Can We Hold Government Accountable?

“If voting made any difference, they wouldn’t let us do it.”
~Samuel L. Clemens~
Mark Twain

I’m going to come right out and say it, voting doesn’t do a damned thing to change the system, it only changes those who get to run it. By voting you reaffirm you faith in the system by choosing who gets to operate it; and nine times out of ten those voting know little to nothing about the purpose for which the system was supposed to be established.

If you were to stand outside a polling place on election day and ask those who exited who they voted for and why, what you would probably hear is a repetition of the campaign promises made by whatever candidate that individual voted for; you would be lucky to find one in a thousand who said that they had voted for their choice because they seemed inclined to support and defend the Constitution and Bill of Rights.

I wrote one of my longest articles to date yesterday on why I think the Constitution is a piece of trash, but still, had we held our government to the specific powers mentioned within it we wouldn’t be in half of the mess we are today.

I get the distinct impression that most people don’t understand the concepts of consent of the governed and delegated powers. Most people seem to be of the opinion that when they elect someone they are elevating them to a position of authority; which is so untrue that I barely know where to begin in debunking it.

First of all the Declaration of Independence says that all men are created equal; so how can we elevate someone into a position where they are superior to us without violating that fundamental rule? Secondly, the Declaration of Independence states that governments derive their powers from the consent of the people. What that means is that we choose them to be our representatives to act upon specific functions as outlined by a written constitution, and when they overstep the limits placed upon their powers they are committing a crime.

A constitution is similar to a power of attorney in which a principle delegates certain powers to an agent to act upon their behalf. Powers of attorney can be general or specific; meaning the power delegated to the agent can extend to all the affairs of a principles life, or they can be limited to a few specific functions.

Imagine you wanted to take an extended vacation and you needed someone to pay your bills while you were gone and maintain your yard in pristine condition. A power of attorney would be a good way for you to grant someone, a friend or family member, the power to access your finances to pay your bills, or possibly hire a yard maintenance service to keep your grass cut.

But, what if you returned from your vacation and found that your agent had completely remodeled your home while you were gone, or worse yet, sold it to someone else? If that were to happen to you, God forbid, would you have any legal recourse against the person you entrusted to act on your behalf?

The answer is yes, you would have the means to bring your designated agent to justice. Charges could be brought against the agent and restitution paid for damages they may have inflicted upon you or your property. Also, a third party auditor could be appointed to review the financial activities undertaken on your behalf to find if fraud or embezzlement was committed. Finally, the agent may be found guilty of a crime and not only be required to pay back all that they stole from you, but penalties may also be attached for their misconduct.

So why, if I may be so bold to ask, does the Constitution not include some provision that allows us; the principles, to ensure that our agents; the government, act within the specific powers delegated to them, and impose penalties upon them should they overstep those limits?

You say, “Well Neal, we can vote them out of office.” Is that punishment? Is that providing us with restitution for the crimes they committed under the authority delegated to them? Using my power of attorney analogy you may as well just accept your losses and employ someone else to act as your agent, as there would be no means by which the original agent could be punished for misconduct. That’s all you do when you vote someone out of office you don’t like, you let them go, free of any punishment for the misconduct which led you to terminate their employment as your agent.

Numerous times during the Virginia Ratifying Debates Patrick Henry spoke out against this deficiency in the Constitution, the inability of the people to hold the government outlined by the Constitution accountable, and to preserve their liberty. In one such instance Henry stated, “The Honorable Gentleman who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves, are gone; and you have no longer an aristocratical; no longer democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all?”

Two days later Mr. Henry arose and voiced the following concerns, “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.”

To put that into words that may be easier to understand, imagine that a Mafia Crime Boss is brought up on charges of racketeering. Instead of the charges leveled against him being investigated by a District Attorney they are investigated by OTHER Mafia Crime Bosses; who of course don’t want to have a light shone on their own crimes, so they refuse to bring charges against him. That’s what we expect though, for government to investigate itself, and bring charges against those who commit crimes against those who chose them as their agents.

Yet there is/was a means by which we the people could bring charges against those we elect to act as our designated representatives; that means being the function of Grand Juries. I know Wikipedia is not the best source for truthful information, nonetheless this is what Wikipedia has to say about a Grand Jury, “A grand jury is a jury – a group of citizens – empowered by law to conduct legal proceedings and investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify.”

So, theoretically, a group of citizens could convene a Grand Jury and investigate the crimes committed by an elected representative; going so far as to issue a subpoena requiring that the representative testify before them in defense of their actions and answering questions regarding the legality of those actions. If the Grand Jury found that the evidence supported the charges being leveled against the representative they could issue an indictment, and the case could proceed to a trial by jury. That, however, is where the deficiency in this mode of redress comes into play.

Let’s just say that a Grand Jury returns an indictment upon a Congressman, a Senator, or even the President, what court would hear their case; what prosecuting attorney would try it? Nary a judge in the system upholds constitutional law in their court; they base most of their opinions and decisions upon precedents set by other courts and Supreme Court rulings; which are merely those courts interpretation of what the Constitution says and means.
Thomas Jefferson wrote volumes on this very subject, showing his concern that the delegated powers of the government might be overstepped by how the courts interpreted the intent of those who ratified the Constitution.

