Robert Byrd

Mr. BYRD

Mr. BYRD. That is correct, but that is the other half I am trying to get into the Record. I thank the Senator.

Mr. BYRD. Of course, if they do--the Senator is assuming something I will not assume.

Mr. BYRD. We can adjust that date.

Mr. BYRD. I am not directing the question to the majority leader. What is wrong with that? We would expect the President, Republican or Democrat, to come up here to make his case if he wants to continue, if he believes there is justification to continue the deployment. He should come here. That is what we want. We want the administration to come here and request authorization and to justify that authorization. If he does that, Congress then will vote up or down. What is wrong with that?

Mr. BYRD. They are hysterical.

Mr. BYRD

Mr. BYRD. Mr. President, the Senate Appropriations Committee today adopted, by a very strong bipartisan vote, an amendment authored by Senator Warner and myself that addresses the ongoing role of United States participation in the Kosovo peacekeeping operation. Our amendment, which was attached to a Kosovo supplemental appropriations package, is cosponsored by Senator Stevens and a number of other Senators on both the Appropriations and Armed Services Committees. The Byrd-Warner amendment goes to the heart of the constitutional responsibility of Congress to address issues involving the deployment of U.S. military troops to politically unstable and potentially dangerous war-ravaged nations overseas. I am troubled by the trend that has developed in recent years to de facto authorize military operations through appropriations bills without further congressional discussion or debate on the policy. Under this practice, the Executive Branch determines how and where it will spend the money, and how much money it will spend, and then presents the bill to Congress. We saw it happen in Bosnia, in Haiti, in Somalia, and now it is happening in Kosovo. Mr. President, I do not believe that such a back-door authorization process is what the founding fathers had in mind when they delegated to Congress alone the power of the purse. By continuing to allow the Executive Branch to deploy U.S. troops overseas and merely send the bill to Congress later, Congress is effectively abrogating its responsibility under the Constitution and to the American people. The Byrd-Warner amendment restores congressional oversight to the calculation. Our amendment cuts off funding for the continued deployment of U.S. ground combat troops in Kosovo after July 1, 2001, unless the President seeks and receives congressional authorization to continue such deployment. At the same time, the amendment requires the President to develop a plan to turn the Kosovo peacekeeping operation entirely over to our allies by July 1, 2001. The amendment provides ample time and an orderly process for this President, and the next President, to either develop a plan to turn the ground troop element of the Kosovo peacekeeping operation entirely over to the Europeans, or to seek congressional authorization to keep United States ground troops in Kosovo. As an interim step, the amendment withholds 25 percent of the Kosovo money included in the supplemental appropriations package pending certification by the President that America's allies are making adequate progress in meeting their monetary and personnel commitments to the Kosovo peacekeeping operation. The certification is due by July 15. If the President cannot make the certification, the funds held in reserve can only be used to withdraw United States troops from Kosovo unless Congress votes otherwise. Mr. President, this is a reasoned and reasonable approach to dealing with foreign peacekeeping operations. Senator Warner and I believe that it can be executed without major disruption to the NATO peacekeeping mission in Kosovo. We are not turning our backs on Kosovo. We are not attempting to micromanage the Pentagon. We are merely attempting to restore congressional oversight to the peacekeeping process. When it comes to exercising its constitutional authority, Congress has been sleeping on its rights. This amendment is a long overdue wake- up call. I thank Senator Warner for his work on the amendment, and for his unswerving dedication to the nation and to the Senate, and I look forward to continuing to work with him on this very important issue.

Mr. BYRD

Mr. BYRD. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BYRD

Mr. BYRD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BYRD. Mr. President: God hath not promised Skies always blue Flower-strewn pathways All our lives through; God hath not promised Sun without rain, Joy without sorrow, Peace without pain. But God hath promised Strength for the day, Rest for the laborer, And light on the way, Grace for the trials, Help from above, Unfailing sympathy And undying love. Mr. President, I have quoted this bit of poetry because I am thinking of Mike Epstein, Senator Wellstone's long serving legislative director. Mike Epstein, I heard only yesterday, is gravely ill. I know that he is facing this news with the same gallant, noble, straightforward courage that has marked his entire life. I know because I employed him as a member of the Democratic Policy Committee staff when I was the majority leader of the Senate, and I have seen him in action. I have seen him at work many times. Mike is a man of lively humor, great heart, idealistic vision, and pragmatic understanding. Despite many years on Capitol Hill, he has never lost his sense of purpose in public service. He has never lost his desire to make the world a better place in which to live. At the same time, he has accumulated the political savvy and acumen to rapidly size up a piece of legislation, weigh its strengths and weigh its weaknesses, and then deliver a succinct analysis on the spot. He has been a fixture on the Democratic bench during debate on many bills. It seems it was only yesterday that I saw him back here on this bench. I always made it a point to speak to Mike as I went by. It may have been a week ago, it may have been 2 weeks ago, perhaps it was 3 weeks ago, but he was there. And, as I say, just like always, it was as though it was only a few hours ago. He has shepherded a generation of inexperienced legislative assistants through the arcane minuet of amendment trees, tabling motions, and cloture votes. In this respect, as in so many others, Mike has been outstanding in his commitment to the Senate, to its traditions, and in giving one's best to the Nation. What more can one do? The Senate is, in many ways, Mike's enduring passion. Legislation is his obsession. He was a ``policy wonk'' before that phrase was ever coined. His friends are legion in both parties, and outside the Senate as well as inside the Senate, and outside both parties as well. Senator Wellstone and his staff are part of Mike's extended Senate family. I know that everyone is shocked, just as I was shocked yesterday, at this unexpected news and that all my colleagues join me in offering Mike strength and comfort. It brings home the memory of that scriptural passage which says: Man that is born of a woman is of few days, and full of trouble. He cometh forth like a flower, and is cut down: he fleeth also as a shadow, and continueth not. Seneca once observed that ``there is nothing in the world so much admired as a man who knows how to bear unhappiness with courage.'' As he bravely faces his toughest battle, Mike Epstein offers to each of us something further to admire and to cherish. So tonight I shall go home, remembering Mike, sitting back there on that bench, looking at me, smiling. I close with a short verse by Spencer Michael Free, ``The Human Touch,'' which I believe best captures the warm and caring legacy of Mike Epstein's long and faithful service to the Senate: 'Tis the human touch in this world that counts, The touch of your hand and mine, Which means far more to the fainting heart Than shelter and bread and wine; For shelter is gone when the night is o'er, And bread lasts only a day, But the touch of the hand and the sound of the voice Sing on in the soul alway[s]. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. BYRD

Mr. BYRD. Mr. President, I thank the able senior Senator from Vermont for his overly charitable words concerning me. I thank him for his steadfast support on the Constitution. I thank him for the positions he has taken on many occasions during the years we have served together-- positions that were in the best interest of the Constitution, best interest of this institution, and in the best interest of our country. I join with the Senator in recalling the new profile in courage that was established by our former colleague, Senator Hatfield. He stood as a rock under the pressures of colleagues. Those were difficult pressures, in the party conference. He was threatened with his position as chairman of the Appropriations Committee. That took courage. And he had it. He had the real stuff. I hope he is listening today. We don't forget men such as Mr. Hatfield. Again, I thank my friend; he is my friend, and I think of him as my friend. He is a very generous person, a person whom I would think of as a Good Samaritan in this journey of life. I thank him for his work here. He will be here, he will be, long after the good Lord has taken me away. But he will be there holding the torch, holding the Constitution, holding up this institution. And there will by others, and I hope there will be more, day by day. I thank the Senator, and I yield the floor.

