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Rep. Ron Paul (R-Tx)-Defends Constitution Against Attack by Columbia Law Professor who Says Its "Unsound"
(House of Representatives - August 01, 1997)
The SPEAKER pro tempore. Under the Speaker's announced policy of January 7, 1997, the gentleman from Texas [Mr. Paul] is recognized for 60 minutes as the designee of the majority leader.
Mr. PAUL. Mr. Speaker, we all know that when we come here to the Congress, the only oath that we take is to the Constitution. Yet I think very often we here in the Congress are careless about the Constitution and that we do many things that do not comply.
A recent article in the New Republic calls attention to this subject and more or less ridicules and downplays the importance of the original intent of the Constitution. Today I would like to discuss that article and reiterate the importance of the Constitution and the reason why we must have the rule of law rather than the rule of man.
The principle of original intent which underpins the Constitution is under serious attack. This is nothing new, but there is now a much more open challenge to this principle than ever before. A case in point is the New Republic article of June 23, 1997, called 'Unsound Constitution,' where George Fletcher, a Columbia law professor, viciously attacks all Constitutionalists, vicious because he uses modern-day McCarthyism to tie any individual defending the Constitution and its original intend to all Oklahoma City type bombings.
In this very significant article, voicing a strong anticonstitutional viewpoint, Fletcher uses McVeigh to discredit not just the misdirected and ill-advised promoters of violence but the entire American Revolution and the goals set by the Founders.
Failing to consider that McVeigh flaunted property rights and the personal liberties of innocent people, Fletcher nevertheless uses him as an example of a true defender of the U.S. Constitution by using some of McVeigh's quotes. This New Republic's article falsely equates the bombing of innocent people with those who strictly interpret the Constitution, a document which Fletcher describes is 'fundamentally wrong.' Professor Fletcher goes to the heart of the matter. He openly attacks the principle that rights are 'vested in the people' and claims it was this principle that McVeigh used to justify what he did.
Painting with a very broad brush, Fletcher hopes to dispense with the entire Constitution and its protection of individual and minority rights. If the New Republic, Fletcher, and his allies get away with this preposterous assertion, it will further undermine the principles of individual rights.
Fletcher claims the greatest myth surrounding the Constitution is that the people are sovereign and that sovereign people will inevitably engage in actions like that of Timothy McVeigh. Equally threatening to the 'big government' theory is that this concept of sovereignty, with rights being left to the people, would justify jury nullification, a horrible and dangerous thought as far as they are concerned.
Jury nullification allows acquittal when a juror refuses to vote for a conviction for moral, constitutional, or even racial reasons. Yet jury nullification is a tradition of long standing, not only in American law but in the British law as well, dating back to the Magna Carta in 1215 A.D. But Fletcher refers to jury nullification as 'obstruction of justice,' equivalent to overt sedition against the Government.
Fletcher is consistent and even condemns the black left for endorsing this notion that juries have some type of veto power over bad legislation. Several professors from the left now advise that injury nullification can and should be used in certain cases to repeal unjust laws when they are specifically targeted against African-Americans, such as with drug laws. Obviously, this veto power of the people should be used to nullify unjust laws in general, not just against black Americans.
What the New Republic and Fletcher fail to recognize is that this is a technique that could have been successfully used in the fifties and the sixties in the civil rights struggle, with a lot less violence resulting. The thought that the people retain enough sovereignty and authority to veto our legislative bodies threatens Fletcher and other 'big government' proponents.
The Fully Informed Jury Association, a movement of well known significance today, must be having an impact on our society, or why would we all of a sudden see a systematic attack on this concept?
This attack is not limited to the New Republic. The New York Times has chimed in as well, expressing deep concerns about this dangerous notion that people ultimately have a say about the constitutionality of legislation.
If Fletcher had his way, he would argue that the people's only recourse to bad law is strictly limited to the ballot box, while excluding the jury box. The boldness with which Fletcher attacks the original intent of the Constitution is frightening, but also helpful in getting us to understand exactly what the goal is of the supporters of the new Constitution.
The fundamental flaw in the old Constitution, according to Fletcher, is, 'The original Republic, the one for which our forefathers fought face to face, hand to hand, exists only in the minds of academics and fundamentalist patriots. The Republic of 1789 is long gone. It died with 600,000 Americans killed in the Civil War. That conflict decided once and forever that the people and States do not have the power to govern their local lives apart from the Nation as a whole.'
