Whenever I bring up the subject of our government’s illegal spying upon the people of this country there is always that one person who says, “If you don’t have anything to hide, why should you worry whether or not they are watching/listening to you?” If I were wearing a blood pressure monitor when people make that statement you’d see my blood pressure spike at least 100 points; that’s how much that statement angers me.
Yet, for the sake of argument, let’s assume that statement is true; that if you have nothing to hide then you should not worry about who is seeing or hearing it. Why then does our government see the need to classify hundreds of thousands of documents per year? Why is it that there are files dated 50 years ago are still classified and unavailable to the public? What is it that our government has to hide from us?
Are you aware that when the Clinton e-mail scandal broke, that there were an estimated 30,000 classified files found on Hillary Clinton’s private server? There is absolutely no telling how much our government has classified as Secret or Top Secret; just to keep us from having access to it. And people have the gall to tell me that I’m the one who is paranoid!
Are you also aware that former State Department employee, Richard Blum, once said, “No matter how paranoid or conspiracy-minded you are, what the government is actually doing is worse than you imagine.” If that doesn’t cause you to fear your government then I fear that nothing will.
Staying focused on the government’s surveillance of the people of this country, are you aware that as far back as 1975 our government has had this capability? Edward Snowden may have pulled back the curtain to reveal the extent to which we are monitored and surveilled, but the government has had the ability to do so for decades. On a 1975 episode of Meet the Press, Senator Frank Church stated, “If this government ever became a tyrant, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.”
If we violate the law, then we know deep in the recesses of our minds, that we will be hunted by law enforcement; possibly to face fines, jail time, or even execution if the crime warrants it. That is the nature of having laws; there is always a punishment for those who violate them…well almost always. The Constitution, and the laws passed in pursuance of it are considered law; our elected representatives take an oath to support and defend it; then once elected turn their backs on that oath and violate what it says with impunity. What recourse do we have to impose justice upon those who violate the law we have instituted which governs the actions of our government? And before you say, “We can vote them out of office” let me tell you that is not punishment, it is the natural course of things in an elective government. If they get voted out of office due to maladministration, or violating their oaths of office, do they pay fines, or spend a single day incarcerated? I didn’t think so; they go home; fat from the profits they’ve made; often to K Street lobbying firms to represent business interests who want access to our nation’s halls of power.
So again, how do we punish those who violate our Constitution? Truth be told, without taking up arms against them, we can’t. Are you aware that before the Constitution went into effect this fatal defect was noticed by Patrick Henry? On June 7, 1788 Henry stood upon the floor of the Virginia Ratifying Assembly and said, “Where is the responsibility — that leading principle in the British government? In that government a punishment, certain and inevitable, is provided: But in this, there is no real actual punishment for the grossest maladministration. They may go without punishment, though they commit the most outrageous violation on our immunities. That paper may tell me they will be punished. I ask, by what law? They must make the law — for there is no existing law to do it. What — will they make a law to punish themselves? This, Sir, is my great objection to the Constitution, that there is no true responsibility — and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.”
They get away with this because you, and by YOU I mean the general public, do not know, or care, what limitations the Constitution imposes upon those whom we elect to be our representatives. We have become more of a representative democracy than we are the Republic Franklin promised upon leaving the Philadelphia Convention. In a Republic the rule of law governs the governors; in a representative democracy the will of the majority is all that is needed to enact law.
Have you ever stopped to ask yourself why government whistleblowers are hounded so persistently; why they are persecuted, denigrated, and often charged with treason? Is it because they are releasing information that can threaten our national security, or is it because they are releasing information which proves that our government is engaging in unconstitutional or criminal activities? If you think about it, even the mob, (Organized Crime) silences informers; why should we believe our government to be any different. Just look at the trail of dead bodies left in the wake of the Clinton’s if you don’t believe me.
But there is a thing about informers, or in this case, whistleblowers that people need to understand. People think that those who blow the whistle on government are doing so because they have come to hate this country and want to hurt it. Not so, in fact, the reverse is often true; they do what they do because they see an injustice and want to bring it to the public’s attention. It’s like that H.L. Mencken quote which states, “The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime; he is a good citizen driven to despair.”
People have this absurd belief that our government is all powerful and all knowing. After all, it is comprised of men, and all men are flawed creatures; some more so than others. What makes those who represent us any better, any smarter, or less susceptible to the lust for power than we are?
