The Three Boxes
May 29, 2010
Often we have heard mention of the three boxes, which are the elements of our steps of assurance of the adequacy of our government. The first box, of course, is the ballot box. That box allows us the choice of representation of those who will enter the government, on our behalf, to assure that the government legislates within the confines of the Constitution, and to serve the purpose for which that government was created (protection of Life, Liberty and Property — see Finding Freedom Again and Let’s Talk About the Constitution).
Next, of course, is the jury box. This box was deemed by the Founders as the ultimate arbiter on the validity of any law. The determination of both fact and law (whether a law was just, constitutional, and the will of the people) was inherent in this process. The ability of the jury to overturn laws inadequate to the purposes of the people has a long history from colonial times to early in the last century.
In 1732, John Peter Zenger was tried for seditious libel. The jury overturned the law that suppressed speaking out against government.
In 1857, the Supreme Court ruled that fugitive slaves had to be returned to their owners, if found. Juries refused to convict those who violated that law, which was eventually partially overturned by the same court, and ruled out by the 14th Amendment.
Most recently, during the era of Prohibition (the 18th Amendment, ratified in 1920 through the repeal of Prohibition by the 21st Amendment in 1933), may who were tried for possessing alcohol, or other violations of the Volstead Act were acquitted by juries, who perceived the law as a denial of liberty.
Other instances can be cited, but it is clear that the right of the jury to nullify laws is as much a part of our heritage as the right to jury trial.
The final box, of course, is the cartridge box. This was the final resort of the Founders when the other remedies had failed to impede the encroachments of government, toward despotic and tyrannical rule. This box, if you will, is the box of last resort.
So, let us look at the efficacy of the ballot box. In so doing, we will only look at the election of representatives, though the Electoral College has been tailored into something that only vaguely resembles that which the Founders gave us.
The Ballot Box
George Washington, in a letter to Timothy Pickering, Jul. 27, 1795, provides the following insight into the nature of parties in the legislative branch:
“Much indeed to be regretted, party disputes are now carried to such a length, and truth is so enveloped in mist and false representation, that it is extremely difficult to know through what channel to seek it. This difficulty to one, who is of no party, and whose sole wish is to pursue with undeviating steps a path which would lead this country to respectability, wealth, and happiness, is exceedingly to be lamented. But such, for wise purposes, it is presumed, is the turbulence of human passions in party disputes, when victory more than truth is the palm contended for.
We must understand that in Washington’s time, parties were simply associations of like-minded people. Party had a degree of sway, though it was not so dictatorial that it could decide who would run for office, and who would not.
What we have become, however, is subject to exclusive domination, in the political arena, to the two-party system.
Ex-President Harry Truman, on the event of his birthday, in 1954, gave us the following:
“In the first place, the President became the leader of a political party. The party under his leadership had to be dominant enough to put him in office. This political party leadership was the last thing the Constitution contemplated. The President’s election was not intended to be mixed up in the hurly-burly of partisan politics.
“I wish some of those old gentlemen could come back and see how it worked. The people were to choose wise and respected men who would meet in clam seclusion and choose a President and the runner-up would be Vice President.
“All of this went by the board-though most of the original language remains in the Constitution. Out of the struggle and tumult of the political arena a new and different President emerged-the man who led a political party to victory and retained in his hand the power of party leadership. That is, he retained it, like the sword Excalibur, if he could wrest it from the scabbard and wield it.
So, what has happened is that the two-party system has enacted laws that have allowed the party, not the President, though he is the leader of the party, to determine that course that our country will take.
Similarly, all those within the party must subordinate whatever ideals they may have possessed upon their entry into politics to the will of the party, itself. This end has been achieved through manipulation of the process of election by two primary methods.
First, to run on the party ticket, one must have the blessings of the party. Absent that blessing, or in the event that a term in office demonstrates disobedience to the will of the party, the candidate cannot find a place on the ballot. He might, if he has attained stature in the eyes of the people, run as an independent, or he may even change party allegiance. Absent one of the two, he will find the possibility of inclusion on the ballot, and election to office, remote.