He argues that the original Republic died, and deserved to do so, because of its flaw in dealing with slavery. But how can this single admitted flaw be reason to reject all the worthy parts? This is only an excuse to reject the entire concept of the Doctrine of Enumerated Powers and the idea of the rule of law in contrast to the rule of man. And all this is to be accepted as fact because this flaw in the concept of individual rights with regards to slavery supposedly led to the irrational acts of McVeigh.
Fletcher laments the absence of the word 'equality' appearing in the Constitution, a word, of course, dear to the hearts of all socialists. Clearly, it is economic equality he is talking about. He complains that in 1789 equality was less important than the fear that a Federal Government might infringe our liberties. What Fletcher does not realize is that the large majority of American people are still fearful of that very same thing.
What actually scares the anticonstitutionalists like Fletcher is, today there is once again a growing number of Americans who fear and distrust the Federal Government and yet do not relate in any way to the McVeighs of the world. His only hope is to discredit the constitutionalists and the entire principle of the Doctrine of Enumerated Powers by slanderous innuendoes, associating them with violence towards innocent victims. Fletcher makes McCarthy look like a saint.
Fletcher boldly now refers to the new Constitution, the one that shapes and guides the National Government, and, unfortunately, in a real sense, I am fearful that he is correct that a new Constitution, or at least the way the original one is treated by Congress, the courts, and the administration, prevails and guides most government action today.
Up until now, it has been subtle and seductive, but the boldness with which Fletcher and the New Republic try to bury the old Constitution should alert us all to what is happening.
Fletcher argues that the notion of organic nationhood replaced the sovereignty of the people. That, I am sure, a lot of Americans were not aware of. And the United States evolved from an elitist republic into a democracy, so he says. Jefferson and Franklin would be shocked. This idea, he claims, was not acceptable by the Founders, since they lived only for the moment.
He talks as if truth and liberty were not meant for the ages. This proposition, he argues, allows 'the sustained campaign to convert the elitist Constitution of 1789 into an egalitarian Constitution that bases democratic rule on the majority of all the people,' thus endorsing the dictatorship of the majority while destroying the concept of minority rights.
Fletcher clearly here endorses the very flaw, limited as it was, that permitted the acceptance of slavery in the original Constitution and that which he pretends to disavow.
In other words, he rejects the best part of the Constitution and retains the worst part, which permitted slavery, by endorsing the concept of the dictatorship of the majority while failing to protect inalienable and individual rights.
Fletcher's obvious goal is to promote the new Constitution, nationhood, equality and pure democracy, while burying the notion of the Republic, protection of individual liberty, and the rights of the minority. His main goal is to reject the notion that the people ultimately are the guarantors of the Constitution, the bestowers of legitimacy.
His final conclusion is that the States and the people no longer retain rights and powers, thus clearly and forcefully repealing the 9th and 10th amendments. With these gone, the people have no claims to real control over the Government.
What then is left for the people? They are still permitted, as Fletcher says, to be the voters, office holders, and the beneficiaries of legislation.
The theme of this devastating article is that it enforces the idea that Government does not get its power from the consent of the people and makes the citizen a creature of the state, with the Government no longer being a creation of the people through a voluntary social contract.
Fletcher is quite accurate when he admits the original Constitution strictly limited Government power, but subsequent legislation and court rulings, he argues, now permit intervention into the private affairs of citizens. This, of course, has led to the modern day Federal police state where there are tens of thousands of Federal regulations and laws. The administrative courts are now in charge, for the most part, outside of constitutional protections.
It is neither a coincidence nor an accident, as Fletcher brags, that we have arrived and can legalistically defend big government and justify it. He says this necessitates an activist Federal Government committed to preserving equality.
According to Fletcher, the welfare state and the force required to redistribute wealth is, therefore, justified, thus planting the seeds of a totalitarian state, which will come in due time if the course of events are not changed.
Fletcher is quite pleased to show that the new Constitution permits the income tax and all post-Depression welfare programs, and the prevailing theme of the whole article is that anybody who objects is a McVeigh. The concern for illegitimate use of force is absent from his discussion.
Unfortunately, this article speaks for many in government, especially in our courts. But, interestingly enough, it represents one of the very few honest articles arguing very clearly that the old Constitution and the old Republic are archaic and should be buried.
But ignoring the Constitution is not enough. We intellectually and philosophically must now reject it, according to this New Republic's theme, and anyone who disagrees will be guilty by association with those who would use violence against innocent people.
