By John Silveira
Issue #66 • November/December, 2000
Yesterday a voice asked, "Hey, Silveira!" I looked up. It was Dave Duffy, the publisher of Backwoods Home Magazine. He was fingering through his Rolodex. Without looking at me he asked, "Have you got Mac's number?" I knew he meant O.E. MacDougal, his poker-playing friend from southern California.
We had just gone through deadline and it had been frantic for weeks here on the editorial side of the magazine. Now there was a calm, the kind thunderstorms leave behind.
"I've got it on my computer," I said and started to open my address file.
Using what are called Executive Orders, they create laws that are not only illegal and unconstitutional, but are created without the consent of the Congress or the people of the United States. Some of these edicts, believe it or not, explicitly suspend the Constitution for an indeterminate amount of time on the whim of the President.
"Forget it," he said. He was holding one of the Rolodex cards in his hand and he picked up his phone and started to punch in a number.
My address file was open by now. I closed it.
"What's up?" I asked.
"I want to see if he wants to come up. Maybe we can get him up here after deadline."
"Deadline's over," I said.
"Yeah," he said.
"Sounds good to me," I said and I turned back to my computer, but I listened as he left an invitation on Mac's answering machine. He told him he should come up, go fishing, kick back, drink beerall the usual things.
When he hung up, he asked, "When's the last time he was up here?"
I thought about it. "Last fall, I think."
Like I said, that was yesterday. So, this morning, you can imagine my surprise when we got into the office and there was Mac asleep under the table that holds the printer. Dave had left his message barely 18 hours earlier and Mac lives 800 miles south of us. But there he was, under a blanket, on the floor.
Dave came in right behind me and stopped.
Mac opened one eye and looked at us.
"Are you okay?" Dave asked.
"With respect to the words general welfare, I have always regarded them as qualified by the detail of powers (enumerated in the Constitution) connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." —James Madison, 1751 1836, 4th President of the United States, "Father" of the Constitution
"Sure," Mac said and he got up from the floor like an old bull stretching his muscles.
"What are you doing on the floor? Why didn't you come up to my house or stay at one of the motels in town?"
"I got in around 2 a.m. and I'd had some brainstorms while I was driving. I wanted to do some stuff on your computer before I slept. When I finished...well..." He pointed to the floor.
"How'd you get in? Did I give you a key?" Dave asked.
Mac looked at Dave.
"Oh," Dave said and turned on his computer.
Something was left unsaid about the way Mac got in.
"What have you been doing the last few months?" Dave asked.
"The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt." —John Philpot Curran, (1750-1817)
Carol was his girlfriend. I'd met her a few times when I used to live down in southern California.
Mac didn't answer.
"How's she doing?" Dave asked again.
"I haven't seen her in a few months."
"Oh," Dave responded. After a slight pause he asked, "Any new prospects on the horizon?"
"None yet...I've seen your 'End of the World' specials," Mac said. He was changing the subject. "They're pretty creative."
"Yeah, they're fun to do," Dave said as he put his stuff down and sat down at his computer. It was going through the opening screens.
"I haven't seen you in almost a year," I said to Mac. "Did you survive Y2K okay?"
He smiled. "Yeah, talk about a bust. I never thought it would amount to much, but I didn't expect it to be a nothing."
"How's the world going to end next time?" Dave asked.
Mac gave him a quizzical look.
"You know," Dave added, "what do you think's going to be the next big problem that will end civilization as we know it?"
"Real or imagined problems?" Mac asked.
"That sounds like a trick question."
"There's no trick," Mac said. "It's just that some scenarios are imaginary, like the ones you see on the covers of the tabloids in the checkout line at the grocery market. But there are others that are credible and should be of concern."
"Okay," Dave said. "So let's make it real." He clicked on a screen icon and his computer started dialing up our Internet service provider.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
"The coming American dictatorship," Mac replied.
Dave glanced back for a moment, then looked back at his monitor. "Is there a punch line to this?" he asked.
"I hadn't planned on one."
"Come on, do you actually think a dictatorship is possible in this country?" I asked.
"A dictatorship is possible anywhere. Throughout history dictatorships are the conditions under which most people have lived."
Neither Dave nor I said anything but I could tell Dave was losing interest in downloading his e-mail.
"Pick any time in history," Mac continued. "Then make a mental estimate of what percentage of humanity lived under dictatorships of one kind or another at that time. There have even been times when everyone on the planet lived under a dictatorship of one sort or another."
There was another brief silence as neither Dave nor I responded.