Second, and as we all know, now, dollars equate to votes. When a candidate has the dollars behind him, he has far greater potential for election than one who does not. Now, if all things were equal, a potentially good candidate running for office outside of the party banner might well solicit donations that would provide a fair chance against a party candidate. Unfortunately, for both for the candidate outside of the party and the people, the party will contribute funds, and, by other means, provide advertisement intended to sway the outcome of the election, thus providing an unfair advantage to their ‘chosen’.
So, it is clear that the two-party system has devised means to minimize competition and assure the election of one of the chosen of one of the parties. This assures the voter that he will have a very slim chance, if any at all, to elect a candidate who will adhere to the Constitution, regardless of what promises have been made during campaign.
For all intents and purposes (“Read my lips, no new taxes”). We are given the choice of two liars. We will take the liar who is a candidate from the party that we have laid our hopes and dreams on, or, in some cases, the opposition. In the former instance, we have elected “our own liars”, in the latter; we have elected the better liar. In either eventuality, we may rest assured that the campaign promises made during the campaign were made only to solicit our vote. They, in no way, are indicative of promises to pursue the ends described. In fact, more than likely, they will not even be remembered, shortly after the election.
These aside, let’s look at what would happen if we were able to have a choice that included those who really intended to pursue a return to Constitutional government. Being overly optimistic, let us assume that we could elect, in each session of Congress, 10% candidates who have our goals in common and would not succumb to political pressure while serving us.
In the next five elections (2010-2018), assuming that there were no losses, deaths or conversions, we would have 50% of those in office truly in support of the people rather than their respective parties. With only a single vote more, we would have the ability to mandate the course of the country, though only on those matters which could be passed by a simple majority. There are both two-thirds and three-quarters majority requirements on some matters. These, respectively, would require four and eight more years to return control from the parties to the people.
At that point in time we could begin turning the tide and returning to Constitutional government.
How long, however, will it take to make that return? We will have the 8 (or 12, or 16) intervening years of additionally burdensome legislation to undo, and then we could take on the task of undoing the past few decades of abuse of government.
If feasible, as presented above, it would be wholly dependent upon whether we could overcome the party politics and maintain the optimistic goal, as outlined. Any deficiency in that progression simply compounds the problem, which, if not almost beyond redemption, now, most surely will be so with any delays in the above-proposed timeline. [Note: the above does not even take into consideration the effect of lobbyists in promoting the interests of “special-interest” groups.]
This nearly fatal scenario, then, leads us to the Second Box.
The Jury Box
The Grand Jury and the Petit Jury have centuries of record which demonstrate their purpose and the means by which they serve the people.
First, let us see what Lysander Spooner said about the Petit jury, in an essay, “on the Trial By Jury” (1852):
“FOR more than six hundred years that is, since 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 juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of 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.
Then, as far as the Grand Jury, here is what George Edwards, Jr., said in a law review essay (“Grand Juries”) in 1906:
“The grand jury is an institution of English-speaking countries, of historic interest by reason of the obscurity surrounding its origin, its gradual development, and the part it has played in some of the most stirring events in the history of the Anglo-Saxon race; of political interest by its effectual protection of the liberty of the subject from the arbitrary power of the government; of legal interest in that its power and action is utterly repugnant to “the experience and theory of English law.” It has been extravagantly praised as the “security of Englishmen’s lives,” the conserver of his liberties, and the noblest check upon the malice and oppression of individuals and states…
So, now that we understand what was intended when the Founders passed on these examples of centuries of pursuing justice, by our forefathers, as an assurance against the tendency of those with power to extend their power and reduce the people to subordination to the will of government, let us look at what has happened to these institutions that were intended to provide such security.
The Grand Jury was intended to look in two directions. First, it was to assure that no person would be held to answer (stand trial) unless there were sufficient reason to believe that he may have committed a crime (probable cause). Second, it was intended to be a check on government, for those in power were no less capable of committing crimes than the people, and, without the ability to hold those in power accountable, would allow government to transgress on the rights of the people, without any obstacle to forcing complete submission.