Supporters of the modern day gargantuan state never cared much for the original intent of the Constitution which severely restricts the power of the Federal Government. They are quite aware that the Doctrine of Enumerated Powers prohibits the Federal Government from almost everything it is currently doing.
To undermine the original intent of the Constitution, to limit the Federal Government, promoters of big government knew it would take constitutional amendment, court rulings, and constant legislative action, and even war to accomplish it. Is it possible that their task is complete and essentially a new Constitution has now replaced the old? Is this the reason for their boldness?
Many friends of freedom constantly worry that a Constitutional Convention to pass a balanced budget amendment poses a great danger because of the chance that, at such a gathering, the Constitution would be rewritten. Of course, there is no need for a Constitutional Convention, but the fear of losing our rights at one should be replaced with the concern for the changes ongoing with the present one.
If Fletcher is right, the new Constitution is already in place, not a literal one, but the one that we now follow has so radically changed that the Framers' original intent is no longer recognizable nor desirable by many.
Never have I read any article so forthright about the intent of the modern day social reformers. The boldness with which Fletcher buries the old Constitution should cause alarm for anyone interested in the experiment in freedom started in America more than 200 years ago.
By using this, the only significant flaw in the 1789 document, slavery, Fletcher throws out every good thing intended by the Constitution while preserving its one major shortcoming, majoritarianism, that permitted slavery in the first place.
Fletcher's love of the dictatorship of the majority to guarantee economic equality for all, while ignoring the principles of individual liberty, permits him to elevate the flaw which permitted the slavery compromise to the highest plane possible. In doing so, all of the grand elements of the old Constitution are effectively denied.
Getting relief from the oppression of the old Constitution, according to this article, with the Civil War and the subsequent changes thereafter, elevated the National Government, and especially the Federal courts, to a point far superior to the States and the people.
But the New Republic is not alone in expressing grave concern about the growing interests and understanding of injury nullification. It is now more commonly discussed on television and special programs and in newspapers like the New York Times.
A recent court case prompted an appeals court to warn us of the great danger of the fully informed jury and granted more power to judges to curtail this growing phenomenon. It is not only the political right they are concerned about. Minority groups on the left are using jury nullification more frequently than in recent memory.
It is not so much that the opponents of nullification are opposed to the goals of the left; it is that they fear the growing interest in jury nullification in the groups dedicated to the original interpretation of the Constitution may use it successfully. If the old Constitution is dead and the new one is now in place, the last thing they need is to have a bunch of uninhibited citizens expressing themselves through the common law practice of jury nullification.
It is, therefore, in their interests even if it requires attacking the left as well as the right, to stop this movement as quickly as possible. Just because it was part of our history for more than 100 years means nothing. Promoting a powerful state, which includes an authoritarian judiciary and ever present bureaucracy, is of greater importance to them.
This most recent victory for the promoters of the new Constitution, which includes further attack on jury nullification, occurred in the Manhattan Appeals Court in May. In the ruling, the court denounced the practice of jury nullification. Judge Jose Cabrares said to practice jury nullification is a violation of a juror's duty to follow instruction of the court.
The case involved nonviolent drug possession. Although the appeals court permitted the innocent verdict to stand, the court was emphatic that judges do have a right, and an obligation, to investigate a juror's motivation on a vote of acquittal.
Our history shows that this process helped prevent fugitive slaves from being sent back south before the Civil War period. John Peter Zenger, a colonial publicist, was freed by his peers on charges of sedition through this same process.
The practice of jury nullification during the twenties helped force the repeal of alcohol prohibition once the majority of people realized the laws were irrational and abusive.
Liberal black professors from George Washington University and Harvard are now urging jury nullification to promote civil rights in the courts. If this move to urge judges to judge all jurors' motivation is carried out, the process of jury secrecy will be a thing of the past and trial by jury just may be the last chance we have for revoking some of our Federal legislative monstrosities.
Congress has been irresponsible in this regard. The New York Times, May 27, 1997, editorializes, I am sure with mixed feelings, since jury nullification helps the left, strongly in favor of judges removing jurors who might be construed to be judging the wisdom of the law as well as the interpretation of the facts. But the New York Times knows the power of the people could weaken the powers of the Federal Government developed over the past 50 years through this process and literally repeal the interventionist state without waiting for a slow, plodding, and inefficient Congress to do it for them.
This puts fear into the hearts of all 'big government' advocates. Can one imagine what might happen if all nonviolent crimes were ignored by jurors? We would suddenly have room in our prisons once again for the rapists, muggers, and murderers.
