[Congressional Record (Bound Edition), Volume 146 (2000), Part 5]
[Senate]
[Pages 5961-5982]
[From the U.S. 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 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

[[Page 5962]]

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 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

[[Page 5963]]

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 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

[[Page 5964]]

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?
  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

[[Page 5965]]

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.
  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

[[Page 5966]]

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, 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

[[Page 5967]]

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 
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

[[Page 5968]]

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.
  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.

[[Page 5969]]

  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 thought 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 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.

[[Page 5970]]

  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

[[Page 5971]]

miracle that the fledgling Nation managed to carry on and win the war 
under such conditions, but we can only guess 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

[[Page 5972]]

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.
  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

[[Page 5973]]

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 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.

[[Page 5974]]

  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 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

[[Page 5975]]

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-- 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''

[[Page 5976]]

     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 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

[[Page 5977]]

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.
  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

[[Page 5978]]

     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 
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

[[Page 5979]]

     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 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

[[Page 5980]]

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 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'

[[Page 5981]]

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 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

[[Page 5982]]

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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