Once probable cause was determined, the charges warranted a trial, by peers, to determine if, weighing all of the evidence, a crime had been committed, and, if the law was just. This jury was in no way excluded from judging those in power. The most well known example was the trial of those soldiers involved in shooting, and killing, civilians in the infamous “Boston Massacre” (1770).
So, we have a two tiered box in which charges can be brought only by the Grand Jury, in accordance with the Constitution (Fifth Amendment):
“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.
This, however, has been subordinated to the current circumstance, that only a district, state, or, US attorney can bring charges against you, with or without a grand jury, and, since they have, contrary to original law, intent and tradition, you cannot present to the Grand Jury a perceived violation of the law by a member of the government, unless, the government, through its attorney, allows such charges to be presented to the Grand Jury.
Once charges are justified (and, in our tradition of law, along with the intent of the Founders, that should include those who work for the government), the trial of the charges is held (as set out in Article II, Section 2, clause 3, and, 6th Amendment, for criminal trials, and the 7th Amendment for Civil trials) by Petit Juries.
As was presented at the beginning of this article, Petit Juries are, by tradition of law and intent of the Founders, judges of both law and fact. What has happened to Petit Juries, by virtue of enactments by government and rules promulgated by administrative agencies (see Who Makes the Laws?), is that the judge has become the sole arbiter of the case. He provides instructions to the jury that are ironclad, and assure conviction, rather than allowing the discretion the Jury is supposed to posses, in determining guilt, and the judge absolutely denies the right of the Jury to judge law (as happened to Laura Kriho when she was jailed for holding to her beliefs with regard to the crime, and, punishment associated therewith, while serving on jury duty).
So, the question arises, is there any efficacy to the jury system (box), as intended by the Founders, to be one of our safeguards against an oppressive government, or has the government-usurped authority, which it was never intended to have?
You may also wonder why the supreme Court rules in what appears, quite often, to be contrary to the Constitution, though you may be surprised when you read what that Court has said about making such rulings, as explained in About Ashwander v. TVA.
This, then, leads us to a consideration of that third box, the cartridge box.
The Cartridge Box
As we have seen, and should be quite evident, by now, the government has, by divisive means, corrupted both the Ballot Box and the Jury Box as remedies in safeguarding our freedom, our Constitution and our way of life.
Can we assume that this third box, that box of last resort, can go unimpaired by the powers that have, so far, managed to make inconsequential the other two?
Let’s begin by looking at what was, some 230 years ago. Though few were made here, cannon could be bought on the open market, by anyone. Any weapon available to the military was also available to the citizen.
Over time, however, primarily after the Civil War, the government began “infringing” upon our right to keep and bear arms. There is no doubt that after the Civil War, they did not want private citizens to own cannon. The recent carnage and destruction of the just finished war was sufficient, though the government had the additional leverage of near complete domination over the southern states, to begin to restrict ownership of those weapons of war, which were, to that point in time, considered well within the right to keep and bear arms.
In the 1930s, because of the warring between government and anti-prohibition forces (organized crime), laws were passed restricting ownership of automatic rifles (machine guns). More recently, in the 1990s, prohibition against what the government refers to as “assault rifles” has taken an additional toll on that right which was not to be infringed upon.
Clearly, then, the assault on that final right, that protector of all rights, the Second Amendment, being so necessary to a Free State, is without doubt, being subordinated to the power of government.
It, too, will go the way of the Ballot Box for the election of “representatives of our own chusing”, in favor of selection of the lesser of two evils, laid before us by the two-party system, which now confronts us.
It, too, will go the way of the Jury Box, where the rights that were fought for, and preserved in the Constitution, have become far less than would have been acceptable to those who gave their lives to “secure the blessings of liberty”, by subordination to the government in all aspects of judicial administration.
If we squander our time, hoping that the Cartridge Box will always be available, should the need arise (if it hasn’t, already), we can, most assuredly, understand that absent our commitment to the recovery of those long and established rights, and, the return to Constitutional government, we can only look forward to one more box — made of pine.