"And, as if we can't stand freedom, it seems as if every place men have won freedoms, the generations that followed them gave them away. Always. There's evidence that that's what we're doing now."
"Now?" I asked.
"Us? We're doing it...in the United States?"
"That seems to be the way the wind is blowing."
"We have a Constitution that won't let that happen" I said.
"The Constitution will still be there and not a word of it will be changed nor will it have been amended. It will remain in place, a showcase to the world, but it will mean nothing."
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
"What's happening that makes you feel that way?" Dave asked.
"We're putting all the mechanisms in place that will make one possible. Two hundred years ago, our Founding Fathers had put as many obstacles as possible in the way of a dictatorship because they feared that unless there were obstacles, specifically, the safeguards in our Constitution, a dictatorship was inevitable.
"But even then, many of them weren't optimistic about our chances. When Benjamin Franklin was leaving the Constitutional Convention, a Mrs. Powell of Philadelphia asked, 'Well, Doctor, what have we got, a republic or a monarchy?' Franklin replied, 'A republic if you can keep it.' He expressed the sentiment of many of the delegates.
"Today, as if we're bent on proving the cynicism in Franklin's reply was deserved, we're ignoringno, we're actually throwing awaythe safeguards hammered out among the delegates to that Convention. We're not changing the wording or the intent of the Constitution, we're just ignoring it."
"What's happening that makes you see a dictatorship coming?" Dave asked.
Mac put his hands behind his head and leaned back in his chair. He was thinking. "If I had to summarize what's happening," he said, "I'd have to say there's not just one thing we have to worry about; there's a whole bunch of things that are undermining our freedoms. But I'm not going to say there's a conspiracy, like some people do, though there may be. I really don't know. But I'd have to say that if there's a concerted attack on our liberties, whoever's doing it is a lot smarter than we are and heor theyhave my grudging admiration because these changes aren't being forced on us, we're just going along with them."
"So, give us some examples of what's making a dictatorship imminent," I said.
Six signs of the end of America's freedoms
Mac thought again. "There are six things that I'd say are sure signs that we're in trouble.
"First there's the steady erosion of our basic rights, the ones a lot of people call our constitutional rights, though that's not a good name for them. It's better to think of them as natural rights, the way our Founding Fathers didor think of them as God-given rights if you want. Thinking of them as constitutional rights is part of what is getting us in trouble. You have to realize that our Founding Fathers didn't think of them as constitutional rights because they knew that if our rights are provided by either the Constitution or the government, what the government gives, it can also take away. As natural or God-given rights, they're absolute. That's the way they were intended.
"The next problem we have is related to this erosion of our rights, but I'd treat it as a whole separate category. It's the unintended consequences of having created new rightslegal rights created by Congress and which Congress and bureaucrats have decided supercede or nullify our natural rights. These include the new rights that have come about as a result of the Civil Rights Act of 1964, the Environmental Protection Act, and the American Disabilities Act. Unlike our natural rights, which come to us at the expense of no one else, the new rights have to be provided by someone else. It's in having to provide them that our government has found ways to erode our natural rights.
"Third there's the unconstitutional bypassing of our legislative process by the Presidentnot just this one in office now, but by all of the recent presidents.
"Using what are called Executive Orders, they create laws that are not only illegal and unconstitutional, but are created without the consent of the Congress or the people of the United States. Some of these edicts, believe it or not, explicitly suspend the Constitution for an indeterminate amount of time on the whim of the President.
"Fourth, there's the new rules and regulations imposed on businesses by our federal government by which the government circumvents our Fifth Amendment rights by insisting businesses spy on us. This includes banks, airlines, and even manufacturers of things like light bulbs and paper.
"Fifth is the creation of a professional, standing army. The Founding Fathers feared a professional army. They believed this country should depend on the militiaand I'm using the word 'militia' in the way they used it in the Second Amendment, meaning the body of citizen, not the National Guard or some other professional organization. Professional armies lose their allegiance to the citizenry and have a history of becoming the accomplices of tyrants. It's highly unlikely there would have been any protests to the illegal war we fought in Vietnam if we'd had a professional army then.
"Last of all, but not least, our economy is no longer a true free market economy. It is now one of the socialist economies. We're now a fascist economy. For all of our posturing about how bad fascism is, we have created a fascist economy as a compromise between capitalism and communism.
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.
