governments are
instituted among men, deriving their just powers from the consent of
the governed, that whenever any form of government becomes destructive
of these ends, it is the right of the people to alter or to abolish it,
and to institute new government, laying its foundation on such
principles, and organizing its powers in such form, as to them shall
seem most likely to effect their safety and happiness.''
The last paragraph of the Declaration of Independence states that the
representatives of the United States of America, in general Congress,
assembled, ``Appealing to the supreme judge of the world for the
rectitude of our intention, do, in the name, and by authority of the
good people of these colonies, solemnly publish and declare, that these
United Colonies are, and of right ought to be, free and independent
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states; . . .'' Lutz, whose name I mentioned a few times already, makes
the following comment:
Any document calling on God as a witness would technically
be a covenant. American constitutionalism had its roots in
the covenant form that was secularized into the compact. One
could argue that with God as a witness, the Declaration of
Independence is in fact a covenant. The wording is
peculiar, however, and the form of an oath is present, but
the words stop short of what is normally expected. But the
juxtaposition of a near oath and the words about popular
sovereignty is an intricate dance around the covenant-
compact form. The Declaration of Independence may be a
covenant; it is definitely part of a compact.
As to the words, ``All men are created equal,'' American political
literature was full of statements that the American people considered
themselves and the British people equal. Lutz states, with reference to
this paragraph: `` `Nature's God' activates the religious grounding;
`laws of nature' activate a natural rights theory such as Locke's. The
Declaration thus simultaneously appeals to reason and to revelation as
the basis for the American right to separate from Britain, create a new
and independent people, and be considered equal to any other nation on
earth.''
Now, as to the State Constitutions--I am talking about the roots, the
roots of this Constitution. This Federal Constitution which we are
talking about amending--what about the State Constitutions? Does the
Federal Constitution have any roots in the State Constitutions?
Throughout the spring of 1776 some of the colonies remained
relatively immune to the contagion which prompted others to move toward
independence. This prevented the Continental Congress from breaking
with Britain. To spread the virus, John Adams and Richard Henry Lee
induced the Committee of the Whole to report a resolution which
Congress unanimously adopted on May 10. The resolving clause of that
resolution recommended to the respective assemblies and conventions of
the United Colonies, that, ``where no government sufficient to the
exigencies of their affairs had been hitherto established, to adopt
such government as shall, in the opinion of the representatives of the
people, best conduce to the happiness and safety of their constituents
in particular, and America in general.''
State constitutions were of great significance in the development of
our Federal Constitution and our Federal system of government. When the
Framers met in Philadelphia, they were familiar with the written
constitutions of 13 states, and, as a matter of fact, many of those
Framers had served in the State legislatures and conventions that
debated and approved the State constitutions. Not only were they, the
Framers, conversant with the organic laws of the 13 states, but they
were also knowledgeable of the colonial experience under colonial
government. As was ably stated by William C. Morey, in the September
1893 edition of ``Annals of the American Academy'' of Political and
Social Science:
The state constitutions were linked in the chain of
colonial organic laws and they also formed the basis of the
federal constitution. The change had its beginning in the
early charters of the English trading companies, which were
transformed into the organic laws of the colonies, which, in
their turn, were translated into the constitutions of the
original states, which contributed to the constitution of the
federal union.
The Pennsylvania Constitution of 1701 appears to have been the last
written form of government that appeared in colonial times. There had
been two previous Pennsylvania Constitutions--1683 and 1696--and these,
together with the Massachusetts Charter of 1691, constitute the most
advanced colonial forms and provide the nearest approach in the
colonial period towards the final goal of the national constitution.
The original 13 colonies became 13 States during the decade preceding
the 1787 Convention, and all but Connecticut and Rhode Island wrote new
constitutions in forming their state governments. These new state
constitutions would provide important innovations in American
constitutionalism, and the Framers at Philadelphia would benefit
hugely, not only from the substantive material and form contained in
the Constitutions but also from the experience gained under the
Administration of the new governments.
Let us examine some of these new constitutions, noting particularly
those features in the State constitutions which would later appear,
even if varying degree, in the Federal Constitution. Thus we shall see
the guidance which these early State constitutions provided to the men
at Philadelphia in 1787.
Let us first examine article I of the Constitution and observe the
amazing conformity therein with the equivalent provisions of the
various State constitutions written a decade earlier in 1776 and 1777.
Take section 1, for example, in which the U.S. Constitution vests all
legislative powers in a Congress, consisting of a Senate and House. At
least nine of the State constitutions have similar provisions--so you
see, our constitutional Framers just did not pick this out of thin
air--perhaps varying somewhat in form, which vest the lawmaking powers
in a legislature consisting of two separate bodies, the lower of which
is generally referred to as an assembly or House of Representatives or
House of Delegates--as in the case of West Virginia, which was not in
existence at that time, of course--or, as in the case of North
Carolina, a House of Commons. The upper body is generally referred to
as a Senate, but it varies, likewise, being sometimes referred to as a
Council.
Section 2 provides that the U.S. House of Representatives shall
choose their speaker and other officers and shall have the sole power
of impeachment, and at least a half-dozen states provided that the
legislative bodies should choose their speaker and other officers.
Section 3 provides for a rotation of Senators, two from each state,
so that two-thirds of the Senate is always in being. Many of the state
senators were to represent districts consisting of several counties or
parishes or other political units, and several of the States, including
Delaware and New York, provided for a rotation of the members of the
upper body so that a supermajority of the Senate were always holdovers.
The Great Compromise--which was worked out at the 1787 Convention and
agreed to on July 16, 1787, providing that the Senate would represent
the States, while the House of Representatives' representation would be
based on population--may well have benefited from the examples set by
Delaware and New York.
At least eight of the State constitutions provided for impeachment by
the lower house. Massachusetts and Delaware provided for the trial of
impeachments by the upper body, as does the U.S. Constitution, and
Massachusetts required that senators be on oath or affirmation. The New
York constitution required a vote of two-thirds of the members present
for a conviction in trials of impeachment. Here again, the Framers of
the U.S. Constitution had examples before them which would guide them.
Conviction, in cases involving impeachment, would, in the instance of
New York, not ``extend farther than to removal from office, and
disqualification to hold or enjoy any place of honor, trust, or profit
under the state, but the party so convicted shall be, nevertheless,
liable and subject to indictment, trial, judgment, and punishment,
according to the laws of the land''--almost the identical language that
appeared a decade later in the U.S. Constitution relative to penalties
following conviction in impeachment cases, and almost identical to the
language in the unwritten English Constitution which appeared 200 years
before.
At least nine of the State constitutions provided that each House
should be the judge of the elections, returns, and qualifications of
its own members, with a majority to constitute a quorum and with
provisions for a minority (of senators) to compel the attendance of
absent senators--the equivalent of language which appears in article I,
section 5, of the U.S. Constitution.
The provisions of article I, section 5, of the U.S. Constitution
allowing each House to determine the rules of its own proceedings could
well have been copied from the state constitutions of Maryland,
Virginia, Delaware, Georgia, and Massachusetts, and the provision for
expulsion of members in the U.S. Constitution could also have been
taken from the state constitutions of Delaware, Maryland, and
Pennsylvania.
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The constitutional requirement that revenue bills originate in the
House of Representatives was prefigured by the State constitutions of
New Hampshire, New Jersey, Virginia, Delaware, Maryland, Massachusetts,
and South Carolina. Massachusetts permitted the senate to propose or
concur with amendments to revenue bills as was later provided in the
U.S. Constitution.
The presentment clause of article I, section 7, that is what the
Congress tripped over when it passed the nefarious Line-Item Veto Act
of 1995, the presentment clause.
The presentment clause of article I, section 7, of the U.S.
Constitution has been very much in the news lately in reference to the
line item veto. The State constitutions of Massachusetts and New York
are very revealing and instructive in this regard. The Massachusetts
Constitution stated that no bill of the senate or house of
representatives should become a law until it ``shall have been laid
before the Governor'' and if he approved thereof, ``he shall signify
his approbation by signing the same. But if he has any objection to the
passing of such bill, he shall return the same, together with his
objections thereto, in writing, to the Senate or House of
Representatives, in whichever the same shall have originated; who shall
enter the objections sent down by the Governor, at large, on their
records, and proceed to reconsider the said bill.''
That is what we are about to do very soon with respect to the most
recent veto of the President. So one can see these provisions that
appear in our own Constitution had their roots in various other
documents and experiences that long preceded the writing of the U.S.
Constitution.
But, if after such reconsideration, two-thirds of the said
senate or house of representatives, shall, notwithstanding
the said objections, agree to pass the same, it shall,
together with the objections, be sent to the other branch of
the legislature, where it shall also be reconsidered, and if
approved by two-thirds of the members present, shall have the
force of the law. But in all such cases, the votes of both
Houses shall be determined by yeas and nays.
The language in the Massachusetts State Constitution is strikingly
similar to that which appeared a decade later in the U.S. Constitution
concerning Presidential vetoes of bills and the requirement that such
bills be presented to the President for his signature or for his
approval or rejection.
The U.S. Constitution's language concerning vetoes and the
presentment of legislation to the Chief Executive for his approval or
disapproval is again exceptionally reminiscent of the language in the
New York State Constitution, which provides for a council of revision
of all bills. Note, however, the New York State Constitution language:
All bills which have passed the Senate and assembly shall
before they become laws, be presented to the said council for
their consideration, and if it should appear improper that
the said bill should become a law of this state, that they
return the same, together with their objections thereto in
writing, to the Senate or House of Assembly (in which so ever
the same shall have originated) who shall enter the objection
sent down by the council at large in their minutes, and
proceed to reconsider the said bill. But if, after such
reconsideration, two-thirds of the said Senate or House of
Assembly shall, notwithstanding the said objections, agree to
pass the same, it shall, together with the objections, be
sent to the other branch of the legislature, where it shall
also be reconsidered, and, if approved by two-thirds of the
members present, shall be a law.
And in order to prevent any unnecessary delays, be it
further ordained, that if any bill shall not be returned by
the council within ten days after it shall have been
presented, the same shall be a law, unless the legislature
shall, by their adjournment, render a return of the said bill
within ten days impracticable; in which case, the bill shall
be returned on the first day of the meeting of the
legislature after the expiration of the said ten days.
The similarity of the language in the U.S. Constitution's veto and
presentment clause to the equally complex language of the Massachusetts
and New York State Constitutions is enough to make one sit up and take
notice. Except for some slight variations, the U.S. Constitution
appears to copy, almost verbatim, the text set forth in the two State
constitutions. It cannot be said with a straight face that this is a
matter of mere coincidence. It seems to me that one can easily see the
fine hand and the eloquent voice of Alexander Hamilton, in the case of
New York, and Elbridge Gerry, Nathaniel Gorham, and Rufus King, in the
case of Massachusetts, in the behind-the-scenes discussions that
probably occurred in the Convention with respect to these and other
clauses in the Constitution which appeared to have been copied, almost
word for word, from various State constitutions.
The President's State of the Union Message, which grows out of
article II, section 3, of the U.S. Constitution, was likely
foreordained by the New York Constitution which stated that it was the
duty of the Governor ``to inform the legislature, at every session, of
the condition of the state, so far as may respect his department; to
recommend such matters to their consideration as shall appear to him to
concern its good government, welfare, and prosperity;
. . .''
Nine of the States provided that the Governor should have the title
of commander in chief, thus prefiguring section 2 of article II of the
U.S. Constitution which states that the President ``shall be commander
in chief'', and at least five of the State constitutions gave the chief
executive of the State the power to grant reprieves and pardons, except
in cases of impeachment, just as we find in article II, section 2, of
the U.S. Constitution with respect to the President's powers.
Other similarities between some of the State constitutions and the
U.S. Constitution--in varying degrees, of course--have to do with the
requirement to assemble at least once in every year; legislators'
privilege from arrest; the requirement that a census be taken for the
purpose of the apportionment of representatives; the laying and
collection of taxes by the legislative branch; the taking of an oath
before entering upon the office of Governor and other high State
offices, as in the case of the President and other officials at the
national level; provisions in the State and National constitutions for
amendments thereto; and prohibitions against bills of attainder and ex
post facto laws.