In a letter to Justice William Johnson, Jefferson states, “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

To the wife of John Adams, Jefferson writes, “BUT THE OPINION which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”

In a letter to Thomas Ritchie, Jefferson states, “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet.”

In a letter to Judge Spencer Roane, Jefferson writes, “I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. … The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”
I could go on, but I would hope that by now you understand that Jefferson feared the power held by the Judiciary and that they should not be the final voice in deciding what is, and what isn’t constitutional; that power should be reserved to the people or the States.

Jefferson affirmed that in his draft of the Kentucky Resolutions, wherein he stated, “Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority.”

Yet our justice system has been hijacked by judges who decide for themselves what is constitutional and what isn’t; leaving us with no means of enforcing that document upon those we elect to represent us – even if the people had the will to do so.

Does that mean that we the people are totally defenseless against a government that can, and has, violated the trust imposed upon those we elect? No, but the solution requires that the people be knowledgeable as to what the Constitution says, and more importantly, how it was promised it would operate to those who ultimately ratified it. That requires study, lots of it; something most people are loathe to do. To understand how the Constitution was promised to those who ratified it requires that people first unlearn everything they have been taught about the Constitution, then relearn the truth about it. That takes time, and a lot of it; and most people simply aren’t willing to expend that much time to become educated.

The only mode of redress we have as individuals, to both hold government accountable and to preserve our liberty is through the process of trial by jury. In 1789 Thomas Jefferson wrote a letter to Thomas Paine, author of Common Sense, wherein he stated, “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.”

And how can a jury trial hold government accountable, or preserve our liberty if the whole system is rigged? Why it’s quite simple actually; for a person to be found guilty of a crime they must have a verdict rendered against them by a jury upholding the charges leveled against them. If that jury renders a NOT GUILTY verdict, then no matter what the government says, that person walks free.

This principle is known as jury nullification, and has a long history behind it. In fact, the Sixteenth American Jurisprudence, 2nd Edition, Section 177 states, “Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”

So, while the judges may dictate what their thoughts are on the law regarding the case in question, it is up to the jurors to decide for themselves if the law itself is valid or void. If the jurors feel that the law violates a person’s fundamental rights, or if the law exceeds the powers given government by the Constitution, it is not only their right, it is their duty to deliver a NOT GUILTY verdict.

As recently as 1972 the D.C. Court of Appeals held, ” [The jury has 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; for example, acquittals under the fugitive slave law.” (United States vs Dougherty)

In 1969 the 4th Circuit Court of Appeals held, “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 accused 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 power to acquit, and the courts must abide by that decision.” (United States vs Moylan)

In 1794 the Chief Justice of the Supreme Court, John Jay, held, “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”(Georgia v Brailsford)

And going back to before the Constitution was written, John Adams wrote the following into his diary, “It is not only [the juror’s] 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.”

How many people across this country bitch and moan about what their government is doing, yet turn around and use every means at their disposal to avoid having to serve on a jury? Yet jury duty is the only means we have left to tell the government, “Fuck your laws, they don’t apply to us as free men and women!”

I have so badly wanted to get on a jury so that I could hang it if I felt the law itself violated the defendants God-given rights, or was blatantly unconstitutional. The other day I told someone I’d die to be on the jury if Edward Snowden ever came back to stand trial in the U.S.; I’d hang that jury so fast they’d get whiplash!

Can you imagine the tremors it would send through the government if millions of people decided not to pay their income taxes, and when they were brought up on charges of tax evasion the juries found then NOT GUILTY? We could bring the government to its knees if people only understood their power as jurors; but it all depends upon your willingness to serve while at the same time having a thorough understanding of your rights and the limits imposed upon your government.

And therein lies the flaw in that mode of redress; it requires the people to care, to be informed, and to have the courage to stand against the tide of the masses who accept that their government does have the authority to do all these unconstitutional things. There simply aren’t enough informed people in this country to make jury nullification a viable means of halting the spread of tyranny across this once free land.

But that’s why I’m here, to share the knowledge I have gained with those of you who don’t have the time, or inclination, to pour through thousands of pages of old documents. I try to condense what I’ve learned into these essays; but as my favorite T-shirt says, “I can only explain things for you, I can’t understand them for you.” You’ve got to put to use the things I teach you, otherwise I may as well be talking to a tree for all the good it will do. As Johann Wolfgang von Goethe said, “Knowing is not enough, we must apply.”

If people don’t put to use the knowledge, the truth that has been hidden from them, then all is truly lost. But, if people turn off their TV’s put down their iPhones, and start learning the truth, there is a chance, albeit a slim one, that we can truly make America great again without relying upon an oppressive government to do so.

About Br'er Rabbit

I'm just one person out of millions of others. The only thing different about me is that I don't walk around with my head up my ass.
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