"All of these changes are milestones on the road to tyranny. If they had all been invoked at once, we'd have seen them for what they are, an attempt to subvert what had once been the freest society history has ever seen. There'd have been a revolution in this country; blood would have run in the streets. But they've come over generations, and the American people, whose collective attention span is brief and whose memory is even shorter, have come to believe that the way things are in this country today is the way they've always been."
"It sounds like you're saying you believe we will definitely have a dictatorship," Dave said.
"I'd like to be able to say we won't, but I believe we will. I don't know when, and I'll admit I could even be proved wrong. Maybe, even though we are putting all mechanisms for a dictatorship into place...maybe it won't happen. Though why we'd want to tempt fate by putting all the machinery for a dictatorship in place, I don't know. But if I had to bet, I'd say that sometime in the not too distant future we will live under tyranny. Sometime after that historians are going to look back to where the United States stood on the dawn of the new millennium and wonder if we'd gone mad or if we were just idiots. History is not going to treat us well; I can almost assure you of that."
"What do you mean we have a fascist economy?" I asked.
"Wait a minute, let's take these in order," Dave said. He was now sitting back in his chair and had his feet up on the desk that is usually behind him. He had a yellow legal pad on one knee and a pencil in his hand. He was taking notes. "You said there are..." on his legal pad he counted the points Mac had made. "...six things that are bringing on a dictatorship. The first, you said, is the erosion of our rights."
"You should get off line," Mac said to Dave as he pointed to the computer behind him.
"Oh, yeah," Dave said, and he closed his Net connection.
Losing our natural rights
When Dave turned back he said, "Okay, start at the beginninglosing our rights. First of all, who's to blame for all of this?"
"The politicians and the bureaucrats," I said.
Mac seemed to consider what I'd said.
"Is that who you'd blame?" Dave asked Mac.
Mac looked up at the ceiling again. I could tell this wasn't going to be an easy answer. "You know," he said, "for decades we've been telling ourselves that to make government right, all we have to do is to get those guys in Washington to change their ways. But I don't feel that way anymore."
"Why not?" Dave asked.
"Because for years, while I've been talking to people about this very subject, I've been telling them our government is illegal, that it violates Article I, Section 8, of the Constitution, that it tramples all over the Bill of Rights. And just recently it dawned on me that in all those years not one person has ever said to me, 'Our government is legal; it complies with the Constitution.' Instead, they tell me, 'Things are different now.' Or, 'We have different problems now.'"
"So?" I said.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
"No one's defending the actions of the government as legal, constitutional, or even right. They're saying they know our government doesn't operate within the confines of the Constitution anymore, but they say that's okay because our problems are different from the problems the Founding Fathers faced. Or they just say the Constitution is old. Even Franklin Roosevelt said our Constitution was only fit for horse and buggy days and he never let it get in his way."
"What's your point?" Dave asked.
"The Constitution's being trampled on but we the people don't complain about it. We make no noise when the safeguards are breached. We don't protect our rights from the very entity our Constitution is meant to protect us from, our government itself. If we don't stop them, then it's our fault.
"The Constitution isn't there to tell us, the citizens, how to behave; it's there to set limits on government. We've got to hold them to it. For the first 150 years or so of this country, it worked pretty well. But now the government ignores the Constitution whenever it's convenient for them to do so. And I mean government at all levelsfederal, state, and the local level."
"But it still sounds like all we've got to do is to get government to change," I said.
"But they won't," Mac said to me.
"Why not?" Dave asked.
"Because the American electorate doesn't want them to change. We expect the so-called average citizen to obey the law, even when it's absurd or unfair, but we don't want our politicians or bureaucrats to have to obey it if we figure there's a payoff for us. And every time we allow exceptions to the Constitution, we do it because we expect some kind of payoff. You see, the worst enemy of liberty is not the tyrant without, it's the tyrant within us all."
"I still think it's the fault of politicians," I said.
"You can't blame politicians who we can vote out of office for what they do. We're the only ones who can change things, but we don't vote them out."
"You're saying the problems in this country can't really be blamed on the politicians or the bureaucrats; they're really our fault," Dave said.
"That's exactly what I'm saying."
"So we're bringing this tyranny down on ourselves."
"But the next batch we vote in will just do the same things," I said.
"Then you vote them out. These guys don't want to be one-term congressmen. How long do you think it'll be before they start acting like the hired help and not our masters?"
The livelihoods of police, bureaucrats, judges, lawyers, and many others depend on drugs being illegal and remaining illegal.
"I think they'll just keep doing what they're doing," I said.
"No," Dave interrupted, "Mac's right, they want to be more than one-term congressmen. Two or, at most, three elections in which they're being sent home and they'll learn to do what we want."