Many of the States, obviously remembering British history--you see,
the roots go back, they go back and farther back--expressly prohibited
the governor from proroguing, adjourning, or dissolving the
legislature, but did provide that the Governor could, under
extraordinary circumstances, convene the legislature in advance of the
time to which it had previously adjourned.
That the States were very wary of strong and overbearing executives
could be seen in the fact that in at least seven of them, the Governor
was limited to a 1-year term--that is what they though of their chief
executives--2 years, in the case of South Carolina; and 3 years in
Delaware and New York. Prohibitions against eligibility for reelection
were also prevalent in several of the State constitutions.
In at least eight of the States, the constitutions provided for the
selection of the Chief Executive by the legislative branch.
In at least three States--Delaware, New Jersey, and New York--the
common law of England was to remain in force. And some of the States,
such as South Carolina, appeared to have copied in their constitutions,
or their Bills of Rights which were annexed thereto that language from
the Magna Carta which, in the language of the South Carolina
constitution, states:
That no freeman of this state be taken or imprisoned, or
disseized of his freehold, liberties, or privileges, or
outlawed, exiled or in any manner destroyed or deprived of
his life, liberty, or property, but by the judgment of his
peers or by the law of the land.
In all of the State constitutions, the Governor was commander-in-
chief, and the Federal constitution also makes use of the term, as I
say, in relation to the President. In all of the States except
Connecticut, Rhode Island, and Georgia, and in South Carolina, the
State constitutions before 1787 had granted the pardoning power to the
Governor, and, in the Federal Constitution, the President's pardoning
power was drawn from this example of the states.
Almost every State prescribed in its constitution a form of oath for
its officers, and the oath required of the President of the United
States appears in the last paragraph of section 1, article II, of the
U.S. Constitution.
The framers provided for the choice of President to be indirect. In
the Constitution of Maryland (1776) we find an almost exact counterpart
of the electoral college by whom the President is
[[Page S2919]]
chosen, in which the Senators from Maryland were to be selected by a
body of electors, chosen every 5 years by the inhabitants of the State
for this particular purpose and occasion.
This method of choosing the President may have been suggested from
the manner of choosing Senators under the Constitution of Maryland.
An examination of these early State constitutions clearly indicates a
vast wealth of knowledge concerning constitutional principles and a
gradual evolution leading up to the convention based on the experience
gained from the administration of governments under the new State
constitutions. I see the constitutions of the States as tributaries--
tributaries--to a mighty stream of American constitutionalism flowing
to the mighty ocean of events that culminated in the grand handiwork of
the framers at the 1787 Convention.
Between the completion of State constitutions and the Philadelphia
Convention that produced the United States Constitution stood the
Articles of Confederation which went into effect on March 1, 1781, from
the substance and experience of which Madison and Hamilton and Franklin
and others at the Convention gained so much guidance.
Let us now turn our attention to the Articles of Confederation.
Mr. President, I see others on the floor. They may wish to speak. I
will be happy to yield the floor at this point if I can regain it later
and continue my statement.
Mr. LEAHY. Mr. President, I say to my friend from West Virginia, I
have already been on this floor speaking for a couple days. I took a
moment to go back to the office. But I was watching the Senator on the
monitor, and I just wanted to come over and listen to him in person. I
have no intention of wanting to ask him to yield the floor. I
appreciate the courtesy he has offered.
Mr. BYRD. I thank the distinguished Senator.
I see the Senator from California. Also, if she wishes to have the
floor, I will be happy to yield it for a while.
Mrs. FEINSTEIN. I appreciate the courtesy of the distinguished
Senator from West Virginia.
I say to the Senator, please, continue on and conclude. I am just
fine. I enjoy listening.
Mr. BYRD. I thank the Senator.
Mr. President, what impact did the Articles of Confederation have
upon the Constitution of the United States?
On June 7, 1776, Richard Henry Lee of Virginia introduced a
resolution in the Continental Congress resolving:
That these United Colonies are, and of right ought to be,
free and independent states, that they are absolved from all
allegiance to the British Crown, and that all political
connection between them and the state of Great Britain is,
and ought to be, totally dissolved.
That is expedient forthwith to take the most effectual
measures for forming foreign alliances.
That a plan of confederation be prepared and transmitted to
the respective colonies for their consideration and
approbation.
In accordance with this resolution, Congress appointed a committee of
12 on June 12--which happens to be my lovely wife's birthday, June 12,
although she does not go that far back--1776, to prepare a form of
confederation. A month later, on July 12, a draft plan was reported by
the committee, written by John Dickinson of Delaware. The document,
although reported to Congress on August 20, was delayed in its final
consideration, and after having undergone modifications, was finally
approved by the last holdout State of Maryland in February 1781, and
the Congress, then, first met under the Articles of Confederation on
March 1, 1781.
It had been a long time aborning.
New Jersey, Delaware, and Maryland had demanded that the States that
had large claims to western lands renounce them in favor of the
Confederation. Maryland was the last State to ratify the Articles, but
finally went along when she became satisfied that the western claims
would become the expected treasure of the entire Nation.
The Articles of Confederation were the direct predecessor of the
Constitution of the United States, and the Articles contained within
themselves the fatal flaws which doomed the success of the
confederation. It was a ``league of friendship'' only, of which the
Congress was the unique organ and in which ``each state shall have one
vote.'' The votes of nine States were required before important action
could be taken by Congress, and the consent of the legislature of each
State was necessary to any amendment of the fundamental law.
Congress was given no commercial control and, most unfortunately, no
power to raise money, but could only make requisitions on the States
and then hope and pray that the States would respond affirmatively and
adequately. They seldom if ever did. Control over foreign affairs was
vested in Congress, but it was without means of making the States obey
treaty requirements. The Congress had responsibility but without power
to carry out its responsibility. It dealt with the people, not
individually, but over their heads through the States.
Several efforts were made to get the States to amend the articles, by
adding the right to levy import duties, but these efforts failed
because it was impossible to get the unanimous consent of the
legislatures of the 13 States to any amendment of the fundamental law.
It became increasingly difficult to secure a quorum of attendance in
Congress, and even when a quorum of Members attended, important
measures were blocked by the requirement for the votes of nine States.
A State frequently lost its single vote--that is all it had--because of
differences among its delegates. It was a time of experimentation, of
learning a hard lesson that would be remembered. But the experience
gained from learning these hard lessons helped to prepare the way for a
better national government. It should also be remembered that at least
one substantial act of legislation--the ordinance for the government of
the Northwest Territory, was created by the government under the
Articles of Confederation.
Under the Articles of Confederation, no State could be represented in
Congress by less than two, nor by more than seven, members; and no
person could serve as a delegate for more than three years in any term
of six years. There were limited terms. Each State had only one vote.
All charges of war and other expenses incurred for the common defense
or general welfare, if allowed by the United States in Congress
assembled, were to be defrayed out of a common treasury, which would be
supplied by the several States in proportion to the value of all lands
within each State, and the taxes for paying a State's proportion were
to be laid and levied by the authority of the legislatures of the
several States within the time agreed upon by the Congress.
Under a very complex arrangement--I say to the former Attorney
General of the State of Alabama, who presently presides over this
august body--the Congress under the Confederation was denominated as
the last resort on appeal in all disputes and differences arising
between two or more States ``concerning boundary jurisdiction or any
other cause whatever.''
The business of Congress was to be carried on during a recess by ``a
committee of the states,'' to consist of one delegate from each State.
When it came to the armed forces, requisitions were to be made from
each State for its quota, in proportion to the number of white
inhabitants in such States, which requisitioned would be binding. Each
State would appoint the regimental officers, raise them in and clothe
and arm and equip them at the expense of the United States.
However, if the Confederation Congress should determine, based on
circumstances, that any State should raise a smaller number than its
quota and that any other State should raise a greater number of men
than its quota called for, the extra number was to be raised, clothed,
and equipped as the quota allowed, unless the legislature of that State
should judge that such extra number could not be safely spared. The
State would be permitted to raise ``as many of such extra number'' as
the State judged could be safely spared.
What a flawed approach! It is little wonder that George Washington,
as Commander in Chief of the Revolutionary forces, was constantly
frustrated in his efforts to build an effective fighting force. It was
almost a miracle that the fledgling Nation managed to carry on and win
the war under such conditions, but we can only guess
[[Page S2920]]
that Providence was on our side. We know for sure that the situation in
England was such that that country's preoccupation with its own
internal problems rendered impossible the full concentration of its
resources and strength to be brought to bear against us. We were lucky
in that regard.
Under the Articles, the ``Union shall be perpetual'' nor could any
alteration be made in the Articles--there could be no amendment to that
Constitution--unless such alteration was agreed upon in Congress
assembled and afterwards confirmed by the legislature of every state.
The Articles of Confederation contained the phrase ``The United
States of America,'' for the first time in American documentary
history. The Articles were America's first national constitution.
Congress was elected by the State legislatures. There was only one body
of Congress, not two, back then, as we see today. And Congress was the
executive, the legislative branch, and the judiciary in many respects.
There was no man living downtown at the White House who was President.
Now let us examine the parallels between the Articles of
Confederation and the U.S. Constitution.
I am here showing where the roots of the Constitution go. It is like
tracing the roots of a tooth, if one is having a root canal, let us
find where those roots go.
Article II of the Articles of Confederation provided that each State
would retain its sovereignty and every power and right ``which is not
by this confederation expressly delegated to the United States, . . .''
Where do we find that in the Constitution? The tenth amendment to the
U.S. Constitution provided that the powers not delegated to the United
States by the Constitution nor prohibited by it to the States ``are
reserved to the states respectively, or to the people.''
Article IV of the Articles of Confederation provided that the people
of the different States would ``be entitled to all privileges and
immunities of free citizens in the several states'', that ``full faith
and credit'' should be given in each of the States to the records,
acts, and judicial proceedings of the courts and magistrates of every
other state; and that any person guilty of a felony in any state who
fled from justice and was found in any other state, would ``upon demand
of the Governor or executive power of the state from which he fled,''
be delivered up ``to the state having jurisdiction of his offense.''
The ``privileges and immunities'' clause of the Articles of
Confederation, found in article IV thereof, appears in the U.S.
Constitution in article IV, section 2.
The ``full faith and credit'' clause of the Articles of Confederation
is to be found in the U.S. Constitution, article IV, section 1.
The delivering up of persons charged with felonies to another state
on demand of the executive authority thereof, found in article IV of
the Articles is also found in article IV, section 2, paragraph 2, of
the U.S. Constitution.
The PRESIDING OFFICER (Mr. Sessions). The Chair notes that the
Senator's time has expired.
Mr. WELLSTONE. Mr. President, I ask unanimous consent to yield 40
minutes of my 60 minutes to the Senator from West Virginia.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, I thank the distinguished Senator from
Minnesota for his characteristic courtesy.
Article 5 of the Articles provided for the meeting of Congress on the
first Monday in November in every year. Under the U.S. Constitution,
article I, section 4, paragraph 2, Congress ``shall assemble at least
once in every year, and such meeting was originally to have been on the
first Monday in December, but this was changed to provide that Congress
could by law appoint a different day from that of Monday in December.
Under article V of the Articles of Confederation, freedom of speech
and debate in Congress could not be impeached or questioned in any
court or place out of Congress. Under the U.S. Constitution, article I,
section 6, members of Congress, for any speech or debate in either
House, ``shall not be questioned in any other place.''
Article V of the Articles protects members of Congress from arrests
during the time of their going to and from, and attendance in Congress,
except for treason felony, or breach of the peace.
Members of Congress are likewise protected under article I, section
6, paragraph 1, of the U.S. Constitution.
Article VI of the Articles precludes any person holding office of
profit or trust under the United States from accepting any present,
emolument, office or title of any kind whatever from any king, prince
or foreign state. Nor could Congress grant any title of nobility.
In almost identical language, the U.S. Constitution, in article I,
section 9, paragraph 7, prohibits members of Congress from accepting
any present, emolument, office, or title, from any king, prince or
foreign state.
Under the Articles of Confederation no vessels of war or any body of
forces could be kept up in time of peace without the consent of
Congress. The same prohibition against the states was included in the
U.S. Constitution in article 1, section 10, paragraph 2.