Mr. BYRD. Mr. President, I have been asked by the two distinguished principal proponents, as I understand it, to allow the motion to proceed to be withdrawn by unanimous consent, after which I and others who are opposed to the constitutional amendment could proceed to make our speeches. I am opposed to that procedure. I think that if we are going to call up constitutional amendments around here--and certainly Senators have a right to offer constitutional amendments--but if they are going to be called up, I think we ought to take the full time and discuss them, the full time allowed to us under the rules and discuss those amendments-- pro and con--and not allow them to be withdrawn and then, afterwards make our speeches. That does not make sense to this Senator. They have a perfect right-- the proponents--to seek consent to have the amendments withdrawn. But I say, let's have a full discussion of them and then give consent to their being withdrawn. I honor those proponents who have worked hard, especially the two principal ones, Mr. Kyl of Arizona and Mrs. Feinstein of California. They are very dedicated, very worthy, very formidable protagonists. I respect them and respect their viewpoints. They have as much right to disagree with me as I have with them. They certainly have the right to their viewpoints. I do not quarrel with that right at all. Let me also say to the victims of crime, wherever they may be, if they be watching, listening or reading the congressional record of these statements, I certainly am not against victims' rights. I am sure I speak for all of those in this body who oppose this constitutional amendment. We are not against victims' rights. I am for victims' legitimate rights. As one who has been about as firm as any other Senator could be when it comes to dealing with criminals, as one who believes in capital punishment, as one who believes in the death penalty, as one who has seen a public execution, as one who believes in making the criminals pay, I certainly do not take a back seat to anyone when it comes to supporting legitimate victims' rights. I am for that. But I am not for this amendment to the Constitution of the United States. I think victims' rights can be secured, are being secured, and will continue to have my support, when statutes are devised to protect those rights. But when it comes to amending the Federal Constitution, that is something else. That is entirely another matter. We don't need to amend the Federal Constitution to secure victims rights. I saw them tearing a building down, A group of men in a busy town; With a ``Ho, heave, ho'' and a lusty yell, They swung a beam and the sidewall fell. I said to the foreman, ``Are these men skilled The type you'd hire if you had to build?'' He laughed, and then he said, ``No, indeed, Just common labor is all I need; I can easily wreck in a day or two, That which takes builders years to do.'' I said to myself as I walked away, ``Which of these roles am I trying to play? Am I a builder who works with care, Building my life by the rule and square? Am I shaping my deeds by a well-laid plan, Patiently building the best I can? Or am I a wrecker who walks the town, Content with the labor of tearing down?'' That is the picture we have before us. We are talking about the higher law of our land, the Constitution of the United States of America. It was centuries in the making, but it can be trivialized in a day. We are talking about the Federal Constitution, the Constitution of the United States of America, the Constitution that was signed by 39 delegates on September 17, 1787. Listen to them: New Hampshire, Nicholas Gilman and John Langdon; Massachusetts, Nathaniel Gorham and Rufus King; Connecticut, Roger Sherman and William Samuel Johnson; New York, Alexander Hamilton; New Jersey, William Paterson, David Brearley, William Livingston, Jonathan Dayton; Pennsylvania, Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas FitzSimons, Gouverneur Morris-- the tall man with the peg leg--and James Wilson; Delaware, George Read, John Dickinson, Jacob Broom, Richard Bassett; Maryland, Daniel of St. Thomas Jenifer, Daniel Carroll, James McHenry; Virginia, George Washington, John Blair, James Madison; North Carolina, William Blount, Richard Dobbs Spaight, Hugh Williamson; South Carolina, Charles Pinckney, Charles Cotesworth Pinckney, John Rutledge, Pierce Butler; Georgia, William Few and Abraham Baldwin. What would they think? What would they think of this amendment? Not what professor so-and-so of such-and-such university may think, but what would those framers of the Constitution say if they were here? Most Americans can recall seeing the statue of ``Blind Justice'' holding aloft a balance scale in a courthouse or as a logo for a favorite TV crime show. It is an impressive and powerful representation with roots in Greek and Roman mythology. The scale symbolizes the impartial weighing of evidence, while the blindfolded figure, the goddess Themis, symbolizes equal justice under the law for the accused. But in a larger sense, the scale symbolizes something even more significant. It symbolizes competing interests--universal tensions, if you will--such as innocence versus guilt, truth versus falsehood, personal privacy versus the public welfare, the power of the State versus the rights of the individual. When those scales are put into equilibrium, they are said to be in balance, the right side weighed to be exactly at level with the left. When it comes to human affairs, balance is a very difficult state to achieve. But once achieved, the sweet harmony of balance--one tension offset by just the right measure of the competing tension--allows for the calmest, most rational functioning of man's institutions of order. Nowhere is the example of beautiful and near-perfect balance, despite competing and conflicting ambitions, goals, and passions more profoundly demonstrated than in that venerable charter, the U.S. Constitution, which I hold here in my right hand. Our Constitution embodies the accommodation of such difficult-to- rectify aspirations as the National Government's need for supremacy and the individual State's need for autonomy. Our Constitution satisfies the States' desire to maintain order without trampling on the individual's right to enjoy liberty. Liberty. That is the key word. Liberty. Our Constitution bestows power on the institutions and offices of Government in such a way as to allow them to adequately carry out their duties and yet be curbed and checked by the duties and responsibilities of other officials and institutions. Such is the brilliance and the genius of our national charter that it has been amended only 27 times in our more than 200-year history. Ten of those 27 amendments, of course, comprise the Bill of Rights, leaving only 17 amendments in these 212 years. Seventeen amendments. One of those--the prohibition amendment of 1919--was repealed, wiped out--that was the 18th amendment; it was wiped out by the 21st amendment. So take one away--the 18th amendment--and that leaves only 16 amendments. One might say: How about the 21st amendment, which wiped it out? Don't subtract that one because there is a portion of that amendment that is still in the Constitution, and it will remain there until such time as it may be repealed. But you might say there are 16 amendments. Over 11,000 amendments to the Constitution have been introduced in both Houses. The men who created this amazing--and it is amazing. One may read Shakespeare and one may read the Bible time and time and time again, and each time one reads that Holy Writ, he or she will find something new--every time. But think of this truly amazing, durable Constitution. It is a durable crucible for liberty. The men who created this durable, amazing, wonderful crucible for liberty were students of history and students of various methods of governing going back, back, back, back, back into the misty centuries of antiquity, long before 1787. They were students of the philosophies of the various methods of government. These men who wrote the Constitution came fresh from the mistakes of the experience of the Articles of Confederation, the first Constitution of the United States. They lived under the Articles of Confederation; they knew what the flaws of the Articles were. They knew where they fell short. They knew where those provisions were lacking. The memory of the Revolutionary War and the bloodshed in that struggle for freedom were at the forefront of their minds. They--the framers--God bless their names--bequeathed to me, to us, something very profound-- something strong, yet something also quite delicate. Over the years, I have come to believe that we should tinker with their magnificent work only very, very rarely. Each Member of this body takes an oath when he or she becomes a U.S. Senator, and there have only been 1852 men and women who have taken that oath to be Members of this great body. Think--just think--for a moment about that oath. Think about the words: ``Support and defend the Constitution of the United States against all enemies, foreign and domestic.'' Then think, if you will, about the extreme difficulty of the procedure laid out in that same Constitution for changing that Constitution in any way. I do believe that the framers were quite wary of injudicious disruptions to, and even the meddling, piddling, tinkering, and tampering with the careful balance that they had so laboriously achieved. As in most things, they were only too right. In the 106th Congress, as of April 17 of this year, there had been 63 constitutional amendments proposed--63 constitutional amounts proposed. The Senate has only been in session 43 or 45 days this year. In the 105th Congress, there were 107 constitutional amendments proposed. I think that it is clear the framers' fears were quite well founded. These amendments are proliferating at an unalarming level. That is why I have taken the floor on yesterday, that is why I have taken it today, and that is why I shall take it, the Lord willing, time and time again in the days to come. These amendments are proliferating at an alarming level. It seems that we are almost intent on disrupting what has served us and continues to serve us so well--the elegant wisdom and the very careful balance inherent in the Constitution. For the second time within 30 days, the U.S. Senate--that remarkable body which Gladstone, who had been Prime Minister of Britain four times, remarked about--``that remarkable body,'' the U.S. Senate, ``the most remarkable of all of the inventions of modern politics,'' the U.S. Senate is being called upon to adopt an amendment to the U.S. Constitution. It would be laughable if it weren't so serious. Who are we to conjure up all of these myriad amendments to that great document? So I say the Senate perhaps had better adopt a resolution designating April as ``Amend the Constitution Month.'' Let's have at it. Let's have a resolution calling April, the fourth month of this year of our Lord, the year 2000, the last year in the 20th century, the last year in the second millennium. Fie on the media, and fie on politicians who try to hand the American people all of this flimflam about this year's being the first year of the 21st century--this year's being the first year of a new century. Take the old math, take the new math, whatever math you want to take. It all comes out the same. There are 100 years in every century, and 1,000 years in every millennium. We are today in the last year of the 20th century. I was invited down to the White House a few days before the beginning of the new year. I don't go down very often. I don't get invited down as much as I used to, but it doesn't bother me. I went down when I was majority leader, when I was minority leader, and when I was majority leader again, and when I was President pro tempore of the Senate--all too much. I got tired of going down there. I must say they were very kind to invite me down to what I think they called the New Millennium party. I said to my fine staff person, you tell that nice lady that the new millennium hasn't begun yet, and it won't begin until the year 2001, January. Now we have the latest constitutional amendment--something called the crime victims' rights constitutional amendment, with the Senate poised to consider it following, you guessed it, ``National Crime Victims' Rights Week,'' a week during which the Senate was in recess. Does this suggest something to us? To me, it suggests a less than serious, dare I say somewhat frivolous, view of the gravity and far- reaching nature of constitutional amendments in general, and of this constitutional amendment in particular. To those victims out there who are watching over that electronic eye, let me assure you again that I am for your legitimate rights. But I am not for adding an amendment to the Constitution. It isn't necessary. The amendment which is being proposed is intended to restore and preserve--although I understand there were some negotiations going on with respect to this amendment as to how it might be changed and altered from what it is in the printed amendment upon the desks of Senators, negotiations going on with the White House, I understand. Why the White House? What do they have to do with it? The President of the United States doesn't sign a joint resolution that carries a constitutional amendment. That is a joint resolution that doesn't go to the President's desk. He can't veto it. He can't sign it. Why negotiate with him? The amendment which is being proposed is intended to restore and preserve, ``as a matter of right for the victims of violent crimes, the practice of victim participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation.'' This is a very impressive goal for the amendment, and, if the matter only stopped there, undoubtedly it would enjoy the sympathy and the support of every Member of this body because who is there who would be opposed to the legitimate rights of victims of violent crime? The title and the substance of the measure are certainly worthy of consideration. The Committee on the Judiciary recommended that victims' rights under nine general headings be protected in the amendment to the Federal Constitution. These nine rights are set forth as follows: (1) a right of victims to receive notice of criminal justice proceedings; (2) a right of victims to attend criminal justice proceedings related to crimes perpetrated against them; (3) a right of victims to be heard at five points in the criminal justice process, namely, plea bargains, bail or release hearings, sentencing, parole hearings, and pardon or commutation decisions; (4) a right of victims to notice of, and an opportunity to submit a statement concerning, a proposed pardon or commutation of sentence; (5) a right of victims to notice of release or escape of the accused; (6) a right to consideration of the victims' interest in a trial free from unreasonable delay; (7) a right of victims to an order of restitution; (8) a right of victims to have their own safety considered whenever an accused or convicted offender is released from custody. These sound like good things, good amendments. They are good. No. 9, notice to the victims of these rights inasmuch as such rights are of little use if the victims remain unaware of them. What is wrong with that? Nothing is wrong with that. We can all be for that. These participatory rights of victims are laudable and are worthy of consideration, certainly in the instance of legislation, but not when it comes to amending the Federal Constitution. Such rights can already be assured--here is the problem--such rights, as those we are talking about, can already be assured to victims by Federal or State legislation. The majority states in the committee report that the first Federal constitutional amendment to protect the rights of crime victims was introduced with hearings thereon in 1996 and that additional hearings were conducted in 1997, 1998, and 1999. The report also indicates that over these years, many changes were made to the original draft, several of which responded to concerns expressed in the hearings. The fact that so many changes were made over the years indicates to me that the subject matter could be better dealt with by legislation than by a Federal constitutional amendment. If it needs changing, if it needs modifying, if it needs altering, it can be done by legislation. And if we find that something is wrong and it isn't working right, we can change that law again the next session. We can even change it during this session. Congress can change, can alter, can modify, can amend the law almost overnight, if necessary, but not a constitutional amendment. That would take years to do. Statutes can be modified and refined by subsequent legislation during a single session of the legislative branch. But once a constitutional amendment is set into place, the only way to refine or amend that constitutional amendment is to further amend the Constitution of the United States, a procedure which necessarily requires years to do. The Prohibition amendment was on the books from January 1919 to December 1933. It took years. What are we talking about? This Constitution may not be perfect, but this amendment wasn't perfect. It was changed, and then it was changed, and then it was changed again, and now it is being pulled back because there need to be further changes. What does that tell us? What if it had been welded into the Constitution of the United States and then they would have found, lo and behold, this ought to be changed, this isn't right, this is wrong, we need to change it. That is a long process. I was interested, as I scanned the committee report, to note that the two legal experts who testified in support of the amendment in the first hearing in 1996 testified again and again and again in the subsequent three hearings. Professor Paul Cassell--I have never had the pleasure of meeting that gentleman--Professor Paul Cassell of the University of Utah College of Law and Steve Twist, former chief assistant attorney general of Arizona, were the chief legal experts. They may have been the best in the Nation; I don't know. Professor Cassell appears at all four hearings in support of the amendment. It seemed to me there was a paucity of expert academic witnesses who appeared in furtherance of the amendment. This duo--and I say it with great respect for them; they may be the best two in America--the same duo were heard over and over again. Wouldn't it have been well to have a few more? Wouldn't it have been well to add to the list of experts? It should not go unnoticed that the committee report states that the U.S. Judicial Conference favors a statutory approach because it ``would have the virtue of making any provisions in the bill which appeared mistaken by hindsight''--that is 20/20, you know--``to be amended by a simple act of Congress.'' The report also says that the State courts favor a statutory approach to the protection of victims' rights, citing the fact that the Conference of Chief Justices--we only have one Chief Justice of the United States, but there are many chief justices of the 50 States-- citing the fact that the Conference of Chief Justices has underscored ``the inherent prudence of a statutory approach'' which could be refined as appropriate. Other major organizations, including several victims' groups, opposed the amendment, as is stated in the Committee report. For example, the National Clearinghouse for the Defense of Battered Women takes the position that statutory alternatives are ``more suitable'' than an amendment to the Federal Constitution. Victim Services, the nation's largest victim assistance agency, also opposes S.J. Res. 3, arguing that the proposed amendment ``may be well intentioned, but good intentions do not guarantee just results''. The National Network to End Domestic Violence, as well as the National Organization for Women Legal Defense and Education Fund, and Murder Victim's Families for Reconciliation, a national organization of family members of murder victims, are united in opposing the joint resolution. Moreover, prosecutors and other law enforcement authorities all across the country ``have cautioned that creating special Constitutional rights for crime victims would have the perverse effect of impeding the effective prosecution of crime.'' It seems to me that one of the foremost rights of a victim of crime would be to see the perpetrator of that crime brought to justice, tried, convicted, and punished. That is the first and foremost right of the victim. The National District Attorneys Association has cautioned that the proposed amendment would ``afford victims the ability to place unknowing, and unacceptable, restrictions on prosecutors while strategic and tactical decisions are being made about how to proceed with the case.'' Prosecutorial discretion over plea bargaining ``is particularly at risk'' if S.J. Res. 3 were to be adopted. While I personally believe, and have long believed, that there is entirely too much plea bargaining--I believed that for a long time--the committee points out that a prosecutor may need to obtain the cooperation of a defendant who can bring down an entire organized crime ring, or may need to protect the identity of an informant-witness, or may think that the evidence against the defendant will not convince a jury beyond a reasonable doubt, in which case the accused killer, or whatever he might be, would go scot-free. Will the victim's rights have been upheld? Will the victim's rights have been secured if the killer goes free? If the robber goes free? If the burglar goes free? In any event, I support the main objectives in the measure for the protection of victims' rights, but such protection can be afforded by legislation at the Federal and State levels, and there is absolutely no need for a Federal constitutional amendment to meet the needs set forth in the resolution. The chief justices of the States have expressed grave concerns that the proposed constitutional amendment would lead to ``extensive lower federal court surveillance of the day to day operations of state law enforcement operations.'' Now, get that. How many times have we heard it said, ``Get the Government off our backs! Get the Government off our backs!'' Wasn't that one of the complaints in the great, so-called--what was it called?--contract, the great contract they talked about some few years ago, the Contract With America. Why, of course, that was one of the great things they talked about--Get the Government off our backs; Contract With America. Whoopee. Well, I will tell you, I have my Contract With America right here in my pocket. I know this Senator here, from Vermont, he had two men from Vermont who signed this Constitution, John Langdon and Nicholas Gilman. He has his Contract With America in his pocket--I have. It is called the Constitution of the United States. Here we have grave concerns expressed by the chief justices of the States, grave concerns that the proposed constitutional amendment would lead to ``extensive lower federal court surveillance of the day to day operations of state law enforcement operations.'' Get the Government off our back, they say on one hand. Then they say, Oh, let's adopt this constitutional amendment. The minority view on the Senate Judiciary Committee shares these concerns, but states that the laudable goal of making State and law enforcement personnel more responsive to victims should not be achieved by establishing Federal court oversight of the criminal justice and correctional systems of the 50 States. They do not want the Government on their backs, so they do not support this proposed constitutional amendment. The minority on the committee states that there is no pressing reason to displace State laws in an area of traditional State concern, and that there is no compelling evidence pointing to the need for another unfunded mandate. They passed a bill here a few years back dealing with unfunded mandates. That was one of the first great so-called great plaints in the Contract--what was it? The Contract With America?