"The public opinion polls say people want lower taxes, less government..." Mac said.
"But in the ultimate polls, the elections themselves," Dave said, "we keep sending the people back to Congress who are giving us more government, more regulations, more taxes."
"Then we are bringing all of our problems down on ourselves," Dave said.
"That's the way I see it," Mac replied.
"So, what happened?" Dave asked. "Where'd we go wrong? How'd we go from a country that was free to this erosion of our rights?"
"You can start with one simple premise: we all want to be free, but we want to dictate to our neighbors. There's always something our neighbors do that we don't like and that we think there should be a law against. I'm not talking about murder or robbery where there's a victim and upon which we can get almost universal agreement that it's wrong. I'm talking about gambling, prostitution, drug use, putting additions on your house, wearing seat belts, how children are educated, etc. I think there should be a law against something you're doing or not doing and you, in turn, think someone should make a law against something I'm doing, and..."
He paused for a moment. "...there's always a politician trying to curry both of our votes. So he'll try to get the laws enacted, laws you want imposed on me and laws I want imposed on you. So we get drug laws, zoning laws, laws about politically correct speech, guns laws, restrictions on businessesyou name it and somebody wants it outlawed or regulated and there's a politician somewhere listening. But you can't blame him. He's just doing what both you and I and all of our neighbors are trying to do to each other.
"But the net result is that we are imposing tyranny on each other, often in defiance of the Constitution and the guarantees in the Bill of Rights, and we create bureaucracies to manage and enforce our rules and these bureaucracies benefit from the existence of these new rules, these new laws. And, no matter how unconstitutional they may be, soon the bureaucrats themselves will fight to keep bad laws in place, even when you and I have seen the light and want those laws repealed."
"Have you got specific examples of this?" Dave asked.
"I gave you some: zoning laws, blue laws, speech laws, campaign finance laws, but the example you can learn the most from is the War on Drugs because, in the beginning, I don't think anyone foresaw where it would lead us.
"Drug laws started out as tax laws not long after the turn of the century. But we need to fast forward to 1934, when Prohibition was repealed, to see how they got worse. When Prohibition ended, there was the question of what the government was going to do with all the agents it had hired to run down the bootleggers, speakeasy owners, and rumrunners. The obvious answer was to send them home. But FDR was too kind hearted to throw anyone out of work once they were living off the largess of the taxpayers, even though, in his election campaign, he had sworn he was going to cut the size of government. So he set this crew off to chase drug users.
"It was a practical decision. Prohibition had failed because it had been imposed on whites; whites wanted to drink so whites ended it. But whites didn't do drugs. Only blacks and Mexicans did. So Roosevelt turned the otherwise idle agents of the war on alcohol to pursuing drugs, and the rest was history."
"That sounds like blatant racism," Dave said.
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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
"It was. Of course, no one foresaw the 1960s when white kids would start smoking pot, dropping acid, and snortin' coke the way their parents and grandparents had been swilling beer, wine, and bathtub gin. But suddenly, white America found itself throwing its own children and grandchildren in jails."
"You've said before that the drug laws are unconstitutional," Dave said.
"They are. The federal government has no authority to make such laws. The 9th and 10th Amendments to the Constitution make it pretty clear that we can do with our bodies as we wish. The 14th Amendment says the states have got to leave us alone, too."
I grabbed a copy of the World Almanac from the bookshelf and turned to the Constitution. "What about the general welfare clause in the Constitution?" I asked.
"The general welfare clause is in the preamble to the Constitution. James Madison, the man most responsible for the Constitution and the author of the general welfare clause, said it is merely a statement of the intent of the Constitution and that the rules the government has to follow to carry out that intent, as well as prohibitions which apply to how the government is allowed to operate, are contained in the Articles and the Amendments. If the general welfare can be used to justify exceptions to the Articles and Amendments, and many Congressmen and their constituents believe it can be used to do exactly that, then it's the only thing that matters in the Constitution.
"Freedom of speech? Freedom of religion? Freedom to bear arms? Congress can then disregard them by invoking the general welfare clause. Want to be President for life? Invoke the general welfare clause and you never have to leave the White House."
"I see what you mean," Dave said.
"Why didn't they stop once white kids were being thrown in jail?" I asked.
"In a cruel twist of fate, by the 1960s the antidrug campaign had become a huge industry. There were people who benefitted from it despite the fact that it is illegal and was ruining millions of lives."
"Who benefits from it?" Dave asked.