Do they take a magic pill upon being elected which grants them knowledge ,wisdom and virtue, or do they remain the same flawed creatures they were before they were elected; only now that they have the cloak of authority we believe we must submit to whatever they tell us is ‘the law.’ Well, you know what Jefferson said about the law don’t you, he said it is often but the tyrants will, and always so when it violates the right of the individual. (Source: Letter to H. Tiffany, April 4, 1819)
Liberty, which is nothing if not the ability to fully exercise our rights, cannot exist in a nation of people that meekly submits to whatever laws their government passes without any resistance or protest. The only thing that can exist under such conditions is tyranny and oppression. Government is a force which always seeks to expand its power and its control over the lives of those it governs; ALWAYS!!! It is only by encountering sufficient opposition to these usurpations of power that government can be restrained from invading our rights.
Now by opposition I’m certain that some people’s minds immediately assume that I am talking about revolution. Not only would they be wrong in assuming that, it also proves that they do not have a true understanding of the relationship between governed and government, and that they also do not understand the relationship between the central government and the individual States. It also shows that they do not understand the importance of our right to trial by jury. For if they understood these things they would realize we have many options to resist the central governments unconstitutional assumptions of power, (or to use to correct term, usurpation), besides revolution, (although that always remains our right as the final option when all others have failed.)
We the people of these United States are the true sovereigns of this country; that is we hold all political power and authority in the United States. Those we elect only act on our behalf, and according to strict limitations we have imposed upon them in the form of a written constitution. In Perry v. United States, the court held, “In the United States, sovereignty resides in the people who act through the organs established by the Constitution. … The Congress as the instrumentality of sovereignty is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared.”
So, if Congress enacts a law which is in violation of the Constitution, or one which restricts the rights protected by Constitutional Amendment, what recourse do we have? Well, have you ever heard of nullification? Nullification is the concept that the States have the right and authority to nullify, or invalidate federal law which they find to be unconstitutional.
Nullification was first proposed, or espoused when President John Adams signed into law the Alien and Sedition Acts; causing the Vice President, Thomas Jefferson to draft the Kentucky Resolutions in opposition to these Acts. The very first thing Jefferson says in his Kentucky Resolutions is, “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…”
However, the States have, over time, fallen prey to the dark side, that is they have become infected with the same two party paradigm that permeates our federal government. As they are playing from the same playbook that those we elect to the federal government play by, they will not openly oppose, or attempt to nullify federal law; unless of course the law is, in fact, among those constitutionally authorized to government; such as how California thumbs its nose at the federal government’s attempts to enforce immigration law within California.
Does that leave us powerless to resist what we believe to be unconstitutional laws? Hardly.
Whenever I mention the Declaration of Independence it is in reference to Jefferson’s opening comments on the relationship between men and government, and the nature of their rights. However, the Declaration of Independence, if anything, is a grocery list of grievances leveled against the King of England which caused them to seek independence.
Are you aware that among the list of grievances was the Kings refusal, in some instances, to provide the Colonists with a trial by a jury of their peers? Are you aware that this was so grievous that after the Constitution was ratified it was amended to protect that right for all? The 6th Amendment is the amendment which protects this right, and it states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”
Are you also aware that Thomas Jefferson once said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Now why would Jefferson say that? I know for a fact that Jefferson held little regard for judges; at least those appointed to the high court. In fact, Jefferson had this to say about them, “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”
So why would Jefferson call trial by jury an anchor which can hold our government to the principles of its constitution? I don’t think people realize the power that they have as jurors. It has been my experience that there are two classes of people in this country as it pertains to serving on a jury; those who go grudgingly out of a sense of public duty, and those who would do anything to get out of having to serve. But there is a third category of people, however small it may be; and I fall into that category. There are those of us who pray for the chance to serve on a jury; just so that we might get the opportunity to nullify the law in question.
In most jury cases the jurors hear the evidence, then the prosecuting and defense attorney’s arguments regarding the defendant’s guilt or innocence, then they are instructed by the judge as to the law, then sent to decide the fate of the defendant. However, if a juror is well educated on the law, the Constitution, and the rights of the individual, then they may find that the law itself for which the accused is on trial for violating is, in itself, unconstitutional, and render a Not Guilty verdict.