Mr. BYRD. The Contract On America. All right. Call it a Contract On America. The minority also states that there is no need for more Federal court supervision and micromanagement of State and local affairs, when every State is already working hard to address the issues in ways that are best suited to its own citizens and its own criminal justice system. There have been some 63 drafts of the proposed amendment, and it remains both excessively detailed and decidedly vague. The level of detail provided in this amendment is inconsistent with the structure and the style of our country's great governing document, and, indeed, the resolution reads like a statute, which suggests that that is, in fact, how the problem of protecting the rights of crime victims should be addressed. The majority report cites examples of overwhelming popular support and demonstrates that change toward better implementation of victims' rights is occurring now, already, in the States. The majority admits that ``there is a trend''--the majority in this subcommittee report issued by the Judiciary Committee of the U.S. Senate--admits that ``there is a trend toward greater public involvement in the process, with the federal system and a number of states now providing notice to victims.'' Hence, it is my belief that we, here at the Federal legislative level, should avoid the adoption of a Federal constitutional amendment and that we should allow the States to continue to come up with innovations of their own without undue Federal intervention in a matter which, basically, is in the purview of the States. Our illustrious friends who are the chief cosponsors of the amendment, very honorable Members of this body, one from the Democratic side and one from the Republican side, have told us that they will be back. ``We'll be back,'' they say. In the meantime, I hope we can educate ourselves a little better with respect to the constitutional principles that we are here to defend and to protect. I hope that during this interim, while they are preparing to come back, that we will be educating ourselves a bit further and helping to educate others as to the history of American constitutionalism so that Senators, in the future, may be a little better prepared to take on this new amendment when it is brought back before the Senate, as we are assured that it will be. I have heard, during this debate, that you can include these victims' rights in statutes, but they won't be enforced. Some of them are already in statutes, but they are not being enforced. That is what we heard the proponents say. They are not being enforced. They won't be enforced. They are in the laws of various States, but they are not being enforced so what we need is a constitutional amendment. How about that? How can be assured that a constitutional amendment will be enforced? Let's return to the Book our fathers read: 19 There was a certain rich man, which was clothed in purple and fine linen, and fared sumptuously every day: 20 And there was a certain beggar named Lazarus, which was laid at his gate, full of sores. 21 And desiring to be fed with the crumbs which fell from the rich man's table: moreover the dogs came and licked his sores. 22 And it came to pass, that the beggar died, and was carried by the angels into Abraham's bosom: the rich man also died, and was buried; 23 And in hell he lift up his eyes, being in torments, and seeth Abraham afar off, and Lazarus in his bosom. 24 And he cried and said, Father Abraham, have mercy on me, and send Lazarus, that he may dip the tip of his finger in water, and cool my tongue; for I am tormented in this flame. 25 But Abraham said, Son, remember that thou in thy lifetime receivedst thy good things, and likewise Lazarus evil things: but now he is comforted, and thou art tormented. 26 And beside all this, between us and you there is a great gulf fixed: so that they which would pass from hence to you cannot; neither can they pass to us, that would come from thence. 27 Then he said, I pray thee therefore, father, that thou wouldest send him to my father's house: 28 For I have five brethren; that he may testify unto them, lest they also come into this place of torment. 29 Abraham saith unto him, They have Moses and the prophets; let them hear them. 30 And he said, Nay, father Abraham: but if one went unto them from the dead, they will repent. 31 And he said unto him, If they hear not Moses and the prophets, neither will they be persuaded, though one rose from the dead. That is the lesson. If the people in the States will not be persuaded by the statutes of the States that are already on the books, if they cannot be enforced, then will they listen to Moses and the prophets even if they rose from the dead? Will they hear even if it is a Federal constitutional amendment? Why should we think they will hear better, that they will see better, that they will honor more, that they will abide more by words that are written into the Federal Constitution than they will those words that are already written in the statute books of the States and the Federal statutes as well? If they will not hear them, they will not hear Moses and the prophets, even though they were brought from the dead. If they will not abide by the statutes, if they will not enforce them, what is there to ensure us that they would enforce the strictures of a new constitutional amendment? And if they did not, what would we be doing to the Federal Constitution? We would trivialize it; we would minimize it; we would lower it in the estimation of the people. When it comes to amending the highest law in our constitutional system, it behooves us to step back and behold the forest, not just the trees. Once before in our history we amended the Constitution without carefully thinking through the consequences. That was when the 18th amendment, dealing with prohibition, was ratified on January 16, 1919. I can remember as a boy seeing those revenue officers come around to the coal company houses. I can see them climbing the hills of the coal mining community going to various houses, going into the woods, looking for the moonshine stills. Those were the revenuers, as they used to say--the revenuers. That was under prohibition. That amendment opened a Pandora's box, or as Senator Jeff Bingaman says, a box of Pandoras. That amendment opened a Pandora's box of unintended and unforeseen consequences, and it was not until almost 15 years later that the 21st amendment repealing the 18th amendment was ratified on December 5, 1933. It took a long time to get the genie back into the bottle, and we should have learned a lesson from that experience. As a principle of simple prudence, we should be ever cautious about amending the organic law of our Nation. Justice Cardozo was explicit in his warning, uttered in the case of Browne v. City of New York, and we should heed that warning. Here it is: The integrity of the basic law is to be preserved against hasty or ill-considered changes, the fruit of ignorance or passion. Mr. President, the Constitution itself in article V, the article that provides for amendments to the Constitution, carries such an implication. Here is what it says--listen carefully--as an implication against hasty or ill-considered changes: The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, . . . There is the warning, ``whenever two-thirds of both Houses shall deem it necessary.'' The word ``necessary'' is not just a throwaway word that was just inserted to fill up space in article V of the U.S. Constitution. We can be sure that the constitutional framers chose the word carefully, as they did all other words in that unique document. It was the word chosen by Governor Edmund Randolph when he presented the Virginia Plan to the Constitution on May 29, 1787. That is my wedding anniversary date. My wife and I were married on May 29. It will be 63 years ago on May 29. I will never forget it. And that is the date in 1787 that Edmund Randolph rose at that Constitutional Convention and laid down his plan containing 15 resolves, 15 resolutions. The 13th of the 15 resolutions, according to Madison's notes, read as follows: Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, . . . William Paterson of New Jersey laid the New Jersey Plan before the Convention on June 15, and with respect to amending the Constitution, he used the words that the Congress be authorized ``to alter & amend in such manner as they shall think proper''--``in such manner as they shall think proper.'' When one compares the pertinent language in the two plans, it is readily apparent that Randolph's language in the Virginia plan was the stronger and more exacting upon those who would undertake to amend the Constitution. Paterson's proposal provided for constitutional amendments in such manner ``as they (the Congress) shall think proper.'' In other words, there is no requirement of necessity. The standard, ``as they shall think proper,'' can vary with whim or caprice or political motivation. Thus, without any firm anchor, what may be thought ``proper'' one day, might very well not be thought ``proper'' on the next. But on the contrary, Randolph's language, ``whenever two- thirds of both Houses shall deem it necessary,''--``whenever two-thirds of both Houses shall deem it necessary''-- provides a surer anchor and firmer foundation, and like the warning sign at a railroad crossing, ``stop, look, and listen'', commands not only the rapt attention, but also the considered judgment and focus of those who would alter, modify, add to, or repeal the fundamental law of the Nation. Needless to say, Randolph's language weathered the scrutiny of the Committee of Style and Arrangement; the Committee of Detail; the Committee of the Whole; and survived the storms and changing vicissitudes of the Convention itself. The word ``necessary'' made it through all the committees, all the disputations, all the disquisitions, all the arguments, and came out at the end in that almost immortal document, the Constitution of the United States. That word ``necessary'' is not just an empty word. It is not just a place holder. It is not just a word to be thrown in to fill out the whole. It meant something. It required something. The word was ``necessary.'' ``Whenever two-thirds of the States shall deem it necessary to amend.'' Supreme Court Justice Campbell, in Marshall versus Baltimore & O.R.R., offered these words which we might do well to ponder in this instance. Here is what he said: ``The introduction of new subjects of doubt, contests and contradiction, is the fruit of abandoning the Constitutional landmarks.'' We would profit greatly by reviewing the constitutional landmarks as we are confronted today with this proposed constitutional amendment. Madison, in The Federalist No. 43, alluded to ``that extreme facility which would render the Constitution too mutable''; and he proceeded to implore against appeals to the people that were too frequent. This was Madison talking. In The Federalist No. 43, he alluded to ``that extreme facility which would render the Constitution too mutable'' and proceeded to implore against appeals to the people that were too frequent. Here we have 11,000 of these proposed amendments to the Constitution that have been floating around in one or both Houses throughout the years--11,000. In the Federalist No. 49 Madison warned: ``. . . As every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.'' That was James Madison. He was only 36 years old, less than half my age. Listen to him. Let me say it again. He warned: . . . ``As every appeal to the people''--as we are being asked to appeal to the people here with S.J. Res. 3--``. . . As every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.'' In this same Federalist paper, Madison went on to say: ``The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of Constitutional questions to the decision of the whole society.'' Ah, what if Madison were here today to speak. The galleries would be filled. The media galleries would be crowded. There would not be a seat vacant. They would be all ears, all eyes, because this would be Madison, 36 years of age, purported to be the father of the Constitution, speaking. Listen to him. ``But the greatest objection of all is, that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the Constitutional equilibrium of the government.'' Finally, Madison clinched his point, when he said: ``It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision, . . .'' Mr. President, an overriding question, therefore, as we examine the proposed Constitutional amendment, is simply this: ``Is it necessary?'' ``Is it necessary?'' That is the standard that is set forth in the verbiage of the Constitution: ``Is it necessary?'' Penetrating light has been shed upon this question by the minority views of Senators Leahy, Kennedy, Kohl, and Feingold, who, in the committee report, beginning on page 57, set forth a litany of major laws recently enacted by Congress to grant broader protections and provide more extensive services for victims of crime. Among these laws are the Victim and Witness Protection Act of 1982; the Victims of Crime Act of 1984; the Victims' Rights and Restitution Act of 1990; the Violence Against Women Act of 1994; the Mandatory Victims Restitution Act of 1996; the Victim Rights Clarification Act of 1997; the Crime Victims with Disabilities Awareness Act of 1998; the Identity Theft and Assumption Deterrence Act of 1998, as well as the Torture Victims Relief Act; and the Child Abuse Prevention and Enforcement Act, of March 10, 2000. These are public laws. They have already been passed by both Houses. They have been signed into law. Obviously, as the minority on the Senate Judiciary Committee point out, there is nothing in the U.S. Constitution that currently constitutes a barrier, that currently inhibits the enactment of State or Federal laws that protect crime victims. With 33 States having adopted state constitutional amendments dealing with victims' rights, and while every State and the District of Columbia already have some type of statutory provision providing for increased victims' rights, including some or all of the rights enumerated in S.J. Res 3, what is needed is better enforcement of State laws and increased funding, not a Federal constitutional amendment. This should be ``as clear,'' as our former illustrious and dear colleague, the late Sam Ervin, used to say, ``as the noonday sun in a cloudless sky.'' Chief Justice Oliver Wendell Holmes once stated: ``In my opinion, the Legislature has the whole lawmaking power except so far as the words of the Constitution expressly or impliedly withhold it.'' There is no indication whatsoever that the Federal Constitution of today provides any barrier--either expressly or impliedly--to the lawmaking power in the subject area of victims' rights. It would, therefore, be far better for lawmakers at the Federal and State levels to exert their talents toward enactment of any further legislation that may be needed--I will be there to join them--rather than pursuing a course of amending the U.S. Constitution. Hamilton, in the Federalist No. 85--this is the final Federalist paper--states: ``It appears to me susceptible of absolute demonstration, that it would be far more easy to obtain subsequent than previous amendments to the Constitution.'' How right he was. In the light of Hamilton's wise words, members of the Senate should proceed with the utmost caution in proposing and supporting Constitutional amendments. It is more than noteworthy to again reflect upon the fact that during the 212 years of the American Republic, its organic law has been amended only 27 times--including the first time in which all ten amendments were ratified in one fell swoop. Those ten amendments constituted the Bill of Rights. During this period of over two centuries, more than 11,000 constitutional amendments have been proposed in Congress, but Congress has withstood the pressure behind this flood. Pheobe Cary's I long ago read poem about the lad who put his finger in the hole in the dyke: he ``held back the sea by the strength of his single arm''. The Senate must once again act to prevent a hole in the dyke which, if exploited here, might, in time, become a virtual flood. Hamilton, in the Federalist Essay No. 85, states: ``For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; . . .'' It should be preeminently clear to all observers that the amendment we are considering at this time, would not, as Hamilton had noted, ``be applicable to the organization of the government,'' but, instead, pertains ``to the mass of its powers.'' The Founders departed from practically all historical precedents by producing the system known as American federalism, and they did this with great care and skill, for the issue of the States' sovereignty was a flashpoint upon which the endeavor at Philadelphia could very quickly have disintegrated. The Constitution really consists of two types of provisions. One set of provisions is concerned with structure--the separation of functions and powers, the departments of administration, the House of Representatives, the Senate, the President, the Judiciary, and their relations to one another. The other set of provisions is concerned with the relation of the States to the general government. The powers of the general government are limited and the powers of the States are also under certain restrictions. This federalism was entirely new. There was nothing like it in the colonial charters or in the state Constitutions of 1776 and 1777. The development of federalism went through similar stages and took almost as long in its processes as the development of the structural parts of the Constitution. It had been an important and a much debated question for more than a 100 years before 1776, and more than 20 plans of power- sharing had been suggested and discussed. As the Articles of Confederation clearly demonstrated, the protection of the States' prerogatives continued to be held very dear, even in the face of the exigencies of newly claimed independence and armed conflict with Britain. What the Framers successfully crafted in 1787 was a system which retained enough sovereignty for the States to keep them from rejecting the new Constitution, while at the same time providing sufficient power to the national government so that it could be effective at home, and establish a credible presence in international affairs--quite an achievement! The minority on the Judiciary Committee--headed by my illustrious friend, the very able Senator from Vermont the 14th State--indubitably are of the view that the amendment before us constitutes a significant intrusion of Federal authority into a province traditionally left to State and local authorities. The minority viewpoint States a truism: ``Under our federal system the administration of criminal justice rests with the states except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.'' Screws vs. United States Mr. President, let us view, therefore, with a jaundiced eye, this proposal to amend the Constitution. As I have already indicated, there is nothing in the Constitution which currently inhibits the National and State legislatures from enacting legislation and providing the necessary funds to deal with the many problems surrounding victims' rights. Let me say again, for the benefit of those victims who may not be sitting nearby but who may be out there on the plains, in the Alleghenies, in the forests, on the lakes of this great country, let me say to them: There is nothing, absolutely nothing, in this Constitution which currently inhibits the National and State legislatures from enacting legislation and providing the necessary funds to deal with the many problems surrounding your rights, victims' rights--nothing! All needful legislation at the national and local levels should be considered and should be exhausted before we embark upon a course that leads to a further amendment of the Constitution. That is what we are saying. Let's try all the others, and let's enforce the laws if they are not being enforced. Once we go down that road of amending the Constitution, one amendment leads to another amendment, and then to another amendment, and as Hamilton predicted in Federalist No. 85, ``it would be far more easy to obtain subsequent than previous amendments to the Constitution.'' Willy-nilly amendments to the Constitution can only serve to trivialize it. As Hippocrates admonished physicians everywhere, ``Do no harm,'' we Senators who have taken an oath to support and defend the Constitution of the United States should measure our actions likewise: Let us do no harm to the Constitution. When amendments to the Constitution become a political way of life, when they dovetail with hortatory national weeks for this or for that, then we have transcended mere bumper sticker politics and entered the very shaky world of bumper sticker amendments to the U.S. Constitution. As a result, the public respect for that venerable document will certainly diminish. Just amend it enough and the public veneration for that unique document, the Constitution of the United States, will certainly diminish. This particular amendment appears to contemplate rewriting the criminal justice code and placing that rewrite into the Constitution. If we wish to rewrite the criminal justice code, that is one thing. Let us have at it, let us be about it, and while we are about it, scan this proposed amendment for its best provisions to incorporate. Certainly, victims' rights, or rather protections, as I prefer to call them, are a cause that I can enthusiastically support. I can embrace them and hold them close to my heart. But why, oh why, do we need to take the step of pinning such a measure to the Constitution itself, rather like some sort of artificial tail? It would be quite funny if it weren't so serious. The material which has been circulated in support of the need for this constitutional amendment seems to cite two primary reasons as its justification--the first being that the criminal justice system does not give adequate protection to the interests of victims of crimes, and the second being that existing statutory and State provisions are not uniform. While both may be true, neither is a reason for a constitutional amendment. In the first instance, these concerns can be addressed through statutory means. In the second instance, the concern can also be addressed through statutory means, and to achieve it via the route of amending the Constitution could be deleterious to a very important bedrock principle in the Constitution. That principle is one of the main thrusts and achievements of the framers coming out of the experience of the Articles of Confederation, and one which is a central pillar of our Republic. What is that? Federalism! Each of the States in its wisdom, through its legislature and its electorate, has the power and the right to protect and accommodate the interests of victims within its own criminal justice system. All of these decisions--those that have been made, and those that will be made in all 50 States--would become subservient to a constitutional standard if we were to adopt this amendment, which in all likelihood no one State would have chosen for its own particular citizens. Obviously, the proposed amendment mandates a significant intrusion of the Federal Government into an area traditionally left to State and local authorities. Nearly 95 percent of all the crimes are prosecuted by the States. The Federal Government does not have general police power. As the Supreme Court reminded us in United States v. Lopez: Under our Federal system, the states possess primary authority for defining and enforcing the criminal law. This proposed amendment could drastically shift the responsibility by forcing States to put consideration of these new victims' rights and protections on an equal footing with the rights of the accused. Furthermore, in the majority report accompanying this amendment, concerns about disruptions to federalism are deflected by the incredible assertion that States will have ``plenary authority'' to tailor the amendment to fit the needs of their various criminal systems--that they may flush out such definitions as ``victims of crime'' and ``crimes of violence.'' So much for uniformity. They talk about uniformity. Well, so much for uniformity. The result of such a reading of this amendment is, again, the very patchwork of laws that the proponents say they are trying to avoid. Moreover, for the first time, we will have turned the concept of federalism on its head by saying that States and various State laws may be allowed to implement the intent of a constitutional amendment. This is pure folly. What we will achieve if this poorly conceived amendment manages to end up as part of our Constitution is a serious aberration regarding the crowning achievement of the framers--federalism--and a recipe for a very nasty little stew of conflicting interpretations of what is and what is not a victim's right. I shudder to think of where that can lead us. The term ``victim'' is undefined and could be interpreted to mean any number of individuals--some quite removed from the usual understanding. In the case of a murder, couldn't an entire family be considered ``victims''? Take the tragedy at Columbine High School; could not the entire town of Littleton be considered ``victims''? If a battered spouse, finally driven to retaliate to repeated violence, strikes back, is the abuser then also a ``victim'' and therefore entitled to a victim's protections? An ``exceptions'' clause is included in this constitutional amendment. Consider that. Unlike any other part of the Constitution, we are inviting exceptions without stating who can make the exceptions. Are we suggesting that Federal constitutional rights can mean different things from State to State? Please let us come to our collective senses. Let us come back down to earth again. Let us not shred the concept of federalism with one ill- considered vote in the frenzy of an election year. Let us pay attention to what we are about to do, remembering John Marshall's words: We must never forget that it is a Constitution we are expounding. This resolution, S.J. Res. 3, consists of 403 words. I counted them. I learned to count by the old math. Yes, I memorized my multiplication tables back in that little two-room schoolhouse in southern West Virginia more than 75 years ago. But it is still the same multiplication tables; it hasn't changed, and it won't change. This resolution consists of 403 words. I am including, of course, the headings. In itself, it exceeds the number of words in 9--not the first 9, but 9 of the 10 amendments comprising the Bill of Rights. Now, many of us have participated in that little game of counting the words. I did so, also. Why not? Why should I not? According to the committee report accompanying this constitutional amendment, over 450 law professors expressed opposition to this amendment to the Constitution. Why weren't they invited to the hearings? In addition, the Cato Institute, the National Sheriffs' Association, the National Association of Criminal Defense Attorneys, the National Legal Aid and Defenders Association, the NAACP, the ACLU, the Justice Policy Institute, the Center on Juvenile and Criminal Justice, the Youth Law Center, the National Center on Institutions and Alternatives, the American Friends Service Committee, and the Friends Committee on National Legislation--among others--have expressed opposition to such an amendment. They take the position that statutes work, statutes are more flexible and are more easily enacted and more easily corrected and are more able to provide specific, effective remedies on behalf of victims of crimes. The majority report cites President Clinton as having endorsed the constitutional amendment. Well, so what! President Clinton also supported the line-item veto, but the U.S. Supreme Court knocked it down. Presidents can be wrong and so can majorities. The majority also cites the National Governors' Association as having passed a resolution in 1997 supporting a Federal constitutional amendment on victims' rights. So what? As I recall, the National Governors' Association not too long ago also supported a constitutional amendment to balance the budget. Yes--a constitutional amendment to balance the Federal budget. The National Governors' Association supported that. The Federal Government has since balanced the budget, at least on paper, without resorting to a constitutional amendment. We didn't need it. We didn't need it all along. But what if we had written it into the Constitution? I submit that the rights of victims of crimes can be clarified and enhanced by legislation at the Federal and State levels without resorting to an amendment to the Federal Constitution. For, as Madison cogently stated in the Federal No. 49, ``A Constitutional road to the decision of the people, ought to be marked out, and kept open for certain great and extraordinary occasions.'' The occasion for this amendment falls far short of being either ``great'' or ``extraordinary,'' and does not measure up to Madison's prescription. Congress can immediately pass a statute and provide the financial resources necessary to assist the states in giving force to their own locally-tailored statutes and Constitutional provisions, thus avoid tampering with our national charter. Jesus said it well, when he sat at meat in the house of Levi: ``No man also seweth a piece of new cloth on an old garment: else the new piece that filled it up taketh away from the old, and the rent is made worse.'' Let us not add this piece of clashing new cloth to the venerable and beautiful garment of the Constitution, lest the new piece trivialize the old and a rent is made in the carefully coordinated system of federal and state relations. The Constitution of the United States was not meant to be a politician's plaything. It is not mine to play with. It is not yours to play with. It is not ours to play with. It is a sad commentary that we find ourselves having to prepare in haste, without adequate notice and under the strictures of possible cloture, to fend off this proposed change in our Federal Constitution. Think of it! I do not question the sincerity of the proponents of the measure, but I do question the necessity for a constitutional amendment to achieve their goals and our goals. I also question the necessity, which is being forced upon us, to make such a basic decision under the Damocles' sword of limited debate. That is not what our forefathers had in mind for this great Senate. Surely no Senator needs to reread history in order to remember how much blood and treasure it has cost throughout the long centuries, dating back to the Magna Carta and beyond, to establish the greatest document of its kind that was ever written--the Constitution of the United States, a Constitution which, in the words of Chief Justice Story, is ``not intended to provide merely for the exigencies of a few years'' but ``to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.'' Mr. President, I yield the floor.

Mr. BYRD

Mr. BYRD. Mr. President, I shall have more to say along this line. I shall wait until another date to address this particular amendment that is before the Senate. I yield the floor and again thank the Senator from Minnesota and thank my friend from Vermont.