"The livelihoods of police, bureaucrats, judges, lawyers, and many others depend on drugs being illegal and remaining illegal. And, like many other industries, the drug prohibition industry is a growth industry; it grows by making more and more laws which are increasingly pervasive and harsher and have less constitutional basis."
"Which laws?" Dave asked.
"Start with RICO, the Racketeer Influenced and Corrupt Organizations Act. When RICO was passed, it became legal, despite the Fourth and Fifth Amendments to the Constitution, for the police to deprive citizens of property without due process. They can do this simply on the suspicion alone that the property is linked to a crime. They don't have to have a warrant, they don't even have to prove their accusations. RICO is not only unconstitutional, it abrogates the body of common law and tradition our legal system rests on. The state no longer has to prove citizens are guilty of anything to seize their belongings; the citizens must prove they are innocent through an almost impossible and expensive process which includes posting bonds which, in theory, the government can also seize."
"But how does government benefit from these laws?" Dave asked.
"The value of many of the seized goods, including cars, homes, boats, guns, land, jewelry, and other hard goods, as well as cash, were supposed to be added to the budgets of various law enforcement agencies to help fight the War on Drugs. But politicians and other bureaucrats aren't stupid. Once they saw the vast amounts of extra money going into law enforcement, they weren't going to sit by without getting a slice of the pie. However, they couldn't just take it. They could, on the other hand, cut the budgets of law enforcement by the dollar amount of the goods seized."
"So police budgets didn't get bigger," Dave said, "the sources of their funding just got shifted."
The Founding Fathers feared a professional army. They believed this country should depend on the militiaand I'm using the word 'militia' in the way they used it in the Second Amendment, meaning the body of citizen, not the National Guard or some other professional organization. Professional armies lose their allegiance to the citizenry and have a history of becoming the accomplices of tyrants.
"That's right," Mac said, "And what we have now are the police departments of America with an economic stake in keeping these unconstitutional laws on the books and enforcing them."
"Are they the only part of the government that benefits from the War on Drugs?" I asked.
"No. The same goes for prisons. If the War on Drugs were dropped and the P.O.W.s, the hostages taken in that war, were sent home, some three quarters of our prison population would disappear.
"You are aware that today the United States imprisons a greater percentage of its own citizens than any other country in the world, aren't you? So what would all the prison guards currently employed to do this do? Where would the wardens get their next jobs? What would happen to all those communities in the middle of nowhere whose main industry is the prison? As prisons closed, real estate would plummet in those communities and people would lose their life savings. Do you think someone with $100,000 into a house, in one of these backwater towns, wants the illegal War on Drugs stopped? Think about it.
"Then, how do you think lawyers would fare if drug laws went away? Have you ever stopped to think of how much of the legal system is employed prosecuting or defending people in drug cases? Even court appointed lawyers are on the payroll. How many lawyers would suddenly discover they can't afford to feed their kids if all the laws concerning drug and other victimless crimes disappeared?
"And the economics reaches even beyond them. It goes all the way to corporate America which manufactures drug detection chemicals and equipment, builds prisons, even makes uniforms. Many livelihoods depend on these laws, and the amount of money involved runs into the hundred of billions. It's more money than goes through any of the corporate giants in America today.
"People are going to prison, losing their property, having their lives destroyed, and sometimes they are dying because of these unconstitutional laws. And we all have blood on our hands."
He looked down at his feet, then up again at us. "Do you guys want to talk about baseball? Or girls?" he asked.
I laughed. Dave didn't. "I want to talk about this," Dave said.
Mac nodded and leaned forward. "Okay, but let me tell you something: The rights we bought with blood 200 years ago we now exchange for loaves of bread. As a friend of mine once said, 'the War on Drugs is nothing more than a Full Employment Act for lawyers, judges, policemen, prison systems, corporations, and their attendant bureaucracies,' and he's right."
"What about the people who give drugs to children?" I asked.
"Are you insinuating that children have become a rational basis for how we treat everyone else with our drug policies? Because we don't want our kids to have drugs, it's okay to jail every adult we catch lighting up a joint or snorting a line? If that's your intent, we don't want our kids to drink, so you shouldn't object if we use that logic to jail everyone who drinks a beer. And we certainly don't want our kids having underage sex, so your reasoning can become the foundation for throwing their parents in jail for the very act of procreation."
"Drugs are different from alcohol and sex," I said.
"Yes, they are, but the logic you're using can be applied to more than one case, and logic is independent of the subject content. This is something discovered at least as far back as the Greeks and it hasn't been in serious dispute among mathematicians or philosophers since."