Provisions concerning state militias are contained in article VI of
the Articles, and in article I, section 8, of the U.S. Constitution.
Article IX of the Articles vested the power of declaring war,
establishing rules for captures on land or water, and granting letters
of marque and reprisal. The equivalent provisions are to be found in
article I, section 8, of the U.S. Constitution.
So, you see, these provisions are not something new that just came
from the minds, from the heads of our constitutional forebears and the
Constitutional Convention in 1787. They were already written down in
other places. Thank God for that and for their guidance, as it were.
Both the Articles of Confederation and the U.S. Constitution provide
for the trail of piracies and felonies committed on the high seas, in
article IX of the Articles and in article I, Section 8 of the
Constitution.
Article IX of the Articles of Confederation gave Congress the sole
and exclusive right and power of regulating the alloy and value of
coin, fixing the standard of weights and measures throughout the United
States, and regulating the trade and managing all affairs with the
Indians. Congress under the Constitution was given the same powers in
article I, section 8.
The power to establish and regulate post offices, and the power to
make rules for the government and regulation of the land and naval
forces was given to the Congress by the Articles of Confederation in
article IX. The same powers to establish post offices and to make rules
for the government and regulation of the land and naval forces were
given to the Congress in article I, section 8, of the U.S.
Constitution.
Article IX of the Confederation Articles provided that the yeas and
nays of members of Congress were to be entered on the journal when
desired by any member of the Congress. The U.S. Constitution article I,
section 5 provided for the yeas and nays of members to be entered on
the journal when desired by one-fifth of those members present.
The admission of other colonies into the confederation was provided
for in article 11 of the Articles of Confederation, while, under the
Constitution new States may be admitted by Congress into the Union,
under Section 3 of article IV.
So, you see, we had a good roadmap in the Articles of Confederation,
which went before the U.S. Constitution.
Congress was given power under the Articles of Confederation to
borrow money on the credit of the United States, to build and equip a
navy, to agree upon the number of land forces. Under the Constitution,
article I, section 8, Congress was given the power to borrow money on
the credit of the United States; to raise and support armies; and to
provide and maintain a navy.
In article XIII of the Articles of Confederation, every state was
required to abide by the determination of Congress, and the Articles of
Confederation were to be inviolably observed by every state. The
counterpart of these provisions is to be found in the U.S.
Constitution, article VI, paragraph 2, where it is provided that the
Constitution and the laws of the United States, and all treaties made,
``shall be the supreme law of the land''; and the judges in every state
were to be bound thereby.
[[Page S2921]]
Article V of the U.S. Constitution provides for amendments to that
document when proposed by two-thirds of both Houses of Congress or upon
the application of two-thirds of the state legislatures. Amendments to
the Articles of Confederation required approval by the Congress,
followed by confirmation by the legislature of all the states.
The Articles set up what amounts to a national court system (article
IX), but the system functioned only to adjudicate disputes between
states, not individuals. Congress could pass no laws directly affecting
individuals, and thus the national court had no jurisdiction over
individuals. But when Congress was given such power in the 1787
Constitution, the notion of dual citizenship was revolutionized. The
invention of dual citizenship in the Articles of Confederation, and
then the transfer of this concept to the national constitution in
article VI, section 2, was the legal basis for the operation of
federalism in all of its many manifestations.
Aside from the narrower grant of power to Congress, and a unicameral
legislature in which each state had one vote, the Articles differed
from the U.S. Constitution mainly in placing the court directly under
Congress and in having the committee of the states (one delegate from
each state) instead of a single executive. Characteristic of state
constitution were a weak executive, often under the sway of a committee
appointed or elected by the legislature, and a court system directly
under the legislature. The Articles of Confederation in these respects
was not the result of independent theorizing about the best
institutions. It was a straightforward extension of Whig political
thought to national government.
The Constitution of the United States provided, in article VII, for
its ratification by the conventions of nine states. The ratification of
any new Constitution, under the Articles of Confederation, required the
approval of Congress and the unanimous confirmation by the legislatures
of all states.
The Framers of the U.S. Constitution devised an ingenious way of
getting around this insuperable requirement of unanimity by the state
legislatures, and we can be thankful for that. Otherwise, we would
still be governed by the unworkable Articles of Confederation--if,
indeed, we had been able to survive as a nation. Ours might have been
the balkanized States of America instead of the United States of
America. This was done by circumventing the legislatures altogether,
and securing ratification directly by the people in state conventions.
Why did the Founders require nine states to ratify the Constitution
rather than 13 or a majority of seven? Experience, and the likelihood
that Rhode Island would not ratify, made unanimity an impractical
alternative. A simple majority of seven might not have included the
large states, and the new nation would have been crippled from the
start. There was, however, considerable experience with a nine-state
requirement in the Continental Congress. You see how these Framers
benefited by the experience that had gone before them. Nine states
constituted a two-thirds majority. Although such a majority was at
times extremely difficult to construct, a provision that satisfied nine
states invariably satisfied more than nine. This was a litmus test that
the Framers understood, and the two-thirds majority required by the
Articles led them to adopt a similar requirement for ratifying the
constitution.
Without the Articles of Confederation, the extended republic would
have had to be invented out of the writings of Europeans as a rank
experiment that a skeptical public would likely not have accepted. On
the other hand, Americans had learned that government on a continental
basis was possible, in certain respects desirable, and that a stable
effective national government required more than an extended republic--
it needed power that could be applied directly to individuals.
Experience also convinced them that the national government should have
limited powers, and that state governments could not be destroyed.
There was a logic to experience that no amount of reading and political
theory could shake.
Providing for an amendment process was one of the most innovative
aspects of both national constitutions. Equally innovative was the
provision for admitting new states. History had demonstrated that a
nation adding new territory almost invariably treated it as conquered
land, as did the ancient Romans, the Greeks, the Persians, and so on.
The founders proposed the future addition, on an equal footing, of new
states from territories now sparsely settled, if settled at all. The
Articles of Confederation is of major historical importance for first
containing this extraordinarily liberal provision, which became part of
the U.S. Constitution. It guaranteed the building of an extended
republic.
The general impression of the people today is that the Articles of
Confederation were wholly replaced in 1787, but, in fact, as I have
shown, much of what was in the Articles showed up in the 1787
Constitution. As a matter of fact, few Americans today, relatively
speaking, know much if anything about the Articles of Confederation or
are even aware that such Articles ever existed.
But not only did the Framers of the Constitution copy into that
document a great deal of what was contained in the Articles of
Confederation, but by virtue of the fact that they had lived under the
Articles for over 6 years, they benefited from the experience gained
thereby and were thus able to avoid many of the faults and flaws of the
Articles by including in the Constitution corrective provisions for
such avoidance. In other words, many of the provisions of the U.S.
Constitution which have worked so well over these 212 years probably
would never have been included in the Constitution, or even thought of,
without having had the experience of living under the Articles. It
could perhaps better be said that the Framers profited by the mistakes
or negative experiences of living under the Articles. In other words,
hindsight provided a 20/20 vision to the Framers.
Mr. President, as we examine the roots of our Constitution, how could
we avoid taking a look at the British Constitution?
What part did the British Constitution play in the formulation of our
own fundamental organic national document? Perhaps not as much directly
as did the state constitutions and the Articles of Confederation. Yet,
indirectly, woven into the experience of living under the colonial
governments and the early state constitutions and the Articles of
Confederation there were, running throughout, important threads of the
ancient British Constitution that are often overlooked and were
accepted as a practice in the early colonial documents and state
constitutional forms without conscious attribution. Nevertheless,
consciously or not, various rudiments of the American system can be
traced back to developments that had occurred in England and even as
far back as the Anglo-Saxon period which found their way into the
fabric of American constitutionalism. Let us examine some of these
antecedents.
Many of the principles imbedded in American constitutionalism look
back to the annals of the motherland for their sources and explanations
and were carried forward by the political development of many
generations of men.
To begin with, our nation was founded by colonists of whom the great
majority, let us not forget, were of the English branch of the Teutonic
race. For the most part, they were of one blood and their language and
social usages were those of Great Britain. It is where my forebearers
are from. The same can be said by others here. They brought with them
to these North American shores the English law itself, and, for a
century or more, they continued in political union with England as
members of one empire, often referring to themselves as ``Englishmen
away from home'', claiming all of the rights and liberties of British
subjects.
Read your history. Forget those modern social studies. Go back to the
history. Follow the taproots of our Constitution.
Their institutions were mainly of an English nature, and they
possessed in common with their English brethren a certain stock of
political ideas. For example, a single executive, a legislative branch
consisting of two houses--the British House of Lords, and the British
House of Commons--the upper of which
[[Page S2922]]
was conservative and the lower of which was representative of the
people at large. There were also general principles such as trial by
jury, taxation by the elected representatives of the people, and a
system of jurisprudence based upon custom and the precedents of the
English common law.
These liberties and these rights had been wrenched from tyrannical
monarchs over centuries at the cost of blood--the blood of Englishmen,
the people of the British Isles, Scotland, Ireland, and Wales.
The earliest representative legislative assembly ever held in America
was convened in 1619 at Jamestown and was composed of 22
representatives from several towns and counties. This was the germ of
hundreds of later local, town, and state assemblies throughout America.
It also imitated the British Parliament, with the legislative power
lodged partly in a Governor who held the place of the sovereign and who
was appointed by the British Crown, partly in a council named by a
British trading company, and partly in an assembly composed of
representatives chosen by the people. Of course, no law was to be
enforced until it was ratified by the company in England, and returned
to the colony under that company's seal. Other representative
legislative assemblies developed throughout the colonies, and laws were
allowed to be made as long as such laws were not contrary or repugnant
to the laws of England. There were, of course, variation in the systems
of government throughout colonial America, but as we will note in the
early state constitutions that were developed in 1776, as has already
been noted, the repetition in many details of the political systems was
evidence of the unanimity with which the colonies followed a common
model. Of course the power over the purse--we have talked about that
many times, and I will just touch upon it here--is the central strand
in the whole cloth of Anglo-American liberty. Let us engage in a
kaleidoscopic viewing of the larger mosaic as it was spun on the loom
of time. Let us trace a few of the Anglo-Saxon and later English
footprints that left their indelible imprint on our own constitutional
system. We have too often forgot and it seems to be a fetish these
days, that we ought to forget our roots.
Several developments in the course of British history served as
guideposts in the formation of the American Constitution. Many of the
principles underlying the British Constitution were the result of
lessons learned through centuries of strife and conflict between
English monarchs and the people they ruled. The rights and liberties
and immunities of Englishmen had been established by men who, like the
authors of our Declaration of Independence, were willing to risk their
lives, their fortunes, and their sacred honor for those rights.
The U.S. Constitution was in several ways built upon a foundation
from which the colonies themselves had never really departed but had
only adjusted to local needs and conditions and social republican
forces that were at play in American colonial life.
The English Constitution was an unwritten constitution, but it
includes many written documents such as Magna Carta (1215), the
Petition of Right (1628), and the English Bill of Rights (1689), all of
which had some part in influencing the formulation and contents of our
own Constitution. There were various other English charters, court
decisions, and statutes which were components of the English
constitutional matrix and which, in one way or another, were reflected
in our own organic law framed at Philadelphia.
Among these great English pillars of liberty, for example, as the
Presiding Officer knows, were the writ of habeas corpus: ``you shall
have the body.'' Habeas corpus was one of the most celebrated of Anglo-
American judicial procedures and has been called the ``Great Writ of
Liberty''. The name ``habeas corpus'' derives from the opening words of
the ancient English Common law writ that commanded the recipient to
``have the body'' of the prisoner present at the court, there to be
subject to such disposition as the court might order. In Darnel's Case
(1627), during the struggle for Parliamentary supremacy, if a
custodian's return to a writ of habeas corpus asserted that the
prisoner was held by ``special command'' of the king, the court
accepted this as sufficient justification. This case precipitated three
House of Commons Resolutions and the Petition of Right, to which
Charles I--who later lost his head as well as his throne--gave his
assent, declaring habeas corpus available to examine the underlying
cause of a detention and, if no legitimate cause be shown, to order the
prisoner released. But even these actions did not resolve the matter.