Mr. BYRD. And, since I have 5 remaining minutes, let me say again that what I am doing here is attempting to show that the U.S. Constitution is the result of the struggles of men in centuries before our own, this last year of the 20th century. Forget what the media says, forget what politicians say, this is not the first year of the 21st century, nor is it the first year of the third millennium. Anybody who can count, whether they use the old math or the new math, knows better than that. This is the last year of the 20th century. But I want to show that these liberties, which were assured to us by our Federal Constitution, did not just spring up overnight like the prophet's gourd at Philadelphia. They had their roots going back decades, centuries--1,000 years or more, and that those roots and those documents--the Articles of Confederation, the State constitutions, the colonial documents, the covenants--the Mayflower Compact and all of these things--were known by the framers and they were guided in their writing of the Federal Constitution by the experience that had been gained by living under the articles, by living in the colonies, and by the lessons taught by the British experience which had come at the point of a sword and through the shedding of blood through many centuries before. This is not just something that sprang up there between May 25 and September 17, a total of 116 days in 1787. I think it is good for us, as Members of the House and Senate, to just stop once in a while and draw back, take a look at the forest, try to see the forest and not just the trees, and restudy our history, restudy our roots, and establish ourselves again in the perspective of those Framers and their experiences, and understand that Marshall had it right when he said that the Constitution was meant to endure for ages. Mr. President, I yield the floor.

Mr. BYRD. I have 6 minutes remaining. Mr. President, I ask unanimous consent that at such time as I regain the floor, I be able to continue my prepared statement, and that it be joined to the statement that has just preceded my yielding the floor.

Mr. BYRD. Mr. President, I thank the distinguished Senator from Minnesota for his characteristic courtesy. Article 5 of the Articles provided for the meeting of Congress on the first Monday in November in every year. Under the U.S. Constitution, article I, section 4, paragraph 2, Congress ``shall assemble at least once in every year, and such meeting was originally to have been on the first Monday in December, but this was changed to provide that Congress could by law appoint a different day from that of Monday in December. Under article V of the Articles of Confederation, freedom of speech and debate in Congress could not be impeached or questioned in any court or place out of Congress. Under the U.S. Constitution, article I, section 6, members of Congress, for any speech or debate in either House, ``shall not be questioned in any other place.'' Article V of the Articles protects members of Congress from arrests during the time of their going to and from, and attendance in Congress, except for treason felony, or breach of the peace. Members of Congress are likewise protected under article I, section 6, paragraph 1, of the U.S. Constitution. Article VI of the Articles precludes any person holding office of profit or trust under the United States from accepting any present, emolument, office or title of any kind whatever from any king, prince or foreign state. Nor could Congress grant any title of nobility. In almost identical language, the U.S. Constitution, in article I, section 9, paragraph 7, prohibits members of Congress from accepting any present, emolument, office, or title, from any king, prince or foreign state. Under the Articles of Confederation no vessels of war or any body of forces could be kept up in time of peace without the consent of Congress. The same prohibition against the states was included in the U.S. Constitution in article 1, section 10, paragraph 2. Provisions concerning state militias are contained in article VI of the Articles, and in article I, section 8, of the U.S. Constitution. Article IX of the Articles vested the power of declaring war, establishing rules for captures on land or water, and granting letters of marque and reprisal. The equivalent provisions are to be found in article I, section 8, of the U.S. Constitution. So, you see, these provisions are not something new that just came from the minds, from the heads of our constitutional forebears and the Constitutional Convention in 1787. They were already written down in other places. Thank God for that and for their guidance, as it were. Both the Articles of Confederation and the U.S. Constitution provide for the trail of piracies and felonies committed on the high seas, in article IX of the Articles and in article I, Section 8 of the Constitution. Article IX of the Articles of Confederation gave Congress the sole and exclusive right and power of regulating the alloy and value of coin, fixing the standard of weights and measures throughout the United States, and regulating the trade and managing all affairs with the Indians. Congress under the Constitution was given the same powers in article I, section 8. The power to establish and regulate post offices, and the power to make rules for the government and regulation of the land and naval forces was given to the Congress by the Articles of Confederation in article IX. The same powers to establish post offices and to make rules for the government and regulation of the land and naval forces were given to the Congress in article I, section 8, of the U.S. Constitution. Article IX of the Confederation Articles provided that the yeas and nays of members of Congress were to be entered on the journal when desired by any member of the Congress. The U.S. Constitution article I, section 5 provided for the yeas and nays of members to be entered on the journal when desired by one-fifth of those members present. The admission of other colonies into the confederation was provided for in article 11 of the Articles of Confederation, while, under the Constitution new States may be admitted by Congress into the Union, under Section 3 of article IV. So, you see, we had a good roadmap in the Articles of Confederation, which went before the U.S. Constitution. Congress was given power under the Articles of Confederation to borrow money on the credit of the United States, to build and equip a navy, to agree upon the number of land forces. Under the Constitution, article I, section 8, Congress was given the power to borrow money on the credit of the United States; to raise and support armies; and to provide and maintain a navy. In article XIII of the Articles of Confederation, every state was required to abide by the determination of Congress, and the Articles of Confederation were to be inviolably observed by every state. The counterpart of these provisions is to be found in the U.S. Constitution, article VI, paragraph 2, where it is provided that the Constitution and the laws of the United States, and all treaties made, ``shall be the supreme law of the land''; and the judges in every state were to be bound thereby. Article V of the U.S. Constitution provides for amendments to that document when proposed by two-thirds of both Houses of Congress or upon the application of two-thirds of the state legislatures. Amendments to the Articles of Confederation required approval by the Congress, followed by confirmation by the legislature of all the states. The Articles set up what amounts to a national court system (article IX), but the system functioned only to adjudicate disputes between states, not individuals. Congress could pass no laws directly affecting individuals, and thus the national court had no jurisdiction over individuals. But when Congress was given such power in the 1787 Constitution, the notion of dual citizenship was revolutionized. The invention of dual citizenship in the Articles of Confederation, and then the transfer of this concept to the national constitution in article VI, section 2, was the legal basis for the operation of federalism in all of its many manifestations. Aside from the narrower grant of power to Congress, and a unicameral legislature in which each state had one vote, the Articles differed from the U.S. Constitution mainly in placing the court directly under Congress and in having the committee of the states (one delegate from each state) instead of a single executive. Characteristic of state constitution were a weak executive, often under the sway of a committee appointed or elected by the legislature, and a court system directly under the legislature. The Articles of Confederation in these respects was not the result of independent theorizing about the best institutions. It was a straightforward extension of Whig political thought to national government. The Constitution of the United States provided, in article VII, for its ratification by the conventions of nine states. The ratification of any new Constitution, under the Articles of Confederation, required the approval of Congress and the unanimous confirmation by the legislatures of all states. The Framers of the U.S. Constitution devised an ingenious way of getting around this insuperable requirement of unanimity by the state legislatures, and we can be thankful for that. Otherwise, we would still be governed by the unworkable Articles of Confederation--if, indeed, we had been able to survive as a nation. Ours might have been the balkanized States of America instead of the United States of America. This was done by circumventing the legislatures altogether, and securing ratification directly by the people in state conventions. Why did the Founders require nine states to ratify the Constitution rather than 13 or a majority of seven? Experience, and the likelihood that Rhode Island would not ratify, made unanimity an impractical alternative. A simple majority of seven might not have included the large states, and the new nation would have been crippled from the start. There was, however, considerable experience with a nine-state requirement in the Continental Congress. You see how these Framers benefited by the experience that had gone before them. Nine states constituted a two-thirds majority. Although such a majority was at times extremely difficult to construct, a provision that satisfied nine states invariably satisfied more than nine. This was a litmus test that the Framers understood, and the two-thirds majority required by the Articles led them to adopt a similar requirement for ratifying the constitution. Without the Articles of Confederation, the extended republic would have had to be invented out of the writings of Europeans as a rank experiment that a skeptical public would likely not have accepted. On the other hand, Americans had learned that government on a continental basis was possible, in certain respects desirable, and that a stable effective national government required more than an extended republic-- it needed power that could be applied directly to individuals. Experience also convinced them that the national government should have limited powers, and that state governments could not be destroyed. There was a logic to experience that no amount of reading and political theory could shake. Providing for an amendment process was one of the most innovative aspects of both national constitutions. Equally innovative was the provision for admitting new states. History had demonstrated that a nation adding new territory almost invariably treated it as conquered land, as did the ancient Romans, the Greeks, the Persians, and so on. The founders proposed the future addition, on an equal footing, of new states from territories now sparsely settled, if settled at all. The Articles of Confederation is of major historical importance for first containing this extraordinarily liberal provision, which became part of the U.S. Constitution. It guaranteed the building of an extended republic. The general impression of the people today is that the Articles of Confederation were wholly replaced in 1787, but, in fact, as I have shown, much of what was in the Articles showed up in the 1787 Constitution. As a matter of fact, few Americans today, relatively speaking, know much if anything about the Articles of Confederation or are even aware that such Articles ever existed. But not only did the Framers of the Constitution copy into that document a great deal of what was contained in the Articles of Confederation, but by virtue of the fact that they had lived under the Articles for over 6 years, they benefited from the experience gained thereby and were thus able to avoid many of the faults and flaws of the Articles by including in the Constitution corrective provisions for such avoidance. In other words, many of the provisions of the U.S. Constitution which have worked so well over these 212 years probably would never have been included in the Constitution, or even thought of, without having had the experience of living under the Articles. It could perhaps better be said that the Framers profited by the mistakes or negative experiences of living under the Articles. In other words, hindsight provided a 20/20 vision to the Framers. Mr. President, as we examine the roots of our Constitution, how could we avoid taking a look at the British Constitution? What part did the British Constitution play in the formulation of our own fundamental organic national document? Perhaps not as much directly as did the state constitutions and the Articles of Confederation. Yet, indirectly, woven into the experience of living under the colonial governments and the early state constitutions and the Articles of Confederation there were, running throughout, important threads of the ancient British Constitution that are often overlooked and were accepted as a practice in the early colonial documents and state constitutional forms without conscious attribution. Nevertheless, consciously or not, various rudiments of the American system can be traced back to developments that had occurred in England and even as far back as the Anglo-Saxon period which found their way into the fabric of American constitutionalism. Let us examine some of these antecedents. Many of the principles imbedded in American constitutionalism look back to the annals of the motherland for their sources and explanations and were carried forward by the political development of many generations of men. To begin with, our nation was founded by colonists of whom the great majority, let us not forget, were of the English branch of the Teutonic race. For the most part, they were of one blood and their language and social usages were those of Great Britain. It is where my forebearers are from. The same can be said by others here. They brought with them to these North American shores the English law itself, and, for a century or more, they continued in political union with England as members of one empire, often referring to themselves as ``Englishmen away from home'', claiming all of the rights and liberties of British subjects. Read your history. Forget those modern social studies. Go back to the history. Follow the taproots of our Constitution. Their institutions were mainly of an English nature, and they possessed in common with their English brethren a certain stock of political ideas. For example, a single executive, a legislative branch consisting of two houses--the British House of Lords, and the British House of Commons--the upper of which was conservative and the lower of which was representative of the people at large. There were also general principles such as trial by jury, taxation by the elected representatives of the people, and a system of jurisprudence based upon custom and the precedents of the English common law. These liberties and these rights had been wrenched from tyrannical monarchs over centuries at the cost of blood--the blood of Englishmen, the people of the British Isles, Scotland, Ireland, and Wales. The earliest representative legislative assembly ever held in America was convened in 1619 at Jamestown and was composed of 22 representatives from several towns and counties. This was the germ of hundreds of later local, town, and state assemblies throughout America. It also imitated the British Parliament, with the legislative power lodged partly in a Governor who held the place of the sovereign and who was appointed by the British Crown, partly in a council named by a British trading company, and partly in an assembly composed of representatives chosen by the people. Of course, no law was to be enforced until it was ratified by the company in England, and returned to the colony under that company's seal. Other representative legislative assemblies developed throughout the colonies, and laws were allowed to be made as long as such laws were not contrary or repugnant to the laws of England. There were, of course, variation in the systems of government throughout colonial America, but as we will note in the early state constitutions that were developed in 1776, as has already been noted, the repetition in many details of the political systems was evidence of the unanimity with which the colonies followed a common model. Of course the power over the purse--we have talked about that many times, and I will just touch upon it here--is the central strand in the whole cloth of Anglo-American liberty. Let us engage in a kaleidoscopic viewing of the larger mosaic as it was spun on the loom of time. Let us trace a few of the Anglo-Saxon and later English footprints that left their indelible imprint on our own constitutional system. We have too often forgot and it seems to be a fetish these days, that we ought to forget our roots. Several developments in the course of British history served as guideposts in the formation of the American Constitution. Many of the principles underlying the British Constitution were the result of lessons learned through centuries of strife and conflict between English monarchs and the people they ruled. The rights and liberties and immunities of Englishmen had been established by men who, like the authors of our Declaration of Independence, were willing to risk their lives, their fortunes, and their sacred honor for those rights. The U.S. Constitution was in several ways built upon a foundation from which the colonies themselves had never really departed but had only adjusted to local needs and conditions and social republican forces that were at play in American colonial life. The English Constitution was an unwritten constitution, but it includes many written documents such as Magna Carta (1215), the Petition of Right (1628), and the English Bill of Rights (1689), all of which had some part in influencing the formulation and contents of our own Constitution. There were various other English charters, court decisions, and statutes which were components of the English constitutional matrix and which, in one way or another, were reflected in our own organic law framed at Philadelphia. Among these great English pillars of liberty, for example, as the Presiding Officer knows, were the writ of habeas corpus: ``you shall have the body.'' Habeas corpus was one of the most celebrated of Anglo- American judicial procedures and has been called the ``Great Writ of Liberty''. The name ``habeas corpus'' derives from the opening words of the ancient English Common law writ that commanded the recipient to ``have the body'' of the prisoner present at the court, there to be subject to such disposition as the court might order. In Darnel's Case (1627), during the struggle for Parliamentary supremacy, if a custodian's return to a writ of habeas corpus asserted that the prisoner was held by ``special command'' of the king, the court accepted this as sufficient justification. This case precipitated three House of Commons Resolutions and the Petition of Right, to which Charles I--who later lost his head as well as his throne--gave his assent, declaring habeas corpus available to examine the underlying cause of a detention and, if no legitimate cause be shown, to order the prisoner released. But even these actions did not resolve the matter. Finally, under Charles II, the habeas corpus act of 1679 guaranteed that no British subject should be imprisoned without being speedily brought to trial, and established habeas corpus as an effective remedy to examine the sufficiency of the actual cause for holding a prisoner. Although the Act did not extend to the American colonies, the principle that the sovereign had to show just cause for detention of an individual was carried across the Atlantic to the colonies and was implicitly incorporated in the federal constitution's Article 1 provision prohibiting suspension of the writ of habeas corpus ``unless when in cases of rebellion or invasion the public safety may require it.'' Another English statute that made its imprint on our federal constitution was the Act of Settlement. Until the late 17th century, royal judges held their offices ``during the king's good pleasure.'' Under the Act of Settlement of 1701, however, judges were to hold office for life instead of at the king's pleasure and could be removed only as a result of charges of misconduct proved in Parliament. This was a crucial step in insuring the independence of the American judiciary. The Constitutional Convention of 1787 adopted the phrase ``during good behavior'' in Article 3, to define the tenure of federal judges in America. William the Conqueror had brought with him from Normandy the sworn inquest, the forerunner of our own grand jury, to which the fifth amendment of the Constitution refers. According to the Assize of Clarendon in 1166, Henry II ordered the formation of an accusing or presenting jury to be present at each shire court to meet the king's itinerant justices. This was a jury of ``12 of the more competent men of a hundred and by four of the more competent men of each vill'' who were to be put ``on oath to reply truthfully'' about any man in their hundred or vill ``accused or publicly suspected'' of being a murderer, robber, or thief. This accusing jury--like the sworn inquest under William I--was the antecedent of our own modern grand jury. Like the presentment jury, the trial jury had Continental origins, and by 1164, there was a clear beginning of the use of petit juries in Crown proceedings. It was mostly used in the reign of Henry II (1154- 1189) to determine land claims and claims involving other real property. By 1275, in the reign of Edward I, it was established that the petit jury of 12 neighbors would try the guilt of an accused. Five centuries later, jury trial in federal criminal cases was required by Article 3 of the United States Constitution, and was repeated in the sixth amendment of the U.S. Constitution. My, what a long time--five centuries. The seventh amendment provided for a jury trial in civil matters. The fountainhead of English liberties--those are your liberties and mine--was Magna Carta, signed by King John on June 15, 1215, in the Meadow of Runnymede on the banks of the Thames, and during the next 200 years, the Magna Carta was reconfirmed 44 times. It is one of the enduring symbols of limited government and the rule of law. Consisting of 63 clauses, it proclaimed no abstract principles but simply redressed wrongs. Simple and direct, it was the language of practical men. Henceforth, no freeman was to be ``arrested, imprisoned, dispossessed, outlawed, exiled, or in any way deprived of his standing . . . except by the lawful judgment of his equals and according to the law of the land.'' The phrase ``law of the land'' would become the phrase ``due process of law'' in later England and in our own Bill of Rights. Other provisions also anticipated principles that would likewise be reflected five centuries later in the U.S. Constitution. There was language, for example, relating to abuses by royal officials in the requisitioning of private property and thus are the remote ancestor of the requirement of ``just compensation'' in the fifth amendment in our own Bill of Rights. Other clauses required that fines be ``in proportion to the seriousness'' of the offense and that fines not be so heavy as to jeopardize one's ability to make a living--thus planting the seed of the ``excessive fines'' prohibition in the American Bill of Rights' 8th amendment. In 1368, more than 600 years ago, more than 400 years before the case of Marbury v. Madison (1803), a statute of Edward III commanded that Magna Carta ``be holden and kept in all Points; and if there be any Statute made to the contrary, it shall be holden for none.'' So here was an early germ of the principle contained in the supremacy clause of the U.S. Constitution's article VI. Having observed several elements of our own Constitution that have their roots in English history, let us now look at the English beginnings of some of the liberties and immunities secured to us by the American Bill of Rights. Mr. President, I think this might be a good time for me to take a break, inasmuch as I have something like 8 minutes left.