Dave and I looked at each other.
"We're imposing this dictatorship on ourselves," Mac said. "And as we invest more power in the government, we not only get used to less freedom, but the government itself has more power to enhance and entrench itself. The result is that we have less control over it and it is less and less responsive to us."
"The whole aim of practical politics is to keep the populace alarmedand thus clamorous to be led to safetyby menacing it with an endless series of hobgoblins, all of them imaginary." H.L. Mencken
"There must be a way we can change it," Dave said.
"We can change it. But to change it, we'd have to change ourselves, and I don't see that happening."
"But there's got to be a way," Dave persisted.
"I used to say we could change things at the polls, but I now realize we won't. Mostly because there just aren't enough of us who see what's happening to make a difference at the polls.
Jury nullification of bad laws
"But there's still one hope left. Historically, many bad laws have been countered in the courtrooms of America. It doesn't take a majority to counter bad laws there."
"Any specific examples?" Dave asked.
"Before the War Between the States, there was the Fugitive Slave Act, a federal law which ordered the return of runaway slaves to their masters in the slave states. However, the runaway slaves were entitled to trials and prosecutors soon discovered that, as the trials took place where the runaway slaves had fledin the Northnorthern juries frequently ignored the law and voted their consciences allowing the slaves to remain free, despite federal law. It took only one person on a jury to hang the jury and block the return of a slave to his or her owner. This necessitated a retrial which slave owners didn't like. But more often whole juries refused to rule against the return of the slaves, making a retrial impossible and ensuring the slave could remain free. It soon became all but impossible to enforce the runaway slave laws, at least until the southern states had a federal law passed that prohibited jury trials in these cases.
"Another good example comes from our grandparents' time. Prohibition was repealed because again and again government prosecutors couldn't get convictions. Juries refused to convict bootleggers and speakeasy owners despite both the 18th Amendment, which outlawed booze, and the Volstead Act, which put teeth into the Amendment. Both were the 'law of the land,' but they were laws that most of the American people knew were wrong. Individual jurors frequently hung juries and, in other cases, convinced fellow jurors to acquit the accused so there could be no retrial. Prosecutors finally stopped bringing the cases to trial and Congress and the States finally passed the 21st Amendment which repealed the Prohibition laws."
"Why aren't we doing this in courtrooms today?" I asked.
"One of the things the government did back in the 19th century to finally stop juries from nullifying the Fugitive Slave Act was to change the law so that runaway slaves could no longer have the benefit of jury trials. Today, our government has learned to get around jury nullification by barring anyone from juries who disagrees with the laws or who knows they're unconstitutional."
"Sounds like jury rigging," Dave said.
"How does the government identify a potential juror who might nullify the law?" I asked.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
"The government uses a process called voir dire. In French the term means 'to speak the truth.' They use it to interrogate jurors and get rid of anyone who disagrees with the law. There was a time when about all jurors were asked was their names and whether or not they could bring a fair verdict in a trial. Nowadays, voir dire is the tool the government uses to ensure that no one who would vote their consciences can be on a jury and that those who are left on the jury, though they may still disagree with the law, are compliant and will bring a verdict of guilt even when the law is outrageous or unconstitutional.
"Today it is often the only way the government can get convictions with bad laws. To those who think drugs should be outlawed, this practice may sound acceptable. But it's the equivalent of the government barring anyone who believes in the freedom of speech from a jury when it's trying to suppress speech or, if it wanted to suppress religion, barring anyone from juries who believe in the freedom of religion. And it's the same with drugs. Anyone who clearly sees this as a violation of our 9th Amendment guarantees is thrown off the jury by a government employee, the judge. Only those who agree with the government when it commits illegal acts, or who will be compliant even when they know the law is wrong, are allowed to sit there. Does this sound like freedom to you?"
I said, "One of the times I was on jury duty the judge specifically mentioned jury nullification and announced to us that we weren't there to change the law. He said that's what we have the legislature for."
"Of course he did. By first tying the hands of defense attorneysnot letting them plead for jury nullification when the law is badthen falsely informing jurors that they cannot cast their votes against bad laws in the jury room, government prosecutors roll up an impressive string of victories and make it appear as though they have the complicity of the citizenry when unconstitutionally destroying a defendant's life."
"What happens if the defense lawyer actually asks the jury to consider jury nullification?" Dave asked.
"He can be fined or jailed for contempt of court, he can be disbarred, or the judge can even declare a mistrial."