Finally, under Charles II, the habeas corpus act of 1679 guaranteed
that no British subject should be imprisoned without being speedily
brought to trial, and established habeas corpus as an effective remedy
to examine the sufficiency of the actual cause for holding a prisoner.
Although the Act did not extend to the American colonies, the
principle that the sovereign had to show just cause for detention of an
individual was carried across the Atlantic to the colonies and was
implicitly incorporated in the federal constitution's Article 1
provision prohibiting suspension of the writ of habeas corpus ``unless
when in cases of rebellion or invasion the public safety may require
it.''
Another English statute that made its imprint on our federal
constitution was the Act of Settlement. Until the late 17th century,
royal judges held their offices ``during the king's good pleasure.''
Under the Act of Settlement of 1701, however, judges were to hold
office for life instead of at the king's pleasure and could be removed
only as a result of charges of misconduct proved in Parliament. This
was a crucial step in insuring the independence of the American
judiciary. The Constitutional Convention of 1787 adopted the phrase
``during good behavior'' in Article 3, to define the tenure of federal
judges in America.
William the Conqueror had brought with him from Normandy the sworn
inquest, the forerunner of our own grand jury, to which the fifth
amendment of the Constitution refers. According to the Assize of
Clarendon in 1166, Henry II ordered the formation of an accusing or
presenting jury to be present at each shire court to meet the king's
itinerant justices. This was a jury of ``12 of the more competent men
of a hundred and by four of the more competent men of each vill'' who
were to be put ``on oath to reply truthfully'' about any man in their
hundred or vill ``accused or publicly suspected'' of being a murderer,
robber, or thief. This accusing jury--like the sworn inquest under
William I--was the antecedent of our own modern grand jury.
Like the presentment jury, the trial jury had Continental origins,
and by 1164, there was a clear beginning of the use of petit juries in
Crown proceedings. It was mostly used in the reign of Henry II (1154-
1189) to determine land claims and claims involving other real
property. By 1275, in the reign of Edward I, it was established that
the petit jury of 12 neighbors would try the guilt of an accused. Five
centuries later, jury trial in federal criminal cases was required by
Article 3 of the United States Constitution, and was repeated in the
sixth amendment of the U.S. Constitution. My, what a long time--five
centuries. The seventh amendment provided for a jury trial in civil
matters.
The fountainhead of English liberties--those are your liberties and
mine--was Magna Carta, signed by King John on June 15, 1215, in the
Meadow of Runnymede on the banks of the Thames, and during the next 200
years, the Magna Carta was reconfirmed 44 times. It is one of the
enduring symbols of limited government and the rule of law. Consisting
of 63 clauses, it proclaimed no abstract principles but simply
redressed wrongs. Simple and direct, it was the language of practical
men. Henceforth, no freeman was to be ``arrested, imprisoned,
dispossessed, outlawed, exiled, or in any way deprived of his standing
. . . except by the lawful judgment of his equals and according to the
law of the land.'' The phrase ``law of the land'' would become the
phrase ``due process of law'' in later England and in our own Bill of
Rights.
Other provisions also anticipated principles that would likewise be
reflected five centuries later in the U.S. Constitution. There was
language, for example, relating to abuses by royal officials in the
requisitioning of private
[[Page S2923]]
property and thus are the remote ancestor of the requirement of ``just
compensation'' in the fifth amendment in our own Bill of Rights. Other
clauses required that fines be ``in proportion to the seriousness'' of
the offense and that fines not be so heavy as to jeopardize one's
ability to make a living--thus planting the seed of the ``excessive
fines'' prohibition in the American Bill of Rights' 8th amendment.
In 1368, more than 600 years ago, more than 400 years before the case
of Marbury v. Madison (1803), a statute of Edward III commanded that
Magna Carta ``be holden and kept in all Points; and if there be any
Statute made to the contrary, it shall be holden for none.''
So here was an early germ of the principle contained in the supremacy
clause of the U.S. Constitution's article VI.
Having observed several elements of our own Constitution that have
their roots in English history, let us now look at the English
beginnings of some of the liberties and immunities secured to us by the
American Bill of Rights.
Mr. President, I think this might be a good time for me to take a
break, inasmuch as I have something like 8 minutes left.
The PRESIDING OFFICER (Mr. Voinovich). The Senator has 6 minutes
left.
Mr. BYRD. I have 6 minutes remaining.
Mr. President, I ask unanimous consent that at such time as I regain
the floor, I be able to continue my prepared statement, and that it be
joined to the statement that has just preceded my yielding the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. And, since I have 5 remaining minutes, let me say again
that what I am doing here is attempting to show that the U.S.
Constitution is the result of the struggles of men in centuries before
our own, this last year of the 20th century. Forget what the media
says, forget what politicians say, this is not the first year of the
21st century, nor is it the first year of the third millennium. Anybody
who can count, whether they use the old math or the new math, knows
better than that. This is the last year of the 20th century.
But I want to show that these liberties, which were assured to us by
our Federal Constitution, did not just spring up overnight like the
prophet's gourd at Philadelphia. They had their roots going back
decades, centuries--1,000 years or more, and that those roots and those
documents--the Articles of Confederation, the State constitutions, the
colonial documents, the covenants--the Mayflower Compact and all of
these things--were known by the framers and they were guided in their
writing of the Federal Constitution by the experience that had been
gained by living under the articles, by living in the colonies, and by
the lessons taught by the British experience which had come at the
point of a sword and through the shedding of blood through many
centuries before. This is not just something that sprang up there
between May 25 and September 17, a total of 116 days in 1787.
I think it is good for us, as Members of the House and Senate, to
just stop once in a while and draw back, take a look at the forest, try
to see the forest and not just the trees, and restudy our history,
restudy our roots, and establish ourselves again in the perspective of
those Framers and their experiences, and understand that Marshall had
it right when he said that the Constitution was meant to endure for
ages.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I thank my good friend and colleague from
West Virginia. For over 25 years, he has been my mentor in the Senate.
I probably learned more about the Constitution's history and certainly
the procedures of the Senate from him than from anything I have read or
anybody else I have known. He is like my late father, one who reveres
history because history to him is not just a compilation of dates and
facts, but it is the roots of what we are and who we are and where we
will go.
The distinguished Senator from West Virginia has cast well over
15,000 votes. I know he could tell me exactly how many he has cast, but
it has been well over 15,000 votes. It is the record. I have been
privileged to cast over 10,000 votes, and I appreciate the kind words
he said when I cast that 10,000th. But those 10,000 votes, those 15,000
votes, many were in serious matters. Some were in procedural matters.
Most were on legislation, statutes, laws, amendments--some on treaties.
But it is so rare to be actually coming to vote on the issue of a
constitutional amendment.
As important as all the statutes, all the treaties, even all the
procedural matters are--because the distinguished Senator from West
Virginia knows better than anybody else here, a procedural vote often
is the determining vote--I think he would agree with me that the two
most important votes you might cast would be on a declaration of war or
on a constitutional amendment. In many ways, the country may be
affected more by a constitutional amendment than by a declaration of
war.
The distinguished Senator from West Virginia, my dear friend, has
done the Senate and I think the country a service by saying let us
pause a moment and ask how we got here. Actually, not only how we got
here but why we got here. The answers to those two questions reveals
that we should not amend the Constitution this way. It does not even
begin to reach that article V level of necessity.
I thank my friend. I don't wish to embarrass him. I know he has been
in some discomfort from a procedure on his eye. As one who, for other
reasons, is very sensitive to that, I know he did this at some
discomfort, but he said something that we should all hear.
I thank him and I yield the floor.
Mr. BYRD. Mr. President, before I yield, if I may, before I yield to
the distinguished Senator from Minnesota who has already been so very
gracious and considerate to me, I thank my friend from Vermont. I have
learned a lot of lessons from him. We can learn from one another. It is
easy, very easy if we try.
I appreciate his friendship. I appreciate his statesmanship. I am
very grateful for his being a stalwart defender of this great
Constitution and one who has voted, alongside me, in many what I
consider to be pretty critical votes that we have cast in this Senate.
I close my statement today with these words from Henry Clay:
The Constitution of the United States was made not merely
for the generation that then existed, but for posterity--
unlimited, undefined, endless, perpetual posterity.
Clay made those remarks in a Senate speech on January 29, 1850.
Mr. President, I ask unanimous consent that at the close of my
remarks, when I have finally brought them to a close this day, the
following articles be printed in the Record:
A Washington Post editorial of Monday, April 24, titled ``Victims and
the Constitution;'' a Washington Post column by George Will titled
``Tinkering Again;'' an item from the National Journal of April 22
titled ``Victims' Rights: Leave the Constitution Alone,'' by Stuart
Taylor, Jr.; and an editorial from the New York Times of Saturday,
April 3, titled ``Don't Victimize the Constitution.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Apr. 24, 2000]
Victims and the Constitution
The Senate is expected soon to take up a victims rights
amendment to the Constitution. The laudable goal is to
protect the interests of victims of violent crime in
proceedings affecting them. But the amendment by Sens. Jon
Kyl (R-Ariz.) and Dianne Feinstein (D-Calif.), now gaining
support, threatens both prosecutorial interests and the
rights of the accused. It should be rejected.
The measure would give victims the right to be notified of
any public proceedings arising from the offense against them,
to be present at such hearings and to testify when the issues
are parole, plea agreements or sentencing. Victims would be
notified of the release or escape of a perpetrator or any
consideration of executive clemency. They would also be
entitled to orders of restitution and to consideration of
their interest in speedy trials.
Many of these protections already exist in statute. But the
rights of victims properly are bounded under the Constitution
by the need to guarantee defendants a fair trial. A
defendant's right to a fair trial, for example, should not
depend on a victim's interest in seeing justice swiftly done.
It may sound perverse to elevate the rights of defendants
often correctly accused of crimes above those of their
victims. But rights of the accused flow out of the fact that
the government is seeking to deprive them of liberty--
[[Page S2924]]
or, in some cases, life. In doing so, it already is
representing the interests of their victims in seeing justice
done.
The Clinton administration backs a constitutional amendment
(though it has troubles with the specific language in the
current proposal), but it is also worth noting that some
prosecutors believe the amendment would hurt law enforcement.
Beth Wilkinson, one of the prosecutors in the Oklahoma City
bombing case, wrote in these pages last year that ``our
prosecution could have been substantially impaired had the
constitutional amendment now under consideration been in
place.'' The fundamental right of victims is to have
government pursue justice on their--and the larger
society's--behalf. To interfere with that in the victims' own
name would be wrongheaded in the extreme.
____
[From the Washington Post, Apr. 23, 2000]
Tinkering Again
(By George F. Will)
Congress's constitutional fidgets continue. For the fourth
time in 29 days there will be a vote on a constitutional
amendment. The House failed to constitutionalize fiscal
policy with an amendment to require a balanced budget. The
Senate failed to eviscerate the First Amendment by empowering
Congress to set ``reasonable limits'' on the funding of
political speech. The Senate failed to stop the epidemic of
flag burning by an amendment empowering Congress to ban flag
desecration. And this week the Senate will vote on an
amendment to protect the rights of crime victims.
Because many conservatives consider the amendment a
corrective for a justice system too tilted toward the rights
of the accused, because liberals relish minting new rights
and federalizing things, and because no one enjoys voting
against victims, the vote is expected to be close. But the
amendment is imprudent.
The amendment would give victims of violent crimes rights
to ``reasonable'' notice of and access to public proceedings
pertaining to the crime; to be heard at, or to submit a
statement to, proceedings to determine conditional release
from custody, plea bargaining, sentencing or hearings
pertaining to parole, pardon or commutation of sentence;
reasonable notice of, and consideration of victim safety
regarding, a release or escape from custody relating to the
crime; a trial free from unreasonable delay; restitution from
convicted offenders.
Were this amendment added to the Constitution, America
would need more--a lot more--appellate judges to handle
avalanches of litigation, starting with the definition of
``victim.'' For example, how many relatives or loved ones of
a murder victim will have victims' rights? Then there are all
the requirements of ``reasonableness.'' The Supreme Court--
never mind lower courts--has heard more than 100 cases since
1961 just about the meaning of the Fourth Amendment's
prohibition of ``unreasonable'' searches.