You have to remember, that we as individuals are sovereign and all political power flows from us to those who represent us; including judges. It is within our power and authority to decide for ourselves what laws are unconstitutional, and render verdicts accordingly.
Judges do not instruct jurors of this power, and they certainly hope that no one on a jury in their courtroom is aware of this power held by the jurors. In fact judges like to believe themselves to be the sole expounders of law and legal theory, and they think that our understanding of these things makes us less qualified to understand the intricacies of criminal law. It’s like what Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is.”
Our ignorance of the law allows our government to far exceed the specific powers granted it. Our ignorance of the law causes us to meekly obey laws which are blatantly unconstitutional. Our ignorance of the law is what causes jurors across the land to render guilty verdicts when the law the defendant is accused of violating is blatantly unconstitutional. Jury nullification is not a game which one decides to play just because a juror does not like a law; one must have their ducks in a row if they wish to attempt to nullify a law in a jury trial. Nonetheless, it remains our right to do so if we truly believe the law to be unconstitutional, or if it violates the God-given rights of the defendant.
If you recall, I quoted Jefferson as saying that trial by jury is an anchor which can hold our government to the Constitution. Jefferson elaborated on this in a letter to John Cartwright, dated June 5, 1824, “the constitutions of most of our states assert that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, both fact and law, in all judiciary cases in which any fact is involved…” (My emphasis)
That is jury nullification simply defined; deciding both the law and the facts of all criminal cases. Are you aware that the very first Chief Justice of the Supreme Court, John Jay, recognized jury nullification as a right of the people? He did, and is quoted as saying, “The Jury has a right to judge both the law as well as the fact in controversy.”
In the 1972 case of U.S. v Dougherty, the D.C. Circuit Court of Appeals held, “The jury as an unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge…The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge…”
In U.S. v Moylan, the 4th Circuit Court of Appeals basically held the same opinion, “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence..If the jury feels that the law under which the defendant is accuse is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide by that decision.”
Even John Adams wrote about this power in his diary, stating, “It is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Judges won’t tell you of this power that is yours to exercise; in fact they will penalize anyone openly attempting to disseminate this information to potential jurors. In fact, the courts have held that judges may seek to lessen the chance that jurors may nullify the law by instructing them that they have no authority to disregard the law as given by the judges, or seeking to obtain their assurance that they will not attempt to nullify a jury before they are called to serve on one. (Source: People v. Estrada, 141 Cal.App.4th 408, July 14, 2006)
Could this be because if jurors knew of this power it would knock judges off their perches as being the high and mighty expounders of law, or could it be because they know that if the people were that informed, then government would have a serious problem on its hands; that being that they could not convict anyone of unconstitutional crimes because the people were too well informed?
Like I said, jury nullification is not a game one chooses to play simply because they do not like a law. If you choose to exercise this right you must have your facts straight; for you are going to face 11 other jurors who are going to have been swayed by the evidence and the judge’s instructions to them. But if you are firm in your beliefs and have your facts in order, you may even sway one or two of them to your position. Regardless of whether you do or not, jury nullification is your right, and it is a very powerful check on the government which is held in the hands of those from whence all political power and authority originates; the people. It is our way of telling government, “We the jurors find that this law exceeds the specific grant of powers to government, and we therefore find that the accused is not guilty of violating the law, because the law itself is a crime against the Constitution and the rights of the individual.”
People often ask me which right protected in the first ten amendments to the Constitution is most important; freedom of speech or the right to keep and bear arms? I say they are all important, otherwise they wouldn’t be there. But if the government ever sought to do away with trial by jury; which it has in cases involving terrorism, then that sets off alarm bells in my head. When you deprive a person the right to be judged by a jury of their peers, you deprive not only the accused of their right to a speedy trial, you deprive the people of the right to find the defendant not guilty because the law they are accused of violating is, in and of itself, criminal.
It’s funny, freedom of speech is so widely accepted as vital to the continued ability of the people to voice their opposition to the policies of our government, yet nobody seems to care about the power their voice holds as a juror to nullify laws they believe to be unconstitutional.
Whatever you choose to do with this information is up to you; I only wanted to share it with you for you to file away in the back of your minds as just one more thing the government does not want you to know about.
All I know is that if you ever find yourself charged with violating a statute you believe is a violation of your rights; you’ll pray to God there is someone like me on the jury.