Mr. BYRD. Mr. President, before I yield, if I may, before I yield to the distinguished Senator from Minnesota who has already been so very gracious and considerate to me, I thank my friend from Vermont. I have learned a lot of lessons from him. We can learn from one another. It is easy, very easy if we try. I appreciate his friendship. I appreciate his statesmanship. I am very grateful for his being a stalwart defender of this great Constitution and one who has voted, alongside me, in many what I consider to be pretty critical votes that we have cast in this Senate. I close my statement today with these words from Henry Clay: The Constitution of the United States was made not merely for the generation that then existed, but for posterity-- unlimited, undefined, endless, perpetual posterity. Clay made those remarks in a Senate speech on January 29, 1850. Mr. President, I ask unanimous consent that at the close of my remarks, when I have finally brought them to a close this day, the following articles be printed in the Record: A Washington Post editorial of Monday, April 24, titled ``Victims and the Constitution;'' a Washington Post column by George Will titled ``Tinkering Again;'' an item from the National Journal of April 22 titled ``Victims' Rights: Leave the Constitution Alone,'' by Stuart Taylor, Jr.; and an editorial from the New York Times of Saturday, April 3, titled ``Don't Victimize the Constitution.''

Mr. BYRD. I thank the Senator. Mr. President, what impact did the Articles of Confederation have upon the Constitution of the United States? On June 7, 1776, Richard Henry Lee of Virginia introduced a resolution in the Continental Congress resolving: That these United Colonies are, and of right ought to be, free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. In accordance with this resolution, Congress appointed a committee of 12 on June 12--which happens to be my lovely wife's birthday, June 12, although she does not go that far back--1776, to prepare a form of confederation. A month later, on July 12, a draft plan was reported by the committee, written by John Dickinson of Delaware. The document, although reported to Congress on August 20, was delayed in its final consideration, and after having undergone modifications, was finally approved by the last holdout State of Maryland in February 1781, and the Congress, then, first met under the Articles of Confederation on March 1, 1781. It had been a long time aborning. New Jersey, Delaware, and Maryland had demanded that the States that had large claims to western lands renounce them in favor of the Confederation. Maryland was the last State to ratify the Articles, but finally went along when she became satisfied that the western claims would become the expected treasure of the entire Nation. The Articles of Confederation were the direct predecessor of the Constitution of the United States, and the Articles contained within themselves the fatal flaws which doomed the success of the confederation. It was a ``league of friendship'' only, of which the Congress was the unique organ and in which ``each state shall have one vote.'' The votes of nine States were required before important action could be taken by Congress, and the consent of the legislature of each State was necessary to any amendment of the fundamental law. Congress was given no commercial control and, most unfortunately, no power to raise money, but could only make requisitions on the States and then hope and pray that the States would respond affirmatively and adequately. They seldom if ever did. Control over foreign affairs was vested in Congress, but it was without means of making the States obey treaty requirements. The Congress had responsibility but without power to carry out its responsibility. It dealt with the people, not individually, but over their heads through the States. Several efforts were made to get the States to amend the articles, by adding the right to levy import duties, but these efforts failed because it was impossible to get the unanimous consent of the legislatures of the 13 States to any amendment of the fundamental law. It became increasingly difficult to secure a quorum of attendance in Congress, and even when a quorum of Members attended, important measures were blocked by the requirement for the votes of nine States. A State frequently lost its single vote--that is all it had--because of differences among its delegates. It was a time of experimentation, of learning a hard lesson that would be remembered. But the experience gained from learning these hard lessons helped to prepare the way for a better national government. It should also be remembered that at least one substantial act of legislation--the ordinance for the government of the Northwest Territory, was created by the government under the Articles of Confederation. Under the Articles of Confederation, no State could be represented in Congress by less than two, nor by more than seven, members; and no person could serve as a delegate for more than three years in any term of six years. There were limited terms. Each State had only one vote. All charges of war and other expenses incurred for the common defense or general welfare, if allowed by the United States in Congress assembled, were to be defrayed out of a common treasury, which would be supplied by the several States in proportion to the value of all lands within each State, and the taxes for paying a State's proportion were to be laid and levied by the authority of the legislatures of the several States within the time agreed upon by the Congress. Under a very complex arrangement--I say to the former Attorney General of the State of Alabama, who presently presides over this august body--the Congress under the Confederation was denominated as the last resort on appeal in all disputes and differences arising between two or more States ``concerning boundary jurisdiction or any other cause whatever.'' The business of Congress was to be carried on during a recess by ``a committee of the states,'' to consist of one delegate from each State. When it came to the armed forces, requisitions were to be made from each State for its quota, in proportion to the number of white inhabitants in such States, which requisitioned would be binding. Each State would appoint the regimental officers, raise them in and clothe and arm and equip them at the expense of the United States. However, if the Confederation Congress should determine, based on circumstances, that any State should raise a smaller number than its quota and that any other State should raise a greater number of men than its quota called for, the extra number was to be raised, clothed, and equipped as the quota allowed, unless the legislature of that State should judge that such extra number could not be safely spared. The State would be permitted to raise ``as many of such extra number'' as the State judged could be safely spared. What a flawed approach! It is little wonder that George Washington, as Commander in Chief of the Revolutionary forces, was constantly frustrated in his efforts to build an effective fighting force. It was almost a miracle that the fledgling Nation managed to carry on and win the war under such conditions, but we can only guess that Providence was on our side. We know for sure that the situation in England was such that that country's preoccupation with its own internal problems rendered impossible the full concentration of its resources and strength to be brought to bear against us. We were lucky in that regard. Under the Articles, the ``Union shall be perpetual'' nor could any alteration be made in the Articles--there could be no amendment to that Constitution--unless such alteration was agreed upon in Congress assembled and afterwards confirmed by the legislature of every state. The Articles of Confederation contained the phrase ``The United States of America,'' for the first time in American documentary history. The Articles were America's first national constitution. Congress was elected by the State legislatures. There was only one body of Congress, not two, back then, as we see today. And Congress was the executive, the legislative branch, and the judiciary in many respects. There was no man living downtown at the White House who was President. Now let us examine the parallels between the Articles of Confederation and the U.S. Constitution. I am here showing where the roots of the Constitution go. It is like tracing the roots of a tooth, if one is having a root canal, let us find where those roots go. Article II of the Articles of Confederation provided that each State would retain its sovereignty and every power and right ``which is not by this confederation expressly delegated to the United States, . . .'' Where do we find that in the Constitution? The tenth amendment to the U.S. Constitution provided that 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.'' Article IV of the Articles of Confederation provided that the people of the different States would ``be entitled to all privileges and immunities of free citizens in the several states'', that ``full faith and credit'' should be given in each of the States to the records, acts, and judicial proceedings of the courts and magistrates of every other state; and that any person guilty of a felony in any state who fled from justice and was found in any other state, would ``upon demand of the Governor or executive power of the state from which he fled,'' be delivered up ``to the state having jurisdiction of his offense.'' The ``privileges and immunities'' clause of the Articles of Confederation, found in article IV thereof, appears in the U.S. Constitution in article IV, section 2. The ``full faith and credit'' clause of the Articles of Confederation is to be found in the U.S. Constitution, article IV, section 1. The delivering up of persons charged with felonies to another state on demand of the executive authority thereof, found in article IV of the Articles is also found in article IV, section 2, paragraph 2, of the U.S. Constitution.

Mr. BYRD. I thank the distinguished Senator. I see the Senator from California. Also, if she wishes to have the floor, I will be happy to yield it for a while.