What is the meaning of the right to ``consideration''
regarding release of a prisoner? And if victims acquire this
amendment's panoply of participatory rights, what becomes of,
for example, a victim who is also a witness testifying in the
trial, and therefore not entitled to unlimited attendance?
What is the right of the victim to object to a plea bargain
that a prosecutor might strike with a criminal in order to
reach other criminals who are more dangerous to society but
are of no interest to the victim?
Federalism considerations also argue against this
amendment, and not only because it is an unfunded mandate of
unknowable cost. States have general police powers. As the
Supreme Court has recently reaffirmed, the federal
government--never mind its promiscuous federalizing of crimes
in recent decades--does not. Thus Roger Pilon, director of
the Center for Constitutional Studies at the Cato Institute,
says the Victims' Rights Amendment is discordant with ``the
very structure and purpose of the Constitution.''
Pilon says the Framers' ``guarded'' approach to
constitutionalism was to limit government to certain ends and
certain ways of pursuing them. Government, they thought,
existed to secure natural rights--rights that do not derive
from government. Thus the Bill of Rights consists of grand
negatives, saying what government may not do. But the
Victims' Rights Amendment has, Pilon says, the flavor of
certain European constitutions that treat rights not as
liberties government must respect but as entitlements
government must provide.
There should be a powerful predisposition against
unnecessary tinkering with the nation's constituting
document, reverence for which is diminished by treating it as
malleable. And all of the Victims' Rights Amendment's aims
can be, and in many cases are being, more appropriately and
expeditiously addressed by states, which can fine-tune their
experiments with victims' rights more easily than can the
federal government after it constitutionalizes those rights.
The fact that all 50 states have addressed victims' rights
with constitutional amendments or statutes, or both,
strengthens the suspicion that the proposed amendment is (as
the Equal Rights Amendment would have been) an exercise in
using--misusing, actually--the Constitution for the
expressive purpose of affirming a sentiment or aspiration.
The Constitution would be diminished by treating it as a
bulletin board for admirable sentiments and a place to give
special dignity to certain social policies. (Remember the
jest that libraries used to file the French constitution
under periodicals.)
The Constitution has been amended just 18 times (counting
ratification of the first 10 amendments as a single act) in
211 years. The 19th time should not be for the Victims'
Rights Amendment. It would be constitutional clutter,
unnecessary, and because it would require constant judicial
exegesis, a source of vast uncertainty in the administration
of justice.
____
[From the National Journal, Apr. 22, 2000]
Victims' Rights: Leave the Constitution Alone
(By Stuart Taylor, Jr.)
Chances are that most Senators have not really read the
proposed Victims' Rights Amendment, which is scheduled to
come to the floor for the first time on April 25. After all,
it's kind of wordy--almost as long as the Constitution's
first 10 amendments (the Bill of Rights) combined. And you
don't have to go far into it to understand two key points.
The first is that a ``no'' vote would open the way for
political adversaries to claim that ``Senator So-an-so sold
out the rights of crime victims.'' This helps explain why the
proposed amendment has a chance of winning the required two-
thirds majorities in both the Senate and the House. Sponsored
by Sen. Jon Kyl, R-Ariz., it has 41 cosponsors (28
Republicans and 13 Democrats), including Dianne Feinstein, D-
Calif., and has garnered rhetorical support from President
Clinton, Vice President Gore, and Attorney General Janet
Reno. (The Justice Department has hedged its endorsement of
the fine print because of the deep misgivings of many of its
officials.)
The second point is that even though the criminal justice
system often mistreats victims, this well-intentioned
proposal is unnecessary, undemocratic, and at odds with
principles of federalism. Unnecessary because victims' groups
like Mothers Against Drunk Driving have far more political
clout than do accused criminals. Victims' groups can and have
used this influence to push their elected officials to
augment the victims' rights provisions that every state has
already adopted. These include both statutes and (state)
constitutional amendments, not to mention federal
legislation, such as the Violence Against Women Act.
Undemocratic and inconsistent with federalism because this
proposal--like others currently in vogue--would shift power
from voters and their elected officials (state and federal
alike) to unelected federal judges, whose liberal or
conservative predilections would often influence how they
resolve the amendment's gaping ambiguities.
None of this is to deny that many victims--especially in
poor and minority communities--are still given short shrift
by prosecutors, judges, and parole officials, or that further
legislation may be warranted. But would enshrining victims'
rights in the Constitution be more effective than enumerating
them in ordinary statutes?
Consider the proposed amendment's specific provisions. They
would guarantee every ``victim of a crime of violence'' the
right to be notified of and ``not to be excluded from''
trials and other public proceedings ``relating to the
crime,'' as well as the right ``to be heard'' before critical
decisions are made on pre-trial release of defendants,
acceptance of plea bargains, sentencing, and parole. In
addition, courts would be required to consider crime victims'
interests in having any trial be ``free from unreasonable
delay,'' and to consider their safety ``in determining any
conditional release from custody relating to the crime.''
Other provisions would entitle victims to ``reasonable notice
of a release or escape from custody relating to the crime''
and ``an order of restitution from the convicted offender.''
All very worthy objectives. But rights are enumerated in
the Constitution mainly to protect powerless and vulnerable
minorities--such as criminal defendants, who face possible
loss of their liberty or even loss of life--from abuse by
majoritarian governments. Amending the Constitution to
promote popular causes is rarely a good idea, and advocates
of the proposed Victims' Rights Amendment have failed to
identify any legitimate interests of victims that cannot be
protected legislatively, or any constitutional rights of
defendants that stand in the way.
Moreover, to think that putting into the Constitution such
benignly vague language as ``free from unreasonable delay''
will have some magical effect--such as cutting through the
bureaucratic inertia and resistance that some say have
blunted the effect of victims' rights statutes--is both
fatuous and belied by our history. And any effort to add
enough detail to eliminate ambiguities would distend our
fundamental charter into something more like the Code of
Federal Regulations.
Of course, at some point the objective of promoting
victims' rights bumps up against other worthy goals. They
include protecting defendants' rights to due process of law
and other procedural protections against wrongful conviction,
and giving prosecutors discretion to negotiate plea bargains
with some defendants when necessary to get evidence against
others.
If the courts were to construe the proposed amendment so
narrowly as to leave such traditional rules and practices
undisturbed, it would amount to vain tokenism. If, on the
other hand, they were to construe the
[[Page S2925]]
amendment broadly, it could foment legal confusion; set off
torrents of new litigation by and among people claiming to be
``victims'' (a term that the amendment does not define);
saddle the legal system with new costs and delays; and even
increase the risks that innocent defendants would be
convicted, that some of the guilty would escape punishment,
and that some victims would be further victimized.
The most obvious risks the amendment poses to innocent
defendants--and as President Clinton has discovered, we are
all potential defendants--have been detailed by the American
Civil Liberties Union. Courts could use the amendment to deny
defendants and their counsel enough time to gather evidence
of innocence before trial. They might also allow all victim-
witnesses to be present when other witnesses are on the
stand, even when this could compromise the reliability of the
victim-witnesses' own testimony. (Current rules often require
sequestering witnesses to prevent them from influencing one
another's testimony.)
The risk of a guilty person's escaping punishment would be
enhanced if courts used victims' objections as a basis for
blocking prosecutors from entering legitimate plea bargains
or for requiring them to justify such plea bargains by
disclosing their strategies and any weaknesses in their
evidence. Consider, for example, what might have happened
to the Justice Department's effort to bring now-convicted
Oklahoma City bomber Timothy McVeigh to justice if the
Victims' Rights Amendment had been in effect in 1995.
Hundreds of victims--the injured and the survivors of the
168 people who died--could have invoked the amendment.
Crucial evidence, provided by a witness named Michael
Fortier, which helped convict McVeigh and co-defendant Terry
Nichols, might have been unavailable if victims who opposed
the prosecution's plea bargain with Fortier had been able to
derail it, according to congressional testimony by Beth A.
Wilkinson, a member of the prosecution team. Emmett E. Welch,
whose daughter Julie was among those killed by McVeigh's
bomb, testified at another hearing that ``I was so angry
after she was killed that I wanted McVeigh and Nichols killed
without a trial. . . . I think victims are too emotionally
involved in the case and will not make the best decisions
about how to handle the case.''
Of course, victims' interests would hardly be served by
convicting the innocent or by making it harder to bring the
guilty to justice. And some victims could be hurt more
directly--for example, battered wives who complain to
authorities only to be accused of assault by their
victimizers, who can then invoke their own ``victims'
rights.''
In short, the proposed constitutional amendment would do
little or nothing more for crime victims than would ordinary
state or federal legislation, and might in some cases be bad
for them. That's why even some victims' groups, including the
National Network to End Domestic Violence, are against it.
Most of us agree, of course, that prosecutors and judges
should be nice to crime victims (as they usually are). Most
of us also agree that parents should be nice to their
children. But would we adopt a constitutional amendment
declaring, ``Parents shall be nice to their children''? Or
``Parents shall give their children reasonable notice and an
opportunity to be heard before deciding whether and how to
punish older children who have pushed them around''? Would we
leave it to the courts to define the meaning of terms like
reasonable and nice? A ban on spanking, perhaps? A minimum of
one candy bar per day? Would we let the courts override all
state and federal laws that conflict with their
interpretations?
We don't need constitutional amendments to embody our broad
agreement on such general principles. And we should leave it
to the states (and Congress) to detail rules for applying
such principles to the messy realities of life, as the states
do in laws dealing with child abuse and neglect. Legislatures
periodically revise and update such laws--as they revise and
update victims' rights laws--to correct unwise judicial
interpretations, fix unanticipated problems, resolve
troublesome ambiguities, and incorporate evolving social
values. It would be far, far harder to revise or update a
constitutional amendment.
James Madison wrote that the Constitution's cumbersome
amendment process was designed for ``great and extraordinary
occasions.'' This doesn't come close.
____
[From the New York Times, Apr. 3, 2000]
Don't Victimize the Constitution
Some bad ideas keep recycling back. The latest version of
the so-called ``victims' rights amendment'' to the
Constitution, a pandering and potentially disruptive measure,
is being readied for a full Senate vote by the end of the
month.
There is no question that victims of violent crime deserve
respect and sympathy in the criminal process, and programs to
help them recover from their trauma. But adding this
amendment to the nation's bedrock charter could alter the
Constitution's delicate balance between accuser and accused,
and even end up subverting the victims' main interest--timely
and fair prosecution and conviction of their assailants.
To protect victims from insensitive treatment as their
cases move through the criminal system, the amendment would
establish a new constitutional mandate that victims be
notified and allowed to participate in prosecutorial
decisions and judicial proceedings. There is widespread
concern among the defense bar, the law enforcement community
and even some victims' rights groups that the amendment would
undermine defendants' rights, give rise to litigation that
delays trials and interfere with legitimate plea bargain
deals and other aspects of prosecutorial discretion. States
are already experimenting to find practical ways to address
victims' complaints, consistent with the demands on
prosecutors and constitutional protections for defendants. To
the extend improvements are needed, the answer is to pass
laws to fine-tune the system, not clutter the Constitution.
The bill's two main sponsors--Senators Jon Kyl, an Arizona
Republican, and Dianne Feinstein, a California Democrat--have
been busily rounding up new co-sponsors. All are supporting
an amendment that could inflict unintended consequences on
victims, the justice system and the Bill of Rights.
Mr. BYRD. Mr. President, I shall have more to say along this line. I
shall wait until another date to address this particular amendment that
is before the Senate.
I yield the floor and again thank the Senator from Minnesota and
thank my friend from Vermont.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. WELLSTONE. I thank the Chair.
Mr. President, I am more than pleased to give the Senator from West
Virginia a good deal of my time. His words are profoundly important. I
do not think there is anybody else in the Senate who can speak on this
question the way Senator Byrd can, and I hope Senators hear him.
After hearing Senator Byrd, I am going to be very brief. I do not
know what I can add to what has been said by other Senators. The way I
want to make my argument in just a couple of minutes, actually, is to
say this: Senator Feinstein asked me: Do you need to be down on the
floor and is it going to be one of these back-and-forth slugfest
debates? I said: No, not at all. I do not have any disrespect for what
you and Senator Kyl are doing, two colleagues whom I like; it is just
that, for me, I am reluctant to support any constitutional amendments.