"Are many people likely to hang a jury or get the accused off in a drug case?" I asked.
"In public opinion polls, some 30 percent of people don't believe marijuana should be a crime. The state now goes out of its way to keep these 30 percent out of the jury box during drug trials. And as long as the citizens of this country are too dense to see this, the government will continue to stack the juries. And drug cases aren't the only cases they do this in; they do it in all of them.
"By the way, the government doesn't always have to stack juries to get convictions. There are many cases where you can be deprived of your property or be thrown in jail, but our government does not allow you a jury trial."
"Like when?" I asked.
"IRS courts do not allow a jury of your peers to try you, and many states and the federal government routinely deny defendants jury trials if the sentence that can be imposed is six months or less. They can do this even if there are multiple charges and the six month sentences are going to run consecutively. This way, our own government has found ways to put people away for years in clear violation of the the Fifth and Sixth Amendments to the Constitution."
"You don't sound like you have much faith in the American court system," Dave said.
Mac leaned forward again. "If Christ had a jury trial in modern America, the judge would bar from the jury anyone who would vote his or her conscience, and he'd tell the remaining jurors they were not there to exercise their consciences, but only to determine the facts in the case. Under those circumstances, even Christians left on the jury would vote, albeit reluctantly, for crucifixion unless they're black."
Can blacks save freedom?
"What do you mean, 'unless they're black?'" Dave asked.
"White Americans are more apt to bring a conviction even if they disagree with the law or feel the law is unfair, unjust, or applied unfairly, than blacks are. Blacks often have first-hand experience, either personally or through family, friends, and acquaintances, with bad laws, unfair laws, and police lyingcalled testilying among the police. A black juror is also more likely than a white juror to defy the judge's instructions and acquit a defendanteven if the prosecutor proves his casewhen he disagrees with the law. Whites are more compliant when confronted by the law. It would be ironic if American freedoms were saved by blacks, the people whose families were so recently slaves, while white Americans continue to behave as sheep. The problem, of course, is that government's solution to this would be to choose jurors based on racial profiling, just as traffic stops and airport strip searches are based primarily on racial profiling.
Article. VI. (clause 2)
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
"You make things sound like they're never going to change," Dave said.
"What about judges?" I asked. "Why don't they step in?"
"The judge can be your worst enemy in the courtroom. Judges routinely deny you the benefits and protections of the Constitution. For instance, if you're arrested on a firearms charge, say carrying a concealed weapon without the local jurisdiction's consent, you will not be allowed to use the Constitution, specifically the 2nd and 14th Amendments, as part of your defense. This is despite the fact that Article VI of the Constitution says, and the Supreme Court has already ruled, that the Constitution is the law of the land.
"Judges often tell defendants they cannot refer to the Constitution as part of their defense and, if asked, they tell jurors they are not allowed to consider the Constitution in their deliberations. Of course he's full of it, but most people don't know this so jurors become willing accomplices with the state in violating the defendant's rights.
"Shouldn't the Supreme Court be deciding what our rights are in courtrooms?" Dave asked.
"I think the Supreme Court has done a lousy job of this, especially in recent years," Mac said. "More and more it surrenders our rights to government demands.
"The problem with allowing the Supreme Court to be the final arbiter and interpreter of the Constitution is that we now have a branch of the federal government deciding what the rights of the states and the citizens are. It was never the intent of the Founding Fathers to have any branch of the federal government, or any local government, decide what our rights are. And this is a power not mandated by the Constitution. Read it. Nowhere is it written that the Supreme Court can interpret our rights.
"It happens that in 1803, in the decision Marbury vs. Madison, the Court assumed the power to rule on the constitutionality of laws passed by the Congress, and I don't object to that. But we shouldn't depend on them to be the sole authority when it comes to our rights."
"Do you have a solution?" Dave asked. "Is there an alternative to letting the Supreme Court decide what our rights are?"
"Of course I do. I've always maintained that the Constitution and, at least, the first 10 Amendments were written so we could understand them. So if anyone should interpret our rights, it's we the people. The Supreme Court can still make rulings and pronouncements on the constitutionality of laws just as it does today and just as lower courts do during the appeals processes."
"You're saying we should allow defendants to argue the law of the land?" Dave asked.
"If they feel it's appropriate, and if they feel the local laws, or congressional laws, or bureaucratic edicts are are in violation of their rights, let them make their plea to a jury. Let them make their plea to the people. These are, after all, our rights," Mac said.
"You mean let individual juries decide the law of the land?" I asked. "I'd rather have the Supreme Court do it."