Mr. BYRD. Mr. President, I have listened to the comments by my colleagues, those who are proponents of the proposed constitutional amendment before the Senate, and I have listened to the comments of many of my colleagues who have spoken in opposition to the proposed amendment. I compliment both sides on the debate. I think it is an enlightening debate. I will have more to say if the motion to proceed is agreed to. In view of the statements that have been made by several of those who are opposed to the amendment--the Senator from New York (Mr. Schumer), the Senator from Illinois (Mr. Durbin), and the Senator from Connecticut (Mr. Dodd), and others, they have cogently and succinctly expressed my sentiments in opposition to the amendment. I congratulate the Senator from Vermont, Mr. Leahy, on his statements in opposition thereto, as well as the leadership he has demonstrated not only on this proposed constitutional amendment but also in reference to other constitutional amendments before the Senate in recent days and in years past. He is a dedicated Senator in every respect. He certainly is dedicated to this Federal Constitution and very ably defends the Constitution. I do not say that our Constitution is static. John Marshall said it was a Constitution that was meant for the ages. I will go into that more deeply later. At a later date, I will address this particular amendment. But having been a Member of the Congress now going on 48 years, I may not be an expert on the Constitution, but I have become an expert observer of what is happening in this Congress and its predecessor Congresses, and an observer of what is happening by way of the Constitution. I consider myself to be as much an expert in that regard as anybody living because I have been around longer than most people. I have now been a Member of Congress, including both Houses, longer than any other Member of the 535 Members of Congress today. I must say that I am very concerned about the cavalierness which I have observed with respect to the offering of constitutional amendments. There seems to be a cavalier spirit abroad which seems to say that if it is good politically, if it sounds good politically, if it looks good politically, if it will get votes, let's introduce an amendment to the Constitution. I am not saying that with respect to proponents of this amendment, but, in my own judgment, I have seen a lot of that going on. I don't think there is, generally speaking, a clear understanding and appreciation of American constitutionalism. I don't think there is an understanding of where the roots of this Constitution go. I don't think there is an appreciation for the fact that the roots of this Constitution go 1,000 years or more back into antiquity. I do not address this proposed constitutional amendment as something that is necessary, nor do I address this, the Constitution today, as something that just goes back to the year 1787, 212 years ago. The Constitution was written by men who had ample experience, who benefited by their experience as former Governors, as former members of their State legislatures, as former members of the colonial legislatures which preceded the State legislatures, as former Members of the Continental Congress which began in 1794, as Members of the Congress under the Articles of Confederation which became effective in 1781. Some of the members of the convention came from England, from Scotland, from Ireland. Alexander Hamilton was born in the West Indies. These men were very well acquainted with the experiences of the colonialists. They were very much aware of the weaknesses, the flaws in the Articles of Confederation. They understood the State constitutions. Most of the 13 State constitutions were written in the years 1776 and 1777. Many of the men who sat in the Constitutional Convention of 1787 had helped to create those State constitutions of 1776 and 1777 and subsequent thereto. Many of them had experience on the bench. They had experiences in dealing with Great Britain during and prior to the American Revolution. Some of them had fought in Gen. George Washington's polyglot, motley army. These men came with great experience. Franklin was 81 years old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris, was 35. Madison was 36. They were young in years, but they had tremendous experience back of those years. So the Constitution carries with it the lessons of the experiences of the men who wrote it. They were steeped in the classics. They were steeped in ancient history. They knew about Polybius. They knew how he wrote about mixed government. They knew what Herodotus had to say about mixed government. They knew what other great Greek and Roman authors of history had learned by experience, centuries before the 18th century. They knew about the oppression of tyrannical English monarchs. They knew the importance of the English Constitution, of the Magna Carta, of the English Bill of Rights in 1689. They knew about the English Petition of Right in 1628. All of these were parts of the English Constitution, an unwritten Constitution except for those documents, some of which I have named--the Petition of Right, the Magna Carta, the decisions of English courts, and English statutes. So to stand here and say, in essence, that the Constitution reflects the viewpoints of the men who wrote that Constitution in 1787, or only reflects the views of our American predecessors of 1789, or those who ratified the Constitution in 1790 or in 1791, is only a partial truth. The roots of this Constitution--a copy of which I hold in my hand--go back 1,000 years, long before 1787, long before 1791 when the first 10 amendments which constitute the American Bill of Rights were ratified. That was only a milestone along the way--1787, 1791. These were mere milestones along the way to the real truths, the real values that are in this Constitution, a copy of which I hold in my hand. Those are only milestones along the way, far beyond 1787, far beyond 1776 or 1775 or 1774. Why was that revolution fought? Why did our forbears take stand there on the field of Lexington, on April 19, and shed their blood? Why was that revolution fought? It was fought on behalf of liberty. That is what this Constitution is all about--liberty, the rights of a free people, the liberties of a free people. Liberty, freedom from oppression, freedom from oppressive government, that is why they shed their blood at Lexington and at Bunker Hill and at Kings Mountain and at Valley Forge, down through the decades and the centuries. The blood of Englishmen was spilled centuries earlier in the interests of liberty, in the interests of freedom: Freedom of the press, freedom to speak, freedom to stand on their feet in Parliament and speak out against the King, freedom from the oppression of the heavy hand of government. That is what that Constitution is about. There are those who think that the Constitution sprang from the great minds of those 39 men who signed the Constitution at the Convention, of the 55 who attended the meetings of the Convention--some believe that it sprang from their minds right on the spot. Some believe that it came, like manna from Heaven, fell into their arms. It sprang like Minerva from the brain of Jove. That is what they think. No, I say a miracle happened at Philadelphia, but that was not the miracle. The miracle that occurred at Philadelphia was the miracle that these minds of illustrious men gathered at a given point in time, at Philadelphia, and over a period of 116 days wrote this Constitution. It could not have happened 5 years earlier because they were not ready for it. Their experiences of living under the Articles of Confederation had not yet ripened to a point where they were ready to accept the fact that there had to be a new government, a new constitution written. And it could not have happened 5 years later because the violence that they saw in France, as the guillotine claimed life after life after life, had not yet happened. Some 5 years later, they would have seen that violence of the French Revolution, and they would have recoiled in horror from it. The writing of this Constitution happened at the right time, at the right place, and it was written by the right men. That was the miracle of Philadelphia. Here we are today talking about amending it, this great document, the greatest document of its kind that was ever written in the history of the world. There is nothing to compare it with, by way of man-made documents. Who would attempt to amend the Ten Commandments that were handed down to Moses? Not I. Yet, we, little pygmies on this great stage, before the world, would attempt to pit our talents and our wisdom against the talents and wisdom, the experience and the viewpoints of men such as George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James Wilson, Roger Sherman? In article V of this Constitution, they had the foresight to write the standard. If we want to find the standard for this Constitutional amendment, or any other Constitutional amendment here is the standard in the Constitution itself. The Congress, whenever two-thirds of both Houses shall deem it necessary-- The Congress, whenever two thirds of both Houses shall deem it necessary-- shall propose Amendments. . . . I don't say that the Constitution is static. I don't say it never should be amended. I would vote for a constitutional amendment if I deemed it ``necessary.'' Certainly, I do not see this proposed amendment as necessary, but I will have more to say about that later. I don't say that the Constitution is perfect. I do say that there is no other comparable document in the world that has ever been created by man. And when that Constitution uses the word ``necessary,'' it means ``necessary,'' because no word in that Constitution was just put into that document as a place filler. I do think this is a time that I might speak a little about the constitutionalism behind the American Constitution. I think it might be well for anyone who might be patient enough or interested enough, to hear what I am going to say, because I don't think enough people understand the Constitution. I am sure they don't understand the roots of the Constitution. They don't understand American constitutionalism. It is a unique constitutionalism, the American constitutionalism. I don't think most people understand it. In response to a recent nationwide poll, 91 percent of the respondents agreed with this statement: ``The U.S. Constitution is important to me.'' Mr. President, 91 percent of the respondents agreed to that: ``The U.S. Constitution is important to me.'' Yet only 19 percent of the people polled knew that the Constitution was written in 1787; only 66 percent recognized the first 10 amendments to the Constitution as the Bill of Rights--only 66 percent. Only 58 percent answered correctly that there were three branches of the Federal Government; 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution--17 percent, 17 percent. Yet you see them out here all the time, on the Capitol steps, assembling, petitioning the Government for a redress of what they conceive to be grievances. They know they have that right, but only 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution. Only 7 percent remembered that the Constitution was written at the Constitutional Convention; 85 percent believed that the Constitution stated that ``All men are created equal''--or failed to answer the question; and only 58 percent agreed that the following statement is false: ``The Constitution states that the first language of the U.S. is English.'' The American people love the Constitution. They believe the Constitution is good for them collectively and individually, but they do not understand much about it. And the same can be said with respect to constitutionalism. The same can be said with respect to the Members of Congress; that means both Houses. Not a huge number, I would wager, of the Members of the Congress of both Houses know a great deal about the Constitution. How many of them have ever read it twice? Each of us takes an oath to support and defend the Constitution of the United States every time we are elected or reelected. We stand right up at that desk with our hand on the Bible--at least that is the image people have of us--and we swear in the presence of men and Almighty God to support and defend that Constitution. How many of us have read it twice? How many of us really know what is in that Constitution? And yet we will suggest amendments to it. With 91 percent of the people polled agreeing that the U.S. Constitution is important to themselves, it is a sad commentary that this national poll would reveal that so many of these same Americans are so hugely ignorant of their Constitution and of the American history that is relevant thereto. Let us think together for a little while about this marvelous Constitution, its roots and origins and, in essence, the genesis of American constitutionalism--a subject about which volumes have been written and will continue to be written. It is with temerity that I would venture to expound upon such a grand subject, but I do so with a full awareness of my own limited knowledge and capabilities in this respect, which I freely admit, and for which I just as freely apologize. Nonetheless, let us have at it because the clock is running and time stops for no one, not even a modern day Joshua. Was Gladstone correct in his reputed declaration that the Constitution was ``the most wonderful work ever struck off at a given time by the brain and purpose of man''? Well, hardly. In 1787, the only written constitutions in the world existed in English-speaking America, where there were 13 State constitutions and a constitution for the Confederation of the States, which was agreed upon and ratified in 1781. That was our first National Constitution. Americans were the heirs of a constitutional tradition that was mature by the time of the Convention that met in Philadelphia. Americans had tested that tradition between 1776 and 1787 by writing eleven of the State constitutions and the Articles of Confederation. Later, with the writing of the United States Constitution, they brought to completion the tradition of constitutional design that had begun a century and a- half or two centuries earlier. So when someone stands here and says that this Constitution just represents what those people of 1789 or 1787 or 1791 believed, what they thought, then I say we had better stop, look, and listen. The work of the Framers brought to completion the tradition of constitutional design that had begun a century and a half or two centuries earlier right here in America. Let us move back in point of time and attempt to trace the roots of what is in this great organic document, the Constitution of the United States. Looking back, the search--we are going backward in time now-- takes us first to the Articles of Confederation. A lot of people in this country do not know that the Articles of Confederation ever existed. They have forgotten about them. They never hear about them anymore. And then to the earliest State constitutions, and back of these--going back, back in point of time--were the colonial foundation documents that are essentially constitutional, such as the Pilgrim Code of Law, and then to the proto-constitutions, such as the Fundamental Orders of Connecticut and the Mayflower Compact. As one scholar, Donald S. Lutz, has noted: The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500's and early 1600's, and these in turn lead us back to the Covenant tradition of the Old Testament. It is appropriate, for our purposes here to focus for a short time on those Old Testament covenant traditions because they were familiar not only to the early settlers from Europe--your forebears and mine--but also to the learned men who framed the United States Constitution. In the book of Genesis we are told that the Lord appeared to Abram saying: ``Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: and I will make of thee a great nation, and I will bless thee, and make thy name great;'' (Genesis 12:1,2) In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me, behold, my covenant is with thee, and thou shalt be a father of many nations. Neither shall thy name any more be called Abram, but thy name shall be Abraham; for a father of many nations have I made thee. . . . And I will make nations of thee, and kings shall come out of thee. And I will establish my covenant between me and thee and thy seed after thee in their generations for an everlasting covenant, to be a God unto thee, and to thy seed after thee.'' Again, speaking to Abraham, God said: ``This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised.'' (Genesis 17:10) The Abrahamic covenant was confirmed upon subsequent occasions, one of which occurred after Abraham had prepared to offer Isaac, his son, as a burnt offering in obedience to God's command, at which time an angel of the Lord called out from heaven and commanded Abraham, ``Lay not thine hand upon the lad, . . . for now I know that thou fearest God.'' (Genesis 22:12) The Lord then spoke to Abraham saying, ``I will bless thee, and in multiplying, I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore . . . because thou hast obeyed my voice.'' (Genesis 22:17,18) God's covenant with Abraham was later confirmed in an appearance before Isaac, saying: ``Go not down into Egypt; dwell in the land which I shall tell thee of.'' Sojourn (see Gen. 26:3-5) God subsequently confirmed and renewed this covenant with Jacob, as he slept with his head upon stones for his pillows and dreamed of a ladder set upon the earth, and the top of it reached to heaven, with angels of God ascending and descending on it. God spoke, saying: ``I am the Lord God of Abraham, . . . and the God of Isaac: the land whereon thou liest, to thee will I give it, and to thy seed; and thy seed shall be as the dust of the earth . . . and in thee and in thy seed shall all the families of the earth be blessed.'' (Genesis 28:11-14) At Bethel, in the land of Canaan, Jacob built an altar to God, and God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall not be called any more Jacob, but Israel shall be thy name.'' And God said unto him, ``I am God almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; and the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.'' (Genesis 35:10,11) The book of Exodus takes up where Genesis leaves off, and we find that the descendants of Jacob had become a nation of slaves in Egypt. After a sojourn that lasted 430 years, God then brought the Israelites out of Egypt that he might bring them as his own prepared people into the Promised Land. Exodus deals with the birth of a nation, and all subsequent Hebrew history looks back to Exodus as the compilation of the acts of God that constituted the Hebrews a nation. Thus far, we have seen the successive covenants entered into between God and Abraham and between God and Isaac and between God and Jacob; we have seen the creation of a nation through what might be described as a federation--there is the first system of federalism--a federation of the 12 tribes of Israel, the 12 sons of Jacob having been recognized as the patriarchs of their respective tribes. Joshua succeeded Moses as leader of the Israelites. Then came the prophets and the judges of Israel, and the turmoils of the divided kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and the kingship of David followed. Thus we see the establishment of a monarchy. God covenanted with David, speaking to him through Nathan the prophet, and God promised to raise up David's seed after his death, according to which a son would be born of David, whose name would be Solomon. Furthermore, Solomon would build a house for the Lord and would receive wisdom and understanding. The Ark of the Covenant of the Lord, and the holy vessels of God, would be brought into the sanctuary that was to be built to the name of the Lord. Now I have spoken of the creation of the Hebrew nation, and not without good reason. The American constitutional tradition derives much of its form and much of its content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers in British North America. Donald S. Lutz, in his work entitled ``The Origins of American Constitutionalism'', says: ``The tribes of Israel shared a covenant that made them a nation. American federalism originated at least in part in the dissenting Protestants' familiarity with the Bible''. The early Calvinist settlers who came to this country from the Old World brought with them a familiarity with the Old Testament covenants that made them especially apt in the formation of colonial documents and state constitutions. Winton U. Solberg tells us that in 17th-century colonial thought, divine law, a fusion of the law of nature in the Old and New Testaments, usually stood as fundamental law. The Mayflower Compact--we have all heard of that--the Mayflower Compact exemplified the Doctrine of Covenant or Contract. Puritanism exalted the biblical component and drew on certain scriptural passages for a theological outlook. Called the Covenant or Federal Theology, this was a theory of contract regarding man's relations with God and the nature of church and state. Man was deemed an impotent sinner until he received God's grace, and then he became the material out of which sacred and civil communities were built. Another factor that contributed to the knowledge of the colonists and to their experience in the formation of local governments, was the typical charter from the English Crown. These charters generally required that the colonists pledge their loyalty to the Crown, but left up to them, the colonists, the formation of local governments as long as the laws which the colonists established comported with, and were not repugnant to, the laws of England. Boards of Directors in England nominally controlled the colonies. The fact that the colonies were operating thousands of miles away from the British Isles, together with the fact that the British Government was so involved in a bloody civil war, made it possible for the American colonies to operate and evolve with much greater freedom and latitude than would otherwise have been the case. The experiences gained by the colonists in writing documents that formed the basis for local governments, and the benefits that flowed from experience in the administration of those colonial governments, contributed greatly to the reservoir of understanding of politics and constitutional principles developed by the Framers. Although the Constitution makes no specific mention of federalism, the federal system of 1787 was not something new to the Framers. Compacts had long been used as a device to knit settlements together. For example, the Fundamental Orders of Connecticut, 1639, established a Common government for the towns of Hartford, Windsor, and Wethersfield, while each town government remained intact. In 1642, the towns of Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a compact known as the Organization of the Government of Rhode Island, a federation which became a united colony under the 1663 Rhode Island Charter. The New England Confederation of 1643 was a compact for uniting the colonies of Massachusetts, Connecticut, Plymouth, and New Haven, each of which was comprised of several towns that maintained their respective governments intact. Thus, the Framers were guided by a long experience with federalism or confederalism, including the Articles of Confederation--an experience that was helpful in devising the new national federal system. Lutz says that the states, in writing new constitutions in the 1770s, ``drew heavily upon their respective colonial experience and institutions. In American constitutionalism, there was more continuity and from an earlier date than is generally credited.'' That is why I am here today speaking on this subject. Let it be heard. Let it be known that the roots of this Constitution go farther back than 1787, farther back than its ratification in 1791--farther back. They were writing based on historical experiences that went back 1,000 years, before the Magna Carta, back to the Anglo-Saxons, back another 2,000 years, back another 1,500 years, back to the federalism of the Jewish tribes of Israel and Judah. Wake up. This Constitution wasn't just born yesterday or in 1787. Let us go back to history. Let us study the history of American constitutionalism, its roots, how men suffered under oppressive governments. Then we will have a little better understanding of this Constitution. No, the Constitution is not static. History is not static. The journey of mankind over the centuries is not static. We can always learn from history. To what extent were the Framers influenced by political theorists and republican spokesmen from Britain and the Continent? According to Solberg, republican spokesmen in England constituted an important link on the road to the realization of a republic in the United States. I hear Senators stand on this floor and say that we live in a democracy. This is not a democracy. This is a republic. You don't have to believe Robert C. Byrd. Go to Madison, go to ``The Federalist Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of you who are listening--and you will find the definition of a democracy and the definition of a republic. You will find the difference between the two. John Milton, whose literary accomplishments and Puritanism assured him of notice in the colonies, was significant for the views expressed in his political writings. He supported the sovereign power of the people, argued for freedom of publications, and justified the death penalty for tyrants. English political thinkers who influenced American constitutionalism and who exerted an important influence in the colonies were Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke. And there were others. John Locke may be said to have symbolized the dominant political tradition in America down to and in the convention of 1787. Locke equated property with ``life, liberty, and estate'' and was the crucial right on which man's development depends. Nature, Locke thought, creates rights. Society and government are only auxiliaries which arise when men consent to create them in order to preserve property in the larger sense, and a community calls government into being to secure additional protection for existing rights. As representatives of the people, the legislature is supreme but is itself controlled by the fundamental law. Locke limits government by separating the legislative and administrative functions of government to the end that power may not be monopolized. That is assured by our Constitution also. The people possess the ultimate right of resisting a government which abuses its delegated powers. Such a violation of the contract justified the community in resuming authority. David Hume dealt with the problem of faction in a large republic, and promoted the device of fragmenting election districts. Madison, when faced with the same problem in preparing for the federal convention, supported the idea of an extended republic--drawing upon Hume's solution. Blackstone's view was that Parliament was supreme in the British system and that the locus of sovereignty was in the lawmaking body. His absolute doctrine was summed up in the aphorism that ``Parliament can do anything except make a man a woman or a woman a man.'' His ``Commentaries on the Laws of England'' was the most complete survey of the English legal system ever composed by a single hand. The commentaries occupied a crucial role in legal education, and many of Blackstone's ideas were uppermost on American soil from 1776 to 1787, with vital significance for constitutional development both in the states and in Philadelphia. Although delegates to the convention acknowledged Blackstone as the preeminent authority on English law, they, nevertheless, succeeded in separating themselves from some of his other views. James Harrington's ``Oceana'' presented a republican constitution for England in the guise of a utopia. He concluded that since power does follow property, especially landed property, the stability of society depends on political representation reflecting the actual ownership of property. The distinguishing feature of Harrington's commonwealth was ``an empire of laws and not of men.'' Harrington proposed an elective ballot, rotation in office, indirect election, and a two-chamber legislature. This goes back a long way, doesn't it? Harrington proposed legislative bicameralism as a precaution against the dangers of extreme democracy, even in a commonwealth in which property ownership was widespread. He argued that a small and conservative Senate should be able to initiate and discuss but not decide measures, whereas a large and popular house should resolve for or against these without discussion. These were novel but significant ideas that became influential in America, in this country, before 1787. John Adams was an ardent disciple of Harrington's views. James Harrington was the modern advocate of mixed government most influential in America. That is what ours is. The government of his ``Oceana'' consisted of a Senate which represented the aristocracy; a huge assembly elected by the common people, thus representing a democracy; and an executive, representing the monarchical element, to provide a balancing of power. Harrington's respect for mixed government was shared by Algernon Sidney, who declared: ``There never was a good government in the world that did not consist of the three simple species of monarchy, aristocracy, and democracy.'' The mixed government theorists saw the British king, the House of Lords, and the House of Commons as an example of a successful mixed government. The notion of mixed government goes all the way back to Herodotus, and who knows how far beyond. It was a notion that had been around for several centuries. Herodotus in his writings concerning Persia had expounded on the idea, but it had lost popularity until it was revived by the historian Polybius who lived between the years circa 205-125 B.C. It was a governmental form that pitted the organs of government representing monarchy, aristocracy, and democracy against each other to achieve balance and, thus, stability. The practice of mixed government collapsed along with the Roman Republic, but the doctrine was revived in 17th century England--now we are getting closer--from which it passed to the New World. Those who wrote the Constitution weren't just writing based on the experiences of their time. Let us turn now to a consideration of the renowned French philosopher and writer, Montesquieu. Montesquieu had a considerable impact upon the political thinking of our constitutional Framers. They were conversant with the political theory and philosophy of Montesquieu, who was born 1689--a hundred years before our Republic was formed--and died in 1755. He died just 32 years before our constitutional forebears met in Philadelphia. Americans of the Revolutionary period were well acquainted with the philosophical and political writings of Montesquieu in reference to the separation of powers, and John Adams was particularly strong in supporting the doctrine of separation of powers in a mixed government. Montesquieu advocated the principle of separation of powers. He possessed a belief, which was faulty, that a huge territory did not lend itself to a large republic. He believed that government in a vast expanse of territory would require force and this would lead to tyranny. He believed that the judicial, executive, and legislative powers should be separated. If they were kept separated, the result would be political freedom, but if these various powers were concentrated in one man, as in his native France, then the result would be tyranny. Montesquieu visited the more important and larger political divisions of Europe and spent a considerable time in England. His extensive English connections had a strong influence on the development of his political philosophy. We are acquainted with his ``Spirit of the Laws'' and with his ``Persian Letters,'' but perhaps we are not so familiar with the fact that he also wrote an analysis of the history of the Romans and the Roman state. This essay, titled ``Considerations on the Causes of the Greatness of the Romans and their Decline,'' was produced in 1734. Considering the fact that Montesquieu was so deeply impressed with the ancient Romans and their system of government, and in further consideration of his influence upon the thinking of the Framers and upon the thinking of educated Americans generally during the period of the American Revolution, let us consider the Roman system as it was seen by Polybius, the Greek historian, who lived in Rome from 168 B.C., following the battle of Pydna, until after 150 B.C., at a time when the Roman Republic was at a pinnacle of majesty that excited his admiration and comment. Years later, Adams recalled that the writings of Polybius ``Were in the contemplation of those who framed the American Constitution.'' Polybius provided the most detailed analysis of mixed government theory. He agreed that the best constitution assigned approximately equal amounts of power to the three orders of society and explained that only a mixed government could circumvent the cycle of discord which was the inevitable product of the simple forms. Polybius saw the cycle as beginning when primitive man, suffering from violence, privation, and fear, consented to be ruled by a strong and brave leader. When the son was chosen to succeed this leader, in the expectation that the son's lineage would lead him to emulate his father, the son, having been accustomed to a special status from birth, was lacking in a sense of duty to the public and, after acquiring power, sought to distinguish himself from the rest of the people. Thus, monarchy deteriorated into tyranny. The tyranny then would be overturned by the noblest of aristocrats who were willing to risk their lives. The people naturally chose them to succeed the king as ruler, the result being ``ruled by the best,''--an aristocracy. Soon, however, aristocracy deteriorated into oligarchy because, in time, the aristocrats' children placed their own welfare above the welfare of the people. A democracy was created when the oppressed people rebelled against the oligarchy. But in a democracy, the wealthy corrupted the people with bribes and created faction in order to raise themselves above the common level in the search for status and privilege and additional wealth. Violence then resulted and ochlocracy (mob rule) came into being. As the chaos mounted to epic proportions, the people's sentiment grew in the direction of