The bar is very high. It is a high threshold test to me. Even for
such a noble purpose as campaign finance reform, when Senator Hollings
offered his amendment, I did not vote for it. I did not vote for a
constitutional amendment to ban the desecration of the flag. I believe
there have to be compelling reasons to vote for a constitutional
amendment, and I do not think my colleagues have made a compelling
case.
I point out that States have moved forward with their own victims'
rights legislation or constitutional amendments and, to my knowledge,
their work has not been successfully challenged in the courts. I point
out that Senators Leahy and Kennedy have legislation that gives victims
more rights. They want to do it statutorily.
As I see it--and I am not a lawyer--first we go this route and see
what the States do. We can also say this is a national concern, a
national question. Certainly that is my framework. I do not want to be
inconsistent. First we try it statutorily. We pass our law. If the
Supreme Court judicial review declares the law to be null and void,
then at that point in time we may, indeed, want to come forward and say
there is no alternative but to amend the Constitution.
The Chair will smile but I am conservative about this question, for
all the reasons Senator Byrd has so ably explained to all of us.
The second point I wish to make is a little different, and it is my
own way of thinking about it. I do believe, if we are going to talk
about victims' rights, there is a whole lot I want us to do. I want us
out here legislating. I made this argument this morning, and I do not
know that I need to make it again.
Mr. President, I yield to the Senator from New Mexico for a moment.
Mr. BINGAMAN. Mr. President, I thank the Senator from Minnesota. I
yield a half hour from the time I have under cloture to Senator
Daschle, the leader on the Democratic side.
Mr. LEAHY. Mr. President, if the Senator will withhold, I wonder,
just from a discussion I have had since I last spoke with him, would
the Senator be willing to yield that half hour to the distinguished
Senator from West Virginia, Mr. Byrd?
Mr. BINGAMAN. Mr. President, I so yield the time to the Senator from
West Virginia. I thank the Senator from Minnesota and yield the floor.
[[Page S2926]]
Mr. WELLSTONE. Mr. President, my second argument is that I want, to
the best of my ability, to represent the people in Minnesota, for that
matter the people in the country, and I can think of a lot of
legislation we could be working on that will give victims more rights.
I have legislation I have been trying to get out on the floor which
deals with violence against women and children--they are victims--that
provides more protection, that can prevent this violence, that can save
lives. Let's get at it legislatively. I do not say it so much in
response to this effort on the part of my colleagues from California
and Arizona, but, again what I was saying this morning, I hope soon we
will get back to the vitality of the Senate, which is we go at it; we
have legislation; we have vehicles; and we have amendments. We bring
legislation to the floor, we debate, and we vote up or down. That is
what we are here to do.
I say to my colleagues who are concerned about victims' rights, I
have legislation I want to bring to the floor that I believe does a
whole lot by way of protecting victims, by way of making sure people do
not become victims, in particular women and children.
My third point is, of course, one of the problems with a
constitutional amendment as opposed to a statutory alternative is that
it is very difficult to undo what is done. There are some questions I
have about this effort. A lot of the work I do with my wife Sheila
deals with violence directed at women and children, what some call
domestic violence. I ask unanimous consent that letters from the
National Clearinghouse For The Defense of Battered Women and the
National Network to End Domestic Violence be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Clearinghouse For The
Defense of Battered Women
Philadelphia, PA, April 14, 2000.
Senator Wellstone,
U.S. Senate,
Washington, DC.
Dear Senator Wellstone: We are writing to you to express
our strong opposition to S.J. Res. 3, the proposed victims'
rights amendment to the Constitution of the United States.
The National Clearinghouse for the Defense of Battered
Women has opposed each version of the proposed victims'
rights amendments that has been introduced over the past four
years. After reviewing S.J. Res. 3, the National
Clearinghouse for the Defense of Battered Women stands firm
in our opposition. Although the current proposed amendment
addresses some of the issues we raised in the past, we
continue to have grave concerns about the new proposal and
continue to oppose it.
We have attached the position paper of the National
Clearinghouse for the Defense of Battered Women opposing S.J.
Res. 3. We believe that our arguments remain compelling and
relevant to the newly proposed amendment.
In the interests of ensuring justice for battered women and
children, we urge you to vote ``no'' to the amendment.
Sincerely,
Sue Osthoff,
Director.
____
National Network To End
Domestic Violence,
Washington, DC, March 23, 1999.
Hon. Orrin Hatch,
Chairman, Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Chairman Hatch: I write to apprise you of our
continued opposition to the proposed constitutional amendment
to protect the rights of crime victims. After careful review
and consideration of S.J. Res. 6, we find that despite some
minor changes since the 105th Congress our concerns with this
proposed constitutional amendment have not changed.
The National Network to end Domestic Violence is a
membership organization of state domestic violence coalitions
from around the country, representing nearly 2,000 domestic
violence programs nationwide. As you may be aware, many of
our member coalitions and programs have supported the various
state constitutional amendments and statutory enactments
similar to the proposed federal constitutional amendment. And
yet, we view the proposed federal constitutional amendment as
a different proposition, both in kind and in process.
For a victim of domestic violence, the prospect of
participating in a protracted criminal proceeding against an
abusive husband or father of her children is difficult enough
without the added burden of an unforgiving system.
Prosecutors, police, judges, prison officials and others in
the criminal justice system may not understand her fear, may
not have provided for her safety, and may be unwilling to
hear fully the story of the violence she's experienced and
the potential impact on the impending criminal proceeding
sentencing and release of the defendant. Each of these
potential failures in the system underscore the need for the
criminal justice system to pay closer attention to the needs
of victims. Unfortunately, S.J. Res. 6 promises much for
victims, but guarantees little on which victims can count to
address these practicalities.
Let me outline some of our concerns.
First, if a constitutional right is to mean anything at
all, it must be enforceable fully by those whose rights are
violated. The proposed amendment expressly precludes any such
enforcement rights during a proceeding or against any of
those who are charged with securing the constitutional
rights. The lack of such an enforcement mechanism is a fatal
flaw--a mere gift at the leisure of federal, state and local
authorities.
Secondly, the majority of the existing similar state
statutes and constitutional amendments have been on the books
fewer than 10 years. Thus, given our very limited experience
with their implementation, it will be many years before we
have sufficient knowledge to craft a federal amendment that
will maintain the delicate balance of constitutional rights
that ensure fairness in our judicial process. Without
benefiting from the state experience, we run the risk of
harming victims. We must explore adequately the effectiveness
of such laws and the nuances of the various provisions before
changing the federal constitution. State constitutions are
different--they are more fluid, more amenable to adjustments
if we need to ``fix'' things. A change in the federal
constitution would allow no such flexibility, thus
potentially harming victims by leaving no way to turn back.
And, lastly preserving constitutional protections for
defendants, ultimately protects victims. This is especially
true for domestic violence victims. The distinctions between
defendant and victim are sometimes blurred by circumstance.
For a battered woman who finds herself thrust into the
criminal justice system for defending herself or having been
coerced into crime by her abuser, a justice system that
fairly guarantees rights for a defendant may be the only
protection she has. Her ultimate safety may be jeopardized in
a system of inadequate or uneven protections for criminal
defendants, as is likely with the enactment of S.J. Res. 6.
Chairman Hatch, these are concerns that compel us to
exercise restraint before proceeding with a constitutional
amendment. As you know, in this country each year, too many
fall victim to violent crime. These crimes cause death and
bodily injury, leaving countless victims--women, men, boys
and girls--to pick up the pieces. Tragically, the criminal
justice system is less a partner and more an obstacle to the
crime victim's ability to attain justice. A constitutional
amendment is not the answer for this problem. But, improving
policies, practices, procedures and training in the system
would help tremendously.
Like you, we are committed to ensuring safety for domestic
violence victims through strong criminal justice system
enforcement and critical services for victims. However, the
resources that must be invested into the process of passing
such an amendment and getting it ratified by the states could
be better invested in training and education of our
judiciary, prosecutors, police, parole boards and others who
encounter victims and in changing the regulations and
procedures that most adversely impact victims. For those of
us working in the field of domestic violence, we know the
harm that can be caused directly to victims when policies are
pushed without some experience to know whether they will
work. And, while this may seem an inconsequential concern,
for a battered woman whose safety may be jeopardized by such
swift but uncertain action, the difference may be her life.
Please understand that our opposition to S.J. Res. 6 is not
opposition to working through the traditional legislative
channels to deliberate these issues and to support
legislative changes that will allow us to explore various
ways in which we can provide victims the voice they deserve
in the criminal justice system.
Thank you for your consideration. If you have additional
questions, please do not hesitate to be in touch with me at
202/543-5566. We have appreciated your leadership on issues
concerning domestic violence over the years and look forward
to continuing to work with you.
Sincerely,
Donna F. Edwards,
Executive Director.
Mr. WELLSTONE. Mr. President, there is a tremendous amount of concern
that what will happen is that batterers--and it is happening all too
often right now--can accuse those whom they have battered as being the
batterers, basically saying they are the victims, which then, in turn,
triggers all sorts of rights that are in this amendment.
There is tremendous concern, and I will not read through all of it,
when it comes to a particular part of the population--women and
children who are, unfortunately, the victims of this violence in the
homes--that, in fact, this constitutional amendment will have precisely
the opposite effect that is intended, especially when it comes to
[[Page S2927]]
protection for women and children; it will lessen that protection for
women and children.
I quote from the NOW Legal Defense and Education Fund:
While many women are victims of violent crime, women are
also criminal defendants. Self-defense cases, dual arrest
situations, or the abuse of mandatory arrest and mandatory
prosecution policies by batterers who allege abuse by the
victim, exemplify contexts in which women victimized by
violence may need the vital constitutional protections
afforded defendants.
There is a whole question of how this gets implemented, what happens
to these women and children. Given the fact this is a big part of my
work in the Senate, I ask unanimous consent that this NOW Legal Defense
Fund position paper be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
NOW Legal Defense and
Education Fund,
New York, NY, April, 2000.
Position Statement on Proposed Victims' Rights Amendment
Legislators in the 106th Congress plan to introduce a
proposal to amend the U.S. Constitution by adding a
``Victims' Rights Amendment.'' Because NOW Legal Defense and
Education Fund (NOW LDEF) chairs the National Task Force on
Violence Against Women, and, as an organization that works
extensively on behalf of women who are victims of violent
crime, including our fight against domestic violence, sexual
assault, and all forms of gender-based violence, we have been
asked to analyze this proposal.
NOW LDEF agrees with sponsors of victims' rights
legislative initiatives that many survivors of violent crime
suffer additional victimization by the criminal justice
system. We appreciate the injustices and the physical and
emotional devastation that drives the initiative for
constitutional protection. Nonetheless, we do not agree that
amending the federal Constitution is the best strategy for
improving the experience of victims as they proceed through
the criminal prosecution and trial against an accused
perpetrator. Any such amendment raises concerns that outweigh
its benefits. After considering the potential benefits and
hardships, and particularly considering the circumstances of
women who are criminal defendants, NOW LDEF cannot endorse a
federal constitutional amendment elevating the legal rights
of victims to those currently afforded the accused. However,
we fully endorse companion efforts to improve the criminal
justice system, including initiatives to ensure consistent
enforcement of existing federal and state laws, and enactment
and enforcement of additional statutory reform that provide
important protections for women victimized by gender-based
violence.
The need to improve the criminal justice system's response to
women victimized by violence
It is true that survivors of violence often are pushed to
the side by the criminal justice system. They may not be
informed when judicial proceedings are taking place or told
how the system will work. Although many jurisdictions are
working on improving their interactions with victims, many
victims still experience the judicial system as an ordeal to
be endured, or as a forum from which they are excluded. They
often experience a loss of control that exacerbates the
psychological impact of the crime itself. Certainly women
victimized by violence face the persistent gender bias in our
criminal justice system, which includes courts and
prosecutors that fail to prosecute sexual assault, domestic
violence, and other forms of violence against women as
vigorously as other crimes. All too often, criminal justice
officials blame the victims for ``asking for it'' or for
failing to fight back or leave. these negative experiences
make it more difficult for women victimized by violence to
recover from the trauma and may contribute to reduced
reporting and prosecution of violent crimes against women.