"No, let them decide the merits of each case. If the defendant and his attorney feel there's a constitutional reason why the defendant should be acquitted, let them argue it before a jury."
"Then why don't we do it?" I asked.
"Are you kidding? If the people started considering constitutional questions on a case by case basis, judges, prosecutors, bureaucrats, politicians, legislators, cops, and who knows who else, would tremble in their shoes.
"Unconstitutional laws would be unenforceable. Take the drug laws, for instance. Let's say someone is caught by the feds with marijuana. The defense attorney presents the facts to the jury. First he says, Article I, Section 8 of the Constitution does not grant the federal government power to tell us what we can do with our own bodies. The Ninth Amendment to the Bill of Rights says we have certain unenumerated rights, and that medicating ourselves however we wish is among them. And Amendment XIV says that even the states cannot deprive us of our constitutional guarantees.
"Now, a good defense attorney is going to be more eloquent than that, but the fact is, quite a few juries are going to go into the deliberation room and wonder what right the government has here. They may not like drugs themselves. They may not even like the defendant or his attorney. But quite a few juries will see that the government is out of bounds and return 'not guilty' verdicts."
"What will this accomplish if it's only done one case at a time?" I asked.
"Prosecutors have a huge stake in winning their cases. They have limited budgets and their careers are measured by success. They will not bring cases to trial when they feel there's only a 50-50 chance of winning. They usually won't go to trial if they feel they only have a 90 percent chance of winning. They're looking for certainty. Granted, they'll take cases to trial they're sure they'll win and wind up losing them, but they wouldn't have taken it to trial if they'd known how bad their chances were from the outset."
"Then why don't we do it?" I asked.
"They don't want you to."
"Who's they?" I asked.
"Who do you think they are? Judges, prosecutors, legislators, bureaucrats, the FBI, the IRS...you name it. Quite frankly, they like the setup they have."
"What would be the net result if we, the people, insisted on it?" Dave asked.
"We'd have fewer crazy laws, law abiding citizens wouldn't fear their government or the bureaucrats, and we'd be freer. Freedom. It's all about freedom."
"Why isn't there a movement to do this?" I asked.
"Because, as I said, the American people don't want it. And, if a movement was afoot and caught the public imagination, the powers that be would marshall out their forces and predict doom, anarchy, and chaos. And we would succumb to it. And nothing would change."
"Worse yet," Dave said, "they'd expand the role of the juryless trials in our legal system."
Mac smiled. "You're becoming as cynical as I am," he said.
"Then there actually may be no hope," Dave said.
"That's how I feel."
"Aren't you afraid of stirring up some bureaucrat or some other powers and getting into trouble?" I asked.
"No," Mac replied.
"Because no one is going to listen to me. You could publish stuff like this, but it would change nothing. That's how we're bringing a dictatorship on ourselves."
Dave looked up at the clock. "Well, let's see what you've given us so far: You've said we're losing our rights, we can't blame the people depriving us of our rights because we're doing it to ourselves, and we could change these thingssome of them, anywaybut there aren't enough of us to do this at the polls, but we could do it in the courtrooms, but our government is already putting measures in place to prevent that. So, it's hopeless, and we have only ourselves to blame for it."
He stood up. "You guys want to head down to the local pancake emporium and talk about this over breakfast?"
"Sure," I said and stood up myself.
"You hungry, Mac?" I asked.
"Yeah," he said as he stood up and yawned.
As we walked out the door, Dave looked at his pad of paper. "Do you actually believe these new rights, these things you refer to as..." he looked back at the pad, "...legal rights are a step in the direction of a dictatorship?" he asked Mac.
"Sure. I'll explain it over breakfast."
And we went out the door.
In the Jan./Feb., 2001 issue, Mac, John, and Dave discuss how the invention of new legal rights and collective rights, the results of the Civil Rights Act, the Environmental Protection Act, and the American Disabilities Act are being used to empower government and special interest groups and to abrogate our natural rights.
In later issues they discuss how Presidents unconstitutionally bypass the legislative process with Executive Orders, which include among them provisions to suspend the Constitution for indefinite periods; how bureaucrats are putting themselves beyond our reach with juryless trials; how the government now uses businesses including banks, airlines, and even manufacturers of paper to get around the Fifth Amendment and conduct warrantless searches; how the government will eventually control the Internet, how the conversion of the military from a "citizen army" to a professional army is a danger to us all; and how all the time we were fighting communism, fascism was put into place in this country.
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