a dictatorship, and monarchy reappeared. Polybius believed that this cycle would repeat itself over and over again indefinitely until the eyes of the people opened to the wisdom of balancing the power of the three orders. Polybius considered the Roman Republic to be the most outstanding example of mixed government. Polybius viewed the Roman Constitution as having three elements: the executive, the Senate, and the people; with their respective shares of power in the state regulated by a scrupulous regard to equality and equilibrium. Let us examine this separation of powers in the Roman Republic as explained by Polybius. The consuls--representing the executive--were the supreme masters of the administration of the government when remaining in Rome. All of the other magistrates, except the tribunes, were under the consuls and took their orders from the consuls. The consuls brought matters before the Senate that required its deliberation, and they saw to the execution of the Senate's decrees. In matters requiring the authorization of the people, a consul summoned the popular meetings, presented the proposals for their decision, and carried out the decrees of the majority. The majority rules. In matters of war, the consuls imposed such levies upon manpower as the consuls deemed appropriate, and made up the roll for soldiers and selected those who were suitable. Consuls had absolute power to inflict punishment upon all who were under their command, and had all but absolute power in the conduct of military campaigns. As to the Senate, it had complete control over the treasury, and it regulated receipts and disbursements alike. The quaestors (or secretaries of the treasury) could not issue any public money to the various departments of the state without a decree of the Senate. The Senate also controlled the money for the repair and construction of public works and public buildings throughout Italy, and this money could not be obtained by the censors, who oversaw the contracts for public works and public buildings, except by the grant of the Senate. The Senate also had jurisdiction over all crimes in Italy requiring a public investigation, such as treason, conspiracy, poisoning, or willful murder, as well as controversies between and among allied states. Receptions for ambassadors, and matters affecting foreign states, were the business of the Senate. What part of the Constitution was left to the people? The people participated in the ratification of treaties and alliances, and decided questions of war and peace. The people passed and repealed laws-- subject to the Senate's veto--and bestowed public offices on the deserving, which, according to Polybius, ``are the most honorable rewards for virtue.'' Polybius, having described the separation of powers under the Roman Constitution, how did the three parts of state check and balance each other? Polybius explained the checks and balances of the Roman Constitution, as he had observed them first hand. Remember, he was living in Rome at the time. What were the checks upon the consul, the executive? The consul-- whose power over the administration of the government when in the city, and over the military when in the field, appeared absolute--still had need of the support of the Senate and the people. The consul needed supplies for his legions, but without a decree of the Senate, his soldiers could be supplied with neither corn nor clothes nor pay. Moreover, all of his plans would be futile if the Senate shrank from danger, or if the Senate opposed his plans or sought to hamper them. Therefore, whether the consul could bring any undertaking to a successful conclusion depended upon the Senate, which had the absolute power, at the end of the consul's one-year term, to replace him with another consul or to extend his command or his tenure. The consuls were also obliged to court the favor of the people, so here is the check of the people against the consuls, for it was the people who would ratify, or refuse to ratify, the terms of peace. But most of all, the consuls, when laying down their office at the conclusion of their one-year term, would have to give an accounting of their administration, both to the Senate and to the people. It was necessary, therefore, that the consuls maintain the good will of both the Senate and the people. What were the checks against the Senate? The Senate was obliged to take the multitude into account and respect the wishes of the people, for in matters directly affecting the Senators--for instance, in the case of a law diminishing the Senate's traditional authority, or depriving Senators of certain dignities, or even actually reducing the property of Senators--in such cases, the people had the power to pass or reject the laws of the Assembly. In addition, according to Polybius, if the tribunes imposed their veto, the Senate would not only be unable to pass a decree, but could not even hold a meeting. And because the tribunes must always have a regard for the people's wishes, the Senate could not neglect the feelings of the multitude. But as a counter balance, what check was there against the people? We have seen certain checks against the consul; we have described some of the checks against the Senate. What about the people? According to Polybius, the people were far from being independent of the Senate, and were bound to take its wishes into account, both collectively and individually. For example, contracts were given out in all parts of Italy by the censors for the repair and construction of public works and public buildings. Then there was the matter of the collection of revenues from rivers and harbors and mines and land--everything, in a word, that came under the control of the Roman government. In all of these things, the people were engaged, either as contractors or as pledging their property as security for the contractors, or in selling supplies or making loans to the contractors, or as engaging in the work and in the employ of the contractors. Over all of these transactions, says Polybius, the Senate ``has complete control.'' For example, it could extend the time on a contract and thus assist the contractors; or, in the case of unforeseen accident, it could relieve the contractors of a portion of their obligation, or it could even release them altogether if they were absolutely unable to fulfill the contract. Thus, there were many ways in which the Senate could inflict great hardships upon the contractors, or, on the other hand, grant great indulgences to the contractors. But in every case, the appeal was to the Senate. Moreover, the judges were selected from the Senate, at the time of Polybius, for the majority of trials in which the charges were heavy. Consequently, the people were cautious about resisting or actively opposing the will of the Senate, because they were uncertain as to when they might need the Senate's aid. For a similar reason, the people did not rashly resist the will of the consuls because one and all might, in one way or another, become subject to the absolute power of the consuls at some point in time. Polybius had spoken of a regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and then return again to their original stage. Plato on the same line, had arranged six classifications in pairs: kingship would degenerate into tyranny; aristocracy would degenerate into oligarchy; and democracy would degenerate into violence and mob rule--after which, the cycle would begin all over again. Aristotle had had a similar classification. According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the 9th century B.C.--was fully aware of these changes, and accordingly combined together all of the excellences and distinctive features of the best constitutions, in order that no part should become unduly predominant and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively overbalance the others; but that, by being accurately adjusted and in exact equilibrium, ``the whole might remain long steady like a ship sailing close to the wind.'' Polybius summed it up in this way: When any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependency of all the three, and the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency. And so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other. Polybius' account may not have been an exact representation of the true state of the Roman system, but he was on the scene, and he was writing to tell us what he saw with his own eyes, not through the eyes of someone else. What better witness could we have? Mr. President, before the Convention was assembled, Madison studied the histories of all these ancient people--the different kinds of governments--aristocracy, oligarchy, monarchy, democracy, and republic. He prepared himself for this Convention. And there were others in that Convention who were very well prepared also--James Wilson, Dr. William Samuel Johnson, and others. The theory of a mixed constitution had had its great measure of success in the Roman Republic. It is not surprising then, that the Founding Fathers of the United States should have been familiar with the works of Polybius, or that Montesquieu should have been influenced by the checks and balances and separation of powers in the Roman constitutional system, a clear and central element of which was the control over the purse, vested solely in the Senate in the heyday of the Republic. Were the Framers influenced by the classics? Every schoolchild and student in the universities learned how to read and write Greek and Latin. Those were required subjects. The founders were steeped in the classics, and both the Federalists and the Anti-federalists resorted to ancient history and classical writings in their disquisitions. Not only were classical models invoked; the founders also had their classical ``antimodels''--those individuals and government forms of antiquity whose vices and faults they desired to avoid. Classical philosophers and the theory of natural law were much discussed during the period prior to and immediately following the American Revolution. It was a time of great political ferment, and thousands of circulars, pamphlets, and newspaper columns displayed the erudition of Americans who delighted in classical allusions. Our forbears were erudite. They circulated their pamphlets and their newspaper columns. They talked about these things. Who today studies the classics? Who today studies the different models and forms of government? Who today writes about them? The 18th-century educational system provided a rich classical conditioning for the founders and immersed them with an indispensable training. They were familiar with Ovid, Homer, Horace, and Virgil, and they had experienced solid encounters with Tacitus, Thucydides, Livius, Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos, as well as Caesar's Gallic Wars. They were undoubtedly influenced by a thorough knowledge of the vices of Roman emperors, the logic of orations by Cicero and Demosthenes, and the wisdom and virtue of the scriptures. They freely used classical symbols, pseudonyms, and allusions to communicate through pamphlets and the press. To persuade their readers they frequently wrapped themselves and their policies in such venerable classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'', ``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in number were signed by ``Publius.'' Some of the Anti-federalists dubbed themselves ``Cato,'' while others called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation of classical pseudonyms was sometimes used in private discourse for secret correspondence. George Washington's favorite play was Joseph Addison's ``Cato'' in which Cato committed suicide rather than submit to Caesar's occupation of Utica. In the words of Carl J. Richard, in his book ``The Founders and the Classics'' It is my contention that the classics exerted a formative influence upon the founders, both directly and through the mediation of Whig and American perspectives. The classics supplied mixed government theory, the principal basis for the U.S. Constitution. The classics contributed a great deal to the founders' conception of human nature, their understanding of the nature and purpose of virtue, and their appreciation of society's essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The struggles of the Revolutionary and Constitutional periods gave the founders a sense of kinship with the ancients, a thrill of excitement at the opportunity to match their classical heroes' struggles against tyranny and their sage construction of durable republics. In short, the classics supplied a large portion of the founders' intellectual tools. Now, what about the Declaration of Independence? It was on June 7, 1776, that Richard Henry Lee introduced the ``Resolve'' clause, which was as follows: Resolved, that these United States Colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. Following the introduction of Lee's resolution, postponement of the question of independence was delayed until July 1. Nevertheless, on June 11, Congress appointed a committee made up of Jefferson, John Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a declaration. The committee reported on June 28, and, at last, on July 2, Congress decided for independence without a dissenting vote. The delegates considered the text of the declaration for two additional days, and adopted changes on July 4 and ordered the document printed. News that New York had approved on July 9 (the New York Delegates, having been prevented by instructions from assenting, had theretofore refrained from balloting) reached Philadelphia on July 15. Four days later, Congress ordered the statement engrossed. On August 2, signatures were affixed, although all ``signers'' were not then present. Inasmuch as the Declaration was an act of treason--for which any one of those signers or all collectively could have been hanged-- the names subscribed were initially kept secret by Congress. The text itself was widely publicized. Those forebearers of ours who had the courage and the fortitude and the backbone to write the Declaration of Independence, committed an act of treason for which their properties could have been confiscated, their rights could have been forfeited, and their lives could have been taken from them. That is what we are talking about in this Constitution. Men who not only understood life in their times, but also understood the cost of liberty, so they pledged their lives, their fortunes, their sacred honor. Those were not empty words. Would we have done so? Much of the Declaration of Independence was derived directly from the early state constitutions. The things have roots. They didn't come up like the prophet's gourd overnight. The Declaration contained twenty- eight charges against the English king justifying the break with Britain. At least 24 of the charges had also appeared in state constitutions. New Hampshire, South Carolina, and Virginia, in that order, adopted the first constitutions of independent states, and these three state constitutions contained 24 of the 28 charges set forth in the Declaration. Lists of grievances against George III had appeared in many of the newspapers, and as far back as May 31, 1775, the Mecklenburg (North Carolina) Resolves contained the following: Resolved: that we do hereby declare ourselves a free and independent people; are and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the general government of the Congress: to the maintenance of which independence we solemnly pledge to each other our mutual cooperation, our lives, our fortunes, and our most sacred honor. Note that the last sentence of the Declaration of Independence says, ``And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, [we are not supposed to teach those things in our schools today] we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'' Therefore, many of the phrases that were used by Jefferson had already appeared in various forms in the public print. Jefferson also borrowed from the phraseology of Virginia's Declaration of Rights written by George Mason, and adopted by the Virginia Constitutional Convention in June 1776. In the opening Section of that document, the following words appear: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Mason also stated in the Virginia Declaration of Rights, ``That all power is vested in, and consequently derived from the people,'' and that, ``when any government shall be found inadequate or contrary to these purposes, a majority of the community has and indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.'' Jefferson in the Declaration of Independence, stated that ``All men are created equal'' and that they were ``endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'' The last paragraph of the Declaration of Independence states that the representatives of the United States of America, in general Congress, assembled, ``Appealing to the supreme judge of the world for the rectitude of our intention, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states; . . .'' Lutz, whose name I mentioned a few times already, makes the following comment: Any document calling on God as a witness would technically be a covenant. American constitutionalism had its roots in the covenant form that was secularized into the compact. One could argue that with God as a witness, the Declaration of Independence is in fact a covenant. The wording is peculiar, however, and the form of an oath is present, but the words stop short of what is normally expected. But the juxtaposition of a near oath and the words about popular sovereignty is an intricate dance around the covenant- compact form. The Declaration of Independence may be a covenant; it is definitely part of a compact. As to the words, ``All men are created equal,'' American political literature was full of statements that the American people considered themselves and the British people equal. Lutz states, with reference to this paragraph: `` `Nature's God' activates the religious grounding; `laws of nature' activate a natural rights theory such as Locke's. The Declaration thus simultaneously appeals to reason and to revelation as the basis for the American right to separate from Britain, create a new and independent people, and be considered equal to any other nation on earth.'' Now, as to the State Constitutions--I am talking about the roots, the roots of this Constitution. This Federal Constitution which we are talking about amending--what about the State Constitutions? Does the Federal Constitution have any roots in the State Constitutions? Throughout the spring of 1776 some of the colonies remained relatively immune to the contagion which prompted others to move toward independence. This prevented the Continental Congress from breaking with Britain. To spread the virus, John Adams and Richard Henry Lee induced the Committee of the Whole to report a resolution which Congress unanimously adopted on May 10. The resolving clause of that resolution recommended to the respective assemblies and conventions of the United Colonies, that, ``where no government sufficient to the exigencies of their affairs had been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.'' State constitutions were of great significance in the development of our Federal Constitution and our Federal system of government. When the Framers met in Philadelphia, they were familiar with the written constitutions of 13 states, and, as a matter of fact, many of those Framers had served in the State legislatures and conventions that debated and approved the State constitutions. Not only were they, the Framers, conversant with the organic laws of the 13 states, but they were also knowledgeable of the colonial experience under colonial government. As was ably stated by William C. Morey, in the September 1893 edition of ``Annals of the American Academy'' of Political and Social Science: The state constitutions were linked in the chain of colonial organic laws and they also formed the basis of the federal constitution. The change had its beginning in the early charters of the English trading companies, which were transformed into the organic laws of the colonies, which, in their turn, were translated into the constitutions of the original states, which contributed to the constitution of the federal union. The Pennsylvania Constitution of 1701 appears to have been the last written form of government that appeared in colonial times. There had been two previous Pennsylvania Constitutions--1683 and 1696--and these, together with the Massachusetts Charter of 1691, constitute the most advanced colonial forms and provide the nearest approach in the colonial period towards the final goal of the national constitution. The original 13 colonies became 13 States during the decade preceding the 1787 Convention, and all but Connecticut and Rhode Island wrote new constitutions in forming their state governments. These new state constitutions would provide important innovations in American constitutionalism, and the Framers at Philadelphia would benefit hugely, not only from the substantive material and form contained in the Constitutions but also from the experience gained under the Administration of the new governments. Let us examine some of these new constitutions, noting particularly those features in the State constitutions which would later appear, even if varying degree, in the Federal Constitution. Thus we shall see the guidance which these early State constitutions provided to the men at Philadelphia in 1787. Let us first examine article I of the Constitution and observe the amazing conformity therein with the equivalent provisions of the various State constitutions written a decade earlier in 1776 and 1777. Take section 1, for example, in which the U.S. Constitution vests all legislative powers in a Congress, consisting of a Senate and House. At least nine of the State constitutions have similar provisions--so you see, our constitutional Framers just did not pick this out of thin air--perhaps varying somewhat in form, which vest the lawmaking powers in a legislature consisting of two separate bodies, the lower of which is generally referred to as an assembly or House of Representatives or House of Delegates--as in the case of West Virginia, which was not in existence at that time, of course--or, as in the case of North Carolina, a House of Commons. The upper body is generally referred to as a Senate, but it varies, likewise, being sometimes referred to as a Council. Section 2 provides that the U.S. House of Representatives shall choose their speaker and other officers and shall have the sole power of impeachment, and at least a half-dozen states provided that the legislative bodies should choose their speaker and other officers. Section 3 provides for a rotation of Senators, two from each state, so that two-thirds of the Senate is always in being. Many of the state senators were to represent districts consisting of several counties or parishes or other political units, and several of the States, including Delaware and New York, provided for a rotation of the members of the upper body so that a supermajority of the Senate were always holdovers. The Great Compromise--which was worked out at the 1787 Convention and agreed to on July 16, 1787, providing that the Senate would represent the States, while the House of Representatives' representation would be based on population--may well have benefited from the examples set by Delaware and New York. At least eight of the State constitutions provided for impeachment by the lower house. Massachusetts and Delaware provided for the trial of impeachments by the upper body, as does the U.S. Constitution, and Massachusetts required that senators be on oath or affirmation. The New York constitution required a vote of two-thirds of the members present for a conviction in trials of impeachment. Here again, the Framers of the U.S. Constitution had examples before them which would guide them. Conviction, in cases involving impeachment, would, in the instance of New York, not ``extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under the state, but the party so convicted shall be, nevertheless, liable and subject to indictment, trial, judgment, and punishment, according to the laws of the land''--almost the identical language that appeared a decade later in the U.S. Constitution relative to penalties following conviction in impeachment cases, and almost identical to the language in the unwritten English Constitution which appeared 200 years before. At least nine of the State constitutions provided that each House should be the judge of the elections, returns, and qualifications of its own members, with a majority to constitute a quorum and with provisions for a minority (of senators) to compel the attendance of absent senators--the equivalent of language which appears in article I, section 5, of the U.S. Constitution. The provisions of article I, section 5, of the U.S. Constitution allowing each House to determine the rules of its own proceedings could well have been copied from the state constitutions of Maryland, Virginia, Delaware, Georgia, and Massachusetts, and the provision for expulsion of members in the U.S. Constitution could also have been taken from the state constitutions of Delaware, Maryland, and Pennsylvania. The constitutional requirement that revenue bills originate in the House of Representatives was prefigured by the State constitutions of New Hampshire, New Jersey, Virginia, Delaware, Maryland, Massachusetts, and South Carolina. Massachusetts permitted the senate to propose or concur with amendments to revenue bills as was later provided in the U.S. Constitution. The presentment clause of article I, section 7, that is what the Congress tripped over when it passed the nefarious Line-Item Veto Act of 1995, the presentment clause. The presentment clause of article I, section 7, of the U.S. Constitution has been very much in the news lately in reference to the line item veto. The State constitutions of Massachusetts and New York are very revealing and instructive in this regard. The Massachusetts Constitution stated that no bill of the senate or house of representatives should become a law until it ``shall have been laid before the Governor'' and if he approved thereof, ``he shall signify his approbation by signing the same. But if he has any objection to the passing of such bill, he shall return the same, together with his objections thereto, in writing, to the Senate or House of Representatives, in whichever the same shall have originated; who shall enter the objections sent down by the Governor, at large, on their records, and proceed to reconsider the said bill.'' That is what we are about to do very soon with respect to the most recent veto of the President. So one can see these provisions that appear in our own Constitution had their roots in various other documents and experiences that long preceded the writing of the U.S. Constitution. But, if after such reconsideration, two-thirds of the said senate or house of representatives, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall have the force of the law. But in all such cases, the votes of both Houses shall be determined by yeas and nays. The language in the Massachusetts State Constitution is strikingly similar to that which appeared a decade later in the U.S. Constitution concerning Presidential vetoes of bills and the requirement that such bills be presented to the President for his signature or for his approval or rejection. The U.S. Constitution's language concerning vetoes and the presentment of legislation to the Chief Executive for his approval or disapproval is again exceptionally reminiscent of the language in the New York State Constitution, which provides for a council of revision of all bills. Note, however, the New York State Constitution language: All bills which have passed the Senate and assembly shall before they become laws, be presented to the said council for their consideration, and if it should appear improper that the said bill should become a law of this state, that they return the same, together with their objections thereto in writing, to the Senate or House of Assembly (in which so ever the same shall have originated) who shall enter the objection sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said Senate or House of Assembly shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be a law. And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case, the bill shall be returned on the first day of the meeting of the legislature after the expiration of the said ten days. The similarity of the language in the U.S. Constitution's veto and presentment clause to the equally complex language of the Massachusetts and New York State Constitutions is enough to make one sit up and take notice. Except for some slight variations, the U.S. Constitution appears to copy, almost verbatim, the text set forth in the two State constitutions. It cannot be said with a straight face that this is a matter of mere coincidence. It seems to me that one can easily see the fine hand and the eloquent voice of Alexander Hamilton, in the case of New York, and Elbridge Gerry, Nathaniel Gorham, and Rufus King, in the case of Massachusetts, in the behind-the-scenes discussions that probably occurred in the Convention with respect to these and other clauses in the Constitution which appeared to have been copied, almost word for word, from various State constitutions. The President's State of the Union Message, which grows out of article II, section 3, of the U.S. Constitution, was likely foreordained by the New York Constitution which stated that it was the duty of the Governor ``to inform the legislature, at every session, of the condition of the state, so far as may respect his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; . . .'' Nine of the States provided that the Governor should have the title of commander in chief, thus prefiguring section 2 of article II of the U.S. Constitution which states that the President ``shall be commander in chief'', and at least five of the State constitutions gave the chief executive of the State the power to grant reprieves and pardons, except in cases of impeachment, just as we find in article II, section 2, of the U.S. Constitution with respect to the President's powers. Other similarities between some of the State constitutions and the U.S. Constitution--in varying degrees, of course--have to do with the requirement to assemble at least once in every year; legislators' privilege from arrest; the requirement that a census be taken for the purpose of the apportionment of representatives; the laying and collection of taxes by the legislative branch; the taking of an oath before entering upon the office of Governor and other high State offices, as in the case of the President and other officials at the national level; provisions in the State and National constitutions for amendments thereto; and prohibitions against bills of attainder and ex post facto laws. Many of the States, obviously remembering British history--you see, the roots go back, they go back and farther back--expressly prohibited the governor from proroguing, adjourning, or dissolving the legislature, but did provide that the Governor could, under extraordinary circumstances, convene the legislature in advance of the time to which it had previously adjourned. That the States were very wary of strong and overbearing executives could be seen in the fact that in at least seven of them, the Governor was limited to a 1-year term--that is what they though of their chief executives--2 years, in the case of South Carolina; and 3 years in Delaware and New York. Prohibitions against eligibility for reelection were also prevalent in several of the State constitutions. In at least eight of the States, the constitutions provided for the selection of the Chief Executive by the legislative branch. In at least three States--Delaware, New Jersey, and New York--the common law of England was to remain in force. And some of the States, such as South Carolina, appeared to have copied in their constitutions, or their Bills of Rights which were annexed thereto that language from the Magna Carta which, in the language of the South Carolina constitution, states: That no freeman of this state be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, exiled or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land. In all of the State constitutions, the Governor was commander-in- chief, and the Federal constitution also makes use of the term, as I say, in relation to the President. In all of the States except Connecticut, Rhode Island, and Georgia, and in South Carolina, the State constitutions before 1787 had granted the pardoning power to the Governor, and, in the Federal Constitution, the President's pardoning power was drawn from this example of the states. Almost every State prescribed in its constitution a form of oath for its officers, and the oath required of the President of the United States appears in the last paragraph of section 1, article II, of the U.S. Constitution. The framers provided for the choice of President to be indirect. In the Constitution of Maryland (1776) we find an almost exact counterpart of the electoral college by whom the President is chosen, in which the Senators from Maryland were to be selected by a body of electors, chosen every 5 years by the inhabitants of the State for this particular purpose and occasion. This method of choosing the President may have been suggested from the manner of choosing Senators under the Constitution of Maryland. An examination of these early State constitutions clearly indicates a vast wealth of knowledge concerning constitutional principles and a gradual evolution leading up to the convention based on the experience gained from the administration of governments under the new State constitutions. I see the constitutions of the States as tributaries-- tributaries--to a mighty stream of American constitutionalism flowing to the mighty ocean of events that culminated in the grand handiwork of the framers at the 1787 Convention. Between the completion of State constitutions and the Philadelphia Convention that produced the United States Constitution stood the Articles of Confederation which went into effect on March 1, 1781, from the substance and experience of which Madison and Hamilton and Franklin and others at the Convention gained so much guidance. Let us now turn our attention to the Articles of Confederation. Mr. President, I see others on the floor. They may wish to speak. I will be happy to yield the floor at this point if I can regain it later and continue my statement.