As amendment proponents have stressed, increased efforts to
promote victims' rights potentially could have a strong and
positive impact on women who are victims of crime. The entire
public relations and educational campaign mounted on behalf
of the amendment can be very informative. Criminal justice
system reform can give victims a greater voice in criminal
justice proceedings and could increase their control over the
impact of the crime on their lives. For example, notice of
and participation in court proceedings, including the ability
to choose to be present and express their views at
sentencing, could be psychologically healing for victims.
More timely information about release or escape and
reasonable measures to protect the victim from future
stalking and violence could improve women's safety. Women
could benefit economically from restitution. Nevertheless,
because statutory protections and state constitutional
provisions already may provide some or all of these
improvements, because additional statutory and state-level
reform can be enacted, and because no reform will be
effective absent strict enforcement, we do not support a
federal constitutional amendment to address the problems
facing women crime victims.
Why a Federal Victims' Rights constitutional amendment is
problematic
Supporters of a federal victim's rights constitutional
amendment begin with the fundamental premise that survivors
of violence deserve the same protections that our judicial
system affords to an accused perpetrator, and that their
interests merit equal weight in the eyes of the state. They
urge amending the U.S. Constitution to balance treatment of
victims and defendants, positing that other protections,
whether granted by statute, or implemented through policy,
custom, training or education, could be limited at some point
by the rights guaranteed to defendants under the Fourth,
Fifth, Sixth and Eighth Amendments to the federal
Constitution. However, adding constitutional protections that
could offset the fundamental constitutional protections
afforded defendants marks a radical break with over two
hundred years of law and tradition carefully balancing the
rights of criminal defendants against the exercise of state
and federal power against them.\1\ It is our belief that the
proposed reforms can be afforded under statutes and state
constitutions. The constitutional amendment proposal contains
complex requirements that are far better suited for statutory
reform.
---------------------------------------------------------------------------
Footnotes at end of statement.
---------------------------------------------------------------------------
The position of a survivor of violence can never be deemed
legally equivalent to the position of an individual accused
of a crime.\2\ The accused--who must be presumed innocent,
and may in fact be innocent--is at the mercy of the
government, and faces losing her liberty, property, or even
her life as a consequence. While the crime victim may have
suffered grievous losses, she, unlike the defendant, is not
subject to state control and authority. A victims' rights
constitutional amendment could undercut the constitutional
presumption of innocence by naming and protecting the victim
as such before the defendant is found guilty of committing
the crime. Amendment proposals leave undefined numerous
questions ranging from the definition of a ``victim'' to
whether victims would be afforded a right to counsel, or how
victims' proposed right to a speedy trial would be balanced
against defendants' due process rights. Proposals also inject
an additional party (the victim and her attorney), to the
proceedings against a defendant as a matter of right,
increasing the power of the state and potentially diminishing
the rights of the accused, particularly in the eyes of a
jury.
The demonstrated existing inequalities of race and class in
the modern American criminal justice system only increase the
importance of defendants' guaranteed rights. Affording
alleged and actual crime victims a constitutional right to
participate in criminal proceedings could provide a basis for
challenge to those bedrock principles that assure justice and
liberty for all citizens.
While many women are victims of violent crime, women are
also criminal defendants. Self-defense cases, dual arrest
situations, or the abuse of mandatory arrest and mandatory
prosecution policies by batterers who allege abuse by the
victim, exemplify contexts in which women victimized by
violence may need the vital constitutional protections
afforded defendants. These cases highlight the need for
constitutional protection for criminal defendants belonging
to groups historically subject to discrimination.
Proposed alternatives to address the needs of women
victimized by violence
NOW LDEF supports efforts to improve the experience of
victims in the criminal justice process. Many statutes and
state constitutions already contain the reforms contained in
amendment proposals. Additional mechanisms for change include
enhanced implementation and enforcement of existing state and
federal legislation, enacting new statutory protections,
increased training for judicial, prosecutorial, probation,
parole and police personnel, and improved services for
victims such as the more widespread use of victim-witness
advocates. Funding available under the Violence Against Women
Act can continue to be directed to crucial training and
victims' services efforts. Additional statutory reform and
funding for program implementation, particularly targeted to
eliminate gender bias in all aspects of the criminal justice
system can go a long way toward assisting women who have
survived crimes of violence.
Statutory reform requiring prosecutors and other criminal
justice system officials to take such measures as requiring
timely notice to victims of court proceedings are modest and
relatively inexpensive steps that would have a great impact.
We must work to provide better protection for victims--
through consistent enforcement of restraining orders, and by
training law enforcement officials and judges about rape,
battering and stalking, so that arrest and release decisions
accurately reflect the potential harm the defendant poses.
NOW LDEF hopes the attention drawn to this issue will promote
greater dialogue about the problems that victims face in the
criminal justice system, and will increase the criminal
justice system's responsiveness to women victimized by
gender-motivated violence.
footnotes
\1\ Reported litigation under state constitutional amendments
is limited, but illustrates the potential conflicts in
balancing the rights of victims and the rights of the
defendants. While in some cases the victim's state rights did
not infringe on the defendant's federal rights, see, e.g.,
Bellamy v. State of Florida, 594 S.2d 337, 338 (Fla. App. 1st
Dep't 1992) (mere
[[Page S2928]]
presence of the victim in the courtroom in a sexual battery
case would not prejudice the jury against the defendant), in
others the defendant's federal rights took primacy. See.
e.g., State of New Mexico v. Gonzales, 912 P.2d 297, 300
(N.M. App. 1996) (sexual assault victim's rights to fairness,
dignity and privacy under state amendment did not allow her
to prevent disclosure of medical records to defendant); State
of Arizona ex rel Romely v. Superior Court, 836 P.2d 445, 449
(Ct. App. Ariz. 1992) (despite victim's right to refuse
deposition in this case where defendant claimed she stabbed
her husband in self-defense, she would be unable to present a
sufficient defense without the deposition and thus she could
force him to be deposed).
\2\ It may be less legally problematic to recognize the
interests of victims by affording them a voice at sentencing
or at another post-trial proceeding, after a defendant's
guilt has been determined.
Mr. WELLSTONE. Mr. President, I thank my colleagues for their effort.
Again, the threshold has to be very high. I speak in opposition.
With the indulgence of my colleagues, since I have been out here for
a good period of time, I ask unanimous consent that I may have 5 more
minutes for morning business to cover two matters.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. I thank the Chair.
(The remarks of Mr. Wellstone pertaining to the introduction of S.
2465 are located in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I yield to the Senator from North Carolina.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. I yield 30 minutes of my time to the Democratic leader,
Senator Daschle.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I would like to correct the Record with
respect to the effectiveness of the Victims Rights Clarification Act of
1997.
In the course of this debate on this proposed constitutional
amendment, the two principal sponsors of this constitutional amendment,
my friends Senator Kyl and Senator Feinstein, have spoken at some
length about the Oklahoma City bombing cases. They have repeatedly
cited that case as evidence that Federal statutes are not adequate for
protecting crime victims, and that nothing but a constitutional
amendment will do the trick.
They have said that ``the Oklahoma City case provides a compelling
illustration of why a constitutional amendment is necessary to fully
protect victims' rights in this country'' and that the case shows ``why
a statute won't work.''
I have a very different take on the lessons to be learned from the
Oklahoma City bombing cases. In my view, what happened in that case is
a textbook example of how statutes can and do work, and why the
proposed constitutional amendment is wholly unnecessary.
For many years, the proponents of this amendment have pointed to one
particular ruling to support their cause. On June 26, 1996, during the
first Oklahoma City bombing case, the Timothy McVeigh case, the trial
judge, Chief Judge Richard Matsch, issued what I and many other
Senators thought was a bizarre pretrial order. He held that any victim
who wanted to testify at the penalty hearing, assuming McVeigh was
convicted, would be excluded from all pretrial proceedings and from the
trial. Judge Matsch's reasoning, as I understand it, was that victims'
testimony at sentencing would be improperly influenced by their
witnessing the trial.
The U.S. Attorneys who were prosecuting the case promptly consulted
with the victims and concluded that Judge Matsch's ruling failed to
treat the victims fairly, so they moved for reconsideration. But Judge
Matsch denied the U.S. Attorneys' motion and reaffirmed his ruling on
October 4, 1996.
As I mentioned, I, like the prosecutors, thought that Judge Matsch's
order was wrong. I did not believe that anything in the Constitution or
in Federal law required victims to make the painful choice between
watching a trial and providing victim impact testimony.
The issue during the trial phase is whether the defendant committed
the crime. The issue on which victims testify at the sentencing is what
the effects of the crime have been. There is nothing that I know of, in
common sense or in American law, that suggests that allowing a mother
who has lost her child to hear the evidence of how her child was
murdered would somehow taint the mother's testimony about the
devastating effects of the murder on her and her family's lives.
So on March 14, 1997, I joined Senator Nickles, Senator Inhofe,
Senator Hatch, and Senator Grassley in introducing the Victims Rights
Clarification Act of 1997. This legislation clarified that a court
shall not exclude a victim from witnessing a trial on the basis that
the victim may, during the sentencing phase of the proceedings, make a
statement or present information in relation to the sentence. This
legislation also specified that a court shall not prohibit a victim
from making a statement or presenting information in relation to the
sentence during the sentencing phase of the proceedings solely because
the victim has witnessed the trial.
In addition, and just as importantly, the Victims Rights
Clarification Act preserved a judge's discretion to exclude a victim's
testimony during the sentencing phase if the victim's testimony would
unfairly prejudice the jury. It allowed for a judge to exclude a victim
if he found a basis--independent of the sole fact that the victim
witnessed the trial--that the victim's testimony during the sentencing
phase would create unfair prejudice.
My cosponsors and I worked together to pass the Victims Rights
Clarification Act within a timeframe that could benefit the victims in
the Oklahoma City bombing case. The Senate passed this bill by
unanimous consent on March 18, 1997, and President Clinton signed it
into law the very next day. I am very proud of how we worked together,
Republicans and Democrats, the Senate and the House, the Congress and
the President, to pass the Victims Rights Clarification Act in record
time, and I believe that its speedy passage speaks volumes about our
shared commitment to victims' rights.
More important for this debate than how fast Congress acted, however,
is how fast Judge Matsch responded. One week after the President signed
the Victims Rights Clarification Act, Judge Matsch reversed his
pretrial order and permitted victims to watch the trial, even if they
were potential penalty phase victim impact witnesses. In other words,
Judge Matsch did what the statute told him to do. Not one victim was
prevented from testifying at Timothy McVeigh's sentencing hearing on
the ground that he or she had observed part of the trial.
Senator Kyl has said that the statute did not work; he suggested that
we are now stuck with a judicial precedent that somehow prevents
victims from sitting in the courtroom during a trial. Sen. Feinstein
has said that the Victim Rights Clarification Act is ``for practical
purposes a nullity.'' It's just not true.
Beth Wilkinson, a member of the Government team that successfully
prosecuted Timothy McVeigh and Terry Nichols, told our Committee how
well the Victim Rights Clarification Act worked. I can do no better
than to quote her words, because she was there, in the trenches; she
devoted 2\1/2\ years of her life to obtaining justice for the victims
of the Oklahoma City bombing. Here is what Ms. Wilkinson, one of the
lead prosecutors in the case, told the Judiciary Committee:
What happened in [the McVeigh] case was once you all passed
the statute, the judge said that the victims could sit in,
but they may have to undergo a voir dire process to determine
. . . whether their testimony would have been impacted . . .
I am proud to report to you that every single one of those
witnesses who decided to sit through the trial . . . survived
the voir dire, and not only survived, but I think changed the
judge's opinion on the idea that any victim impact testimony
would be changed by sitting through the trial. . . . [T]he
witnesses underwent the voir dire and testified during the
penalty phase for Mr. McVeigh.
Ms. Wilkinson went on to say:
It worked in that case, but it worked even better in the
next case. Just 3 months later when we tried the case against
Terry Nichols, every single victim who wanted to watch the
trial either in Denver or through closed-circuit television
proceedings that were provided also by statute by this
Congress, were permitted to sit and watch the trial and
testify against Mr. Nichols in the penalty phase.