District attorneys practice a form of jury nullification all the time in deciding frequently not to prosecute certain cases. Grand juries likewise fail to indict for personal or legal reasons, in spite of the facts presented. Many State constitutions still protect the right of the citizens to practice jury nullification.
Jury nullification is not perfect, but permitting it would be an improvement to the current system. Yes, there would be a chance that somebody might be freed for the wrong reason. But ultimately in a free society, sovereignty must remain with the people and not with the dictatorship of the majority or an elitist, powerful government.
There are enough mistakes made today with our jury system, and there is enough danger with a Government that is growing out of control, that jury nullification, something available since 1215 A.D., should be available to the citizens of this country. It could go a long way toward establishing a free society once again in America.
According to Lysander Spooner, a mid-19th-century writer, there are five separate tribunals protecting us from abusive government: The House of Representatives, the Senate, the executive, the courts, and the common law jury. He maintains that all are important but that the ultimate protection of our liberty must be placed in the hands of our peers. His 'Essay on the Trial by Jury,' 1852, deserves close study by all 20th century students concerned about the future of freedom in America.
John Jay, the first Chief Justice of the Supreme Court, agreed with this principle. In his first jury trial in 1794, Georgia versus Brailsford, he stated: "You have nevertheless a right to take upon yourself to judge of both and to determine the law as well as the facts controversy."
Jefferson was in agreement. "To consider judges as the ultimate arbiter of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
The 20th century, however, has witnessed a serious erosion of this principle. Since 1895, Sparf versus United States, the right of the jury to rule on the justice and constitutionality of the law as well as the facts in the case has been seriously undermined.
Also, the lack of concern and understanding for individual rights has affected jurors, just as it has affected the Representatives, Senators, judges, and Presidents.
Jurors in recent times have been just as guilty of ignoring the principles of equal rights as have our representatives in our legislatures, judiciary, and executive bodies of government. These two factors have greatly diminished the value of the jury in the 20th century.
Those frustrated with changes in the Congress, the executive, and the judiciary, and there is certainly good reason for frustration, must consider educating potential jurors as to the importance of the common law jury and the principles of individual liberty. An awakened citizenry participating in juries around the country could bring about a nonviolent revolution of magnificent proportion, reversing the sad trends of the 20th century.
The jury today is a weak institution, as are all the other institutions designed to guarantee individual liberty. Proper effort could revitalize the jury and restore it to its rightful place in curtailing the endless growth of an all-powerful government.
Several legal events in the 20th century had to occur for big Government to thrive. The deemphasis of the jury was crucial in the expansive powers of the omnipotent state. Judging the moral intent and the constitutionality of the law is no longer even a consideration of the jury. Today, judges instruct the jury to consider only the facts of the case, and then the judges become the sole arbiter of evidence admissible in court. Because of this, the jury system has become progressively weak over the past 100 years. In addition, judges write into their rulings grand designs for society. Our judiciary bodies have become legislative bodies.
Another problem is that a major part of the judicial system has been removed from the people by placing it in the administrative branch of Government. The agencies of Government have usurped power unimagined by the authors of the Constitution. Administrative justice is a great bureaucracy, independent of the legal judiciary.
Regulations are written yearly by the thousands of pages, read by few and understood by no one. This is done intentionally to intimidate and harass the people. It is used as a political tool for selective prosecution. Regulations can favor certain industries while destroying others and providing great accumulation of wealth for the beneficiaries.
Exemption from prosecution of some companies while others are pursued has destroyed many good industries and companies. Prosecution in the administrative courts requires great sums of money for self-defense. Juries are not available, and one is considered guilty until proven otherwise. Tragically, economic conditions usually prompt a businessman to pay the fine regardless of its unfairness to save legal costs. Fighting the system through political reform is not even a serious consideration. Those who could consider such a struggle are ridiculed as idealistic and unrealistic.
A powerful political action committee and a shrewd lobbyist are today considered the best investments. Since we have lived with massive bureaucracy for over 50 years, most citizens uneducated in the ways of equal justice, equal rights, and freedom, are unaware of any other system. By writing regulations with the force of law and administrative justice, interpretations, and enforcement of these laws, the administrative judiciary rulers have made a mockery of article I, section 1, of the Constitution.
Whether it is in the regular courts or the administrative courts, judges who grew up under the welfare ethic rarely concern themselves with the right to own and control the fruits of one's own labor. The rights of society, as they see it, preclude what they claim is a narrow self-interest: The individual.