That operated smoothly. The defendant had no objection, and
the judge allowed every one of those witnesses to testify
without even undergoing a voir dire process in the second
trial. . . .
I think that proves . . . [that] you do not want to amend
the Constitution if there are
[[Page S2929]]
some statutory alternatives. And I saw the Victim Rights
Clarification Act work. Within a year of passage, it had been
tried two times and I believe by the second time it had
operated smoothly and rectified an interest and a right that
I think the victims were entitled to that had not been
recognized until passage of that statute.
Senator Feinstein said that Judge Matsch ``ignored'' the Victim
Rights Clarification Act. But Ms. Wilkinson was there, and she says the
judge did not ignore the statute, he did apply it, and that any initial
uncertainty about the constitutionality of the statute was resolved in
the McVeigh case, and not a problem in the second trial, against Terry
Nichols. In addition, I am unaware of any subsequent case in which the
Victim Rights Clarification Act has been less than fully effective.
I hope this lays to rest, once and for all, the repeated assertions
of the proponents of this constitutional amendment that the Oklahoma
City bombing cases proved that victims cannot be protected by ordinary
legislation. There was one very unfortunate ruling that went against
victims' rights at the start of the McVeigh case. That ruling was
promptly opposed by prosecutors, swiftly corrected by Congress in the
Victims Rights Clarification Act, and duly reversed by the trial judge
himself before the trial began. The Victims Rights Clarification Act is
working.
After Ms. Wilkinson testified before the Committee, I asked one of
our other witnesses, Professor Paul Cassell, to comment on what Ms.
Wilkinson had said about the Victims Rights Clarification Act.
Professor Cassell represented some of the victims of the Oklahoma City
bombing, and he advised Senators in connection with the formulation of
that legislation.
Knowing that Professor Cassell is now one of the leading advocates of
the proposed victims' rights amendment, I wanted to give him an
opportunity to explain what he thought the proposed constitutional
amendment would have provided the Oklahoma City bombing victims that
the Victims Rights Clarification Act did not provide.
The only thing that Professor Cassell could think of was that the
amendment would have given the victims ``standing''. In other words, in
addition to enabling the victims to watch the trial and testify at the
sentencing hearing, which the statute admittedly accomplished, the
amendment would have entitled Paul Cassell and other lawyers for the
victims, and the victims themselves, to demand additional hearings and
to argue before Judge Matsch.
If standing is the only thing that was missing in the Victims Rights
Clarification Act, then we have to ask ourselves two things. First,
assuming that we want to provide standing for victims and their lawyers
to make legal arguments as well as to testify in criminal cases, do we
need a constitutional amendment to achieve that? None of the sponsors
of the constitutional amendment have explained why that could not be
done by statute.
Second, and more importantly, do we really want to give standing to
victims and their lawyers, and allow them to raise claims and challenge
rulings during the course of a criminal case?
Remember, we are not arguing about whether victims are entitled to
attend the trial, whether they are entitled to testify, or whether they
are entitled to restitution. Of course they should be, and they already
are in most States. The ``standing'' question is a procedural one,
about whether victims' rights and the interests of an efficient and
effective criminal justice system are best protected by allowing
prosecutors to run the prosecution, or by bringing in teams of
plaintiffs' lawyers--or, I guess, they would now be called victims'
lawyers--to argue over how the case should be conducted.
I am committed to giving victims real and enforceable rights. But I
am not convinced that prosecutors are so incapable of protecting those
rights, once we make them clear, that every victim needs to get their
own trial lawyer. Indeed, from my own experience as a prosecutor, and
from what I have seen of Ms. Wilkinson and the dedicated team that
prosecuted the Oklahoma City cases, I am confident that prosecutors
have victims' interests at heart.
Senators Kyl and Feinstein mentioned that some of the victims of the
Oklahoma City tragedy support their proposed constitutional amendment.
I think the point needs to be made that some of those victims do not
support the amendment. They were satisfied with the way that Ms.
Wilkinson and her colleagues handled the case, and pleased and relieved
with the results they achieved.
One of the victims even testified before Congress in opposition to
this proposed amendment. Emmett E. Walsh, who lost his daughter in the
bombing, told the House Judiciary Committee the following:
I know that many people believe that a constitutional
amendment is something that crime victims want. However, I
want you to know that as a crime victim, I do not want the
Constitution amended. . . . I believe that if this
constitutional amendment had been in place it would have
harmed, rather than helped, the prosecution of the Oklahoma
City Bombing case.
In the Timothy McVeigh case, the trial judge got the law of victims'
rights wrong in an initial pretrial ruling. Through the normal
legislative process, we fixed the problem before the trial began. What
that history shows is not that statutes don't work; it shows precisely
why they do. If we got the law of victims' rights wrong in a
constitutional amendment, or the Supreme Court interpreted a
constitutional victims' rights amendment wrongly, a solution would not
come so swiftly. That is why Congress should be slow to
constitutionalize new procedural rights that can be provided by
statute.
Mrs. MURRAY. Mr. President, I rise today to express my strong support
of the rights of crime victims and of all Americans. In the last few
years, Congress has passed laws to increase the rights of crime victims
and their families. Congress has provided crime victims the right to
attend and to speak at court proceedings, the right to be notified of a
criminal's parole or escape, and the right to receive restitution.
Congress has been able to expand victims' rights by doing what we do
often--pass laws. Today, we are asked to do something we do very
rarely--to amend the United States Constitution.
I support crime victims. I want to expand their protections, but I
don't believe that amending the Constitution is the best way to do it.
As the examples I mentioned have shown, we can expand and clarify
victims' rights significantly--without tampering with the Constitution.
A constitutional amendment is not necessary to help crime victims.
Any time we think about changing the Constitution, we must consider
the words of James Madison, its principal author. Madison explained
that amending the Constitution should only be reserved for ``certain
great and extraordinary occasions,'' when no other alternatives are
available.
Despite all the changes in our country over the last 213 years, we've
only amended the Constitution on 27 occasions, 10 of which were the
Bill of Rights. Most of these constitutional amendments were passed to
reflect fundamental changes in the attitudes of Americans such as
ensuring the rights of minorities and the right of women to vote.
This is not a ``great and extraordinary occasion.'' In the last 20
years, we in Congress and the states have done a good job of ensuring
better and more comprehensive rights and services for crime victims.
There are more than 30,000 laws nationwide that define and protect
victims' rights. There are tens of thousands of organizations that
provide assistance to people who have been victims of crime.
Thirty-two States have passed constitutional amendments in their own
state constitutions to protect the rights of crime victims. My own home
State of Washington has both laws on the books and provisions in our
state constitution that provide crime victims and their families the
right to attend trial, the right to be informed of court proceedings,
the right to make a statement at sentencing or any proceeding where the
defendant's release is considered, and the right to enter an order of
restitution. There is no evidence that the laws in my state and others
like it are failing to protect victims.
Not only is this not a ``great and extraordinary occasion,'' but this
amendment could actually erode the rights of Americans rather than
expand on them. Defendants in criminal proceedings in this country are
presumed to be innocent. This amendment would
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give victims and their families the right to be heard at all critical
stages of the trial. This amendment could allow victims to sway the
trial against a defendant before they have been convicted, thus
seriously compromising the presumption of innocence.
The amendment could also compromise a defendant's right to a fair
trial. Judges have enormous discretion in determining which witnesses
should be able to attend the proceedings in their courtroom. Many
times, a witness' testimony could be compromised if that witness hears
the testimony of others. For example, if the victim is allowed to hear
the testimony of the defendant, the victim could change his or her
testimony based on what the defendant said. Even worse, if a victim
attends the testimony of the accused, the trauma or intimidation they
experience could damage their subsequent testimony.
The judge should have discretion over who can be excluded from the
courtroom at particular stages of the trial to ensure that the
defendant has a fair trial. This amendment would give victims the right
to attend the entire criminal trial regardless of whether the judge
believes their presence could taint the fairness of the proceeding.
Judges help ensure that defendants have a fair trial. This amendment
would jeopardize that protection.
The amendment could also affect defendants and the prosecutors'
ability to present their case. The amendment would give victims a right
to intervene and assert a constitutional right for a faster disposition
of the matter. In many cases, the defendants and prosecutors need time
to develop their arguments. This amendment could force a premature
conclusion to cases that may require additional deliberation.
In some cases, the victims are actually defendants. This happens many
times in domestic violence cases when the abused victims finally defend
themselves from their attacker. In these cases, the abuser could
actually be granted special rights that could place a domestic violence
victim at greater risk. Why should the abuser get special rights? This
is one reason why many domestic violence victims' advocates oppose this
amendment.
Finally, the proposed victims' rights amendment could hurt effective
prosecutions and would place enormous burdens on the criminal justice
system. The amendment gives victims the right to be notified and to
comment on negotiated pleas or sentences. More than 90 percent of all
criminal cases do not go to trial but are resolved through negotiation.
Giving victims a right to obstruct plea agreements could backfire by
requiring prosecutors to disclose weaknesses in their case. It could
also compromise the ability of a prosecutor to gain the cooperation of
one defendant to improve the chance of convincing others. In the end,
guilty defendants could better present their case if they are privy to
strategy and details of the prosecutions' case. The rights of
notification could also result in large burdens on the criminal justice
system, compromising resources to effectively prosecute criminals.
An amendment to the Constitution is not the right approach. We should
continue to do the things that have worked in the past without taking
this drastic step. Current State and Federal laws give victims
extensive rights at trial.
For these reasons, I have cosponsored a proposal by Senators Leahy
and Kennedy. This statutory change would give crime victims the right
to be heard and be notified of proceedings and the right to a speedy
trial. It would also enhance participatory rights at trial and do other
things to give victims and their families a greater ability to get
involved in the prosecution of the criminals that harmed them. All of
these rights would be subject to the judge's discretion. We in Congress
should not be in the business of telling judges how to balance the
rights of the accused and those of the victims.
I urge my colleagues to support the Leahy/Kennedy compromise and
reject the constitutional amendment that may do more to compromise the
rights of Americans rather than expand them.
Before, I close, I want to make one final point. If we really want to
do something for crime victims, we should reauthorize the Violence
Against Women Act, VAWA, which expires this year. If we do not act, we
jeopardize funding and we miss a vital opportunity to strengthen this
historic act.
Even using conservative estimates, one million women every year are
victims of violent crimes by an intimate partner. We know that one in
three women can expect to be the victim of a violent crime at some
point in her life. The chance of being victimized by an intimate
partner is ten times greater for a woman than for a man. Domestic
violence is statistically consistent across racial and ethnic lines--it
does not discriminate based on race or economic status. Eighty-eight
percent of victims of domestic violence fatalities had a documented
history of physical abuse and 44 percent of victims of intimate
homicide had prior threats by the killer to kill the victim or self.
These are frightening statistics and show us that violence against
women is a real threat. How will a Constitutional amendment prevent
these crimes or even provide safety and support to the victims?
VAWA changed the entire culture of violence against women and
empowered communities to respond to this devastating plague. Since 1995
we have provided close to $1.8 billion to address violence against
women. VAWA funding supports well over 1,000 battered women shelters in
this country. The National Domestic Violence Hotline enacted as part of
VAWA, fielded 73,540 calls in 1996 alone, and in 1998 the hotline
fielded 109,339 calls. We have many success stories and we know what
works.
There is no reason to delay reauthorization. We still have so much
more to do. We know the demand for services and assistance for victims
is only increasing. As a result of more outreach and education, women
no longer feel trapped in violent homes or relationships. Domestic
violence is no longer simply a family problem but a public health
threat to the community. While we have seen an explosion in funding for
battered women's shelters, we also know that hundreds of women and
children are still turned away from overcrowded shelters. We have heard
reports that individual states had to turn away anywhere from 5,000 to
15,000 women and children in just one year. I know that limited safe
shelter space is a growing problem in Washington state. What can we do
for these victims? What rights do they have? The reauthorized
legislation, S. 51, provides much greater hope to these victims than
even federal and state laws to protect the rights of victims in the
court process. The bill currently has 47 cosponsors.
If we are concerned about victims and the rights of victims we should
be acting to reauthorize and strengthen VAWA.
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