Spooner argued eloquently for the right of the jury to pass final judgment on all laws, the moral intent of the law, the constitutionality of the law, the facts of the case, and the moral intent of the accused. Spooner's argument for allowing such responsibility to rest with the accused peers is that delegating responsibility only to the Representatives in Washington was fraught with danger. He was convinced that all government officials were untrustworthy and susceptible to bribery and that removal of our elected Representatives in the next election was not sufficient to protect the people from unwise and meddling legislation.
If we had heeded the admonitions of Lysander Spooner, we would not be faced with this crisis. Spooner began his essay on 'Trial by Jury' by clearly stating the importance of the jury's responsibility to judge the law as well as the facts in the case.
Quoting, 'For more than 600 years, that is since the Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law than that in criminal cases. It is not only the right and duty of jurors to judge what are the facts, what is the law, and what was the moral intent of the accused, but it is also their right and their primary and paramount duty to judge the justice of the law and to hold all laws invalid that are, in their opinion, unjust or oppressive, and all persons guiltless in violating or resisting the execution of such laws,' closed quote.
If a law is assumed to be correct constitutionally and morally merely because it is a law written by our chosen Representatives, Spooner argued that Government can give itself dictatorial powers, and that is exactly what has happened with the massive powers delegated to the President under the Emergency Powers Act: Power sitting there to be grabbed and used at the hint of a crisis.
Spooner saw the jury as the last guard against such usurpation of the people's rights. Sadly, that protection is just about gone. The citizens of this country ought to restore the principle of trial by jury to its rightful place of importance. It could go a long way in reducing the burden of Government now consuming more than half the energy of each working American.
The time has come to stop the systematic attack on individual liberty pervasive throughout the 20th century. The Constitution must prevail. If we in the Congress fail to abide by the original intent of the Constitution, the last hope will remain with the people and the jurors.
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What did George P. Fletcher write?
(In part):
“The ‘original republic’--the one for which our ‘forefathers’ fought ‘face to face-hand to hand, exists only in the minds of academics and fundamentalist patriots. The republic created in 1789 is long gone. It died with the 600,000 Americans killed in the Civil War.”
“The new Constitution--the one that shapes and guides the national government and disturbs the new patriots to their core--begins to take hold in the Gettysburg Address, in which Lincoln skips over the original Constitution.... This short speech functions as the Preamble to the new charter that crystallizes after the war in the Thirteenth, Fourteenth and Fifteenth Amendments.”
“Nationhood, equality and democracy--these are the ideas that forge the new Constitution. But Lincoln was a good, and lawyers always seek to camouflage conceptual transformations as the continuous outgrowth of language used in the past. That’s why he invoked government ‘by the people’ to capture the new principle of democratic rule. But the significance of the People had changed. They no longer exist as the guarantors of the Constitution, the bestowers of legitimacy. States and individuals can no longer set themselves apart from the nation. The people exist exclusively as voters, as office holders and beneficiaries of legislation.” George P. Fletcher (Columbia Law Professor), “Unsound Constitution”, The New Republic, June 23, 1997, pages 14-18.
Who is George P. Fletcher?
GEORGE P. FLETCHER
Cardozo Professor of Jurisprudence
B.A., California (Berkeley), 1960; J.D., Chicago, 1964; M.C.L., 1965. Admitted to California Bar, 1969. Began teaching law in 1965. Professor of law at the University of California (Los Angeles), 1969-83. Visiting professorships in Jerusalem, 1972-73 and 1993; Harvard, 1973-74; Yale, 1977; Frankfurt, 1980; Budapest, 1990; and Brussels, 1991. Joined Columbia faculty in 1983. Publications include Rethinking Criminal Law (1978), which received an Order of Coif award (1980); A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (1988), which received the ABA Silver Gavel Award (1989); Loyalty: An Essay on the Morality of Relationships (1993); With Justice for Some: Victims' Rights in Criminal Trials, (1995); Basic Concepts of Legal Thought (1996), Basic Concepts of Criminal Law (1998), published first in Spanish as Conceptos Basicos de Derecho Penal (1997). Publications include over 60 major articles on criminal law, comparative law, torts, and jurisprudence. Current fields of interest are criminal law, torts, and legal philosophy.
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My Comment: The People are the body politic, the national community of indiviuals as a whole. The idea of the People as sovereign must be viewed in this context. Individuals are not sovereign and never have been. Citizens owe their obligations to the Nation which is the national community of indiviuals as a whole.
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