Mr. BYRD

Mr. BYRD. Mr. President, when many people contemplate Easter, thoughts of chocolate bunnies, Easter egg hunts, and family gatherings come to mind. Little girls dream of a new frilly lace-bedecked frock, shiny new patent leather shoes, and a festive bonnet adorned with ribbons and flowers to top it all off. It is hard not to feel an excitement in the air as the daylight hours increase, the winter coats are put away, and the sweet smell of the season's first roses fill the air. The landscape is freshly decorated with a pallet of azaleas, tulips, jonquils, and pink and white flowers of the dogwood. Overnight, it seems, the silhouettes of the tree branches disappear, replaced by the first green buds of spring. Neighbors, who seemed almost strangers during the long dark winter, suddenly greet you from their front porches, and passersby out for an afternoon stroll stop to offer that much-needed gardening advice, or they admire your latest planting. The first aroma of charcoal fills the air as grills are fired up after a long rest. Children play outside after dinner, trying to squeeze in every bit of the daylight into their playtime. Everything seems new, everything seems exciting, everything seems reborn. But during this season of rebirth, how many stop to ponder the true meaning of this most holiest of seasons of the Christian calendar? Easter, Jesus' resurrection from the dead, was the key belief of the earliest Christians. In fact, that truly miraculous event has made an imprint on other religions and inspired to thought and deed individuals who do not practice the Christian faith. Mohandas K. Gandhi said simply and eloquently: Jesus, a man who was completely innocent, offered himself as a sacrifice for the good of others, including his enemies, and became the ransom of the world. It was a perfect act. The Bible says a great deal about Easter, that central mystery of the Christian faith. That Jesus was crucified and miraculously raised from the dead is hard for many to accept. It was hard for the early Christians to comprehend also, but the faith in the risen Christ spread like a wildfire on a dry and windy summer day! Easter arrives late this year, on April 23, almost as late as it can possibly be. It is celebrated on a Sunday on varying dates between March 22 and April 25, and is, therefore, called a movable feast. Easter embodies many pre-Christian traditions. The origin of its name is unknown; however, many scholars have accepted the derivation proposed by the 8th-century English scholar St. Bede--that it probably comes from Eastre, the Anglo-Saxon name of a Teutonic goddess of spring and fertility, whose festival was celebrated on the day of the vernal equinox. The Easter rabbit, a symbol of fertility, and colored Easter eggs, originally painted with bright colors to represent the sunlight of spring, and used in egg-rolling contests, are traditions that have survived. According to the New Testament, Christ was crucified on the eve of Passover and soon rose from the dead. The Easter festival commemorated Christ's resurrection. Over time, there were serious differences between the early Christians over the date of the Easter festival. Those of Jewish origin celebrated Easter immediately after Passover, which fell on the evening of the full moon. Therefore, Easter, from year to year, fell on different days of the week. Christians of Gentile origin, on the other hand, wished to commemorate the resurrection on Sunday, the first day of the week. It was on the same day of the week each year, but fell on different dates from year to year. In 325 A.D. Roman Emperor Constantine the Great, who, early in his reign, issued a document allowing Christians to practice their religion within the empire, convoked the Council of Nicaea. The council unanimously ruled that the Easter festival should be celebrated throughout the Christian world on the first Sunday after the full moon following the vernal equinox. At Easter, we receive again God's greatest gift of love: Jesus. Spring is a time to remember that gift. Death and resurrection are entwined not only in the death and resurrection of our Lord, but also in spring's final struggle with winter's strong grasp. There is a struggle in both dying and in birth and it is logical to think that something must be born in order to die. However, from Jesus' words in John's Gospel, Chapter 12, verses 23 and 24, as Jesus foresees his own death, the Bible tells us something different--it tells us that something must die in order to be born. Jesus says: The hour is come, that the Son of man should be glorified. Verily, verily, I say unto you, Except a corn of wheat fall into the ground and die, it abideth alone, but if it die, it bringeth forth much fruit. Easter is the time of year that finds many churches overflowing. Parking attendants direct traffic caused by the overflow of cars on this special day. Pews are packed tight. Extra chairs line the aisles, and much of this crowd only sees the inside of a church once a year, and Easter is the day. It is nice to see new faces. Those who attend church every Sunday look around at all the new faces, hoping they will become familiar, and struggle to find their regular seats. The struggle is worth it, however, because some of these same people will come back and join with the community that has worshiped together all year. They will become members of a church family like those who have risen in the darkness to watch the youth group tell the Easter story at sunrise-- there is nothing like it, telling it at sunrise--or who are praising God with their voices in the choir, or who cooked the pancake breakfast for Palm Sunday, or who decorated the Sanctuary with Easter Lilies. Perhaps they will be like those who teach the children the meaning of God's love and grace in Sunday school classes. They will find a church home. They will find God. They will be awakened. They will be reborn! During our lives, we all experience the loss of a loved one. Have you ever thought about the resurrection story in a way that brought you comfort in your time of grief? A little boy recently lost his grandfather, and one day, when he was remembering his grandfather, he said to his mother, ``Mom, Easter will be extra special this year. We will have two reasons to celebrate! Granddad and Jesus have both risen!'' If a 6-year-old can understand the beauty of the Easter story on this level, think of the hope that this celebration can bring to others who are grieving. I talked with one of my constituents on yesterday who lost his wife. I said: Come Eastertime, your wife knows your grief. She knows about your sorrow. And the beauty of the story is, you can see her again. Every year at this time I remember my beloved grandson, Michael, who died in a tragic accident in 1982. I know that he is in a better place, and my faith in the Lord carries me through my sorrow. I can visualize Michael stepping out of the tomb with Christ, and I know that he, too, is ``alive.'' Hear these words of Trappist monk Henri Nouwen: Easter does not make death less painful or our own grief less heavy. It does not make the loss less real, but Easter makes us see and feel that death is part of a much greater and much deeper event, the fullness of which we cannot comprehend, but which we know is a life-bringing event. He goes on to say: The best way I can express to you the meaning death receives in the light of the resurrection of Jesus is to say that the love that causes us so much grief and makes us feel so fully the absurdity of death is stronger than death itself. Love is stronger than death. The same love that makes us mourn and protest against death will now free us to live in hope. So, Mr. President, let Easter be the time to remember that the tomb is empty, that those who have passed before us have been reborn and will live eternal life. Let us rejoice at this miracle and the miracle of God's love. As we hide Easter eggs for our children, our grandchildren, or even our great grandchildren, and help them search through the green and purple Easter grass for the last sticky marshmallow chick and a handful of jelly beans, let us not forget the gift that God gave us. As Jesus said in the third chapter of the Gospel of John, verse 16: For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. These are powerful words, and they are often used as words of persuasion, to bring others to Christ. God gave His only begotten Son . . . for us! What a powerful love that is! While the Senate is in recess and the schools are closed for ``spring break,'' I hope that those who are listening will take this time to recall this miracle of Easter. I continue to believe that the warp and woof of this great Nation are the deeply rooted religious beliefs of its people. Our religious beliefs, though diverse, our common faith in the Creator, remind all of us to look for the greater good, the higher, better part of ourselves and of others. The lessons differ, but the message is the same. Let us love one another. The resurrection of Jesus is the basis for the Christian belief that not only Jesus, but all Christians, will triumph over death. In closing, I recall the words of William Jennings Bryan and his thoughts concerning Proof of Immortality: If the Father deigns to touch with divine power the cold and pulseless heart of the buried acorn and to make it burst forth from its prison walls, will He leave neglected in the earth the soul of man, made in the image of his Creator? If He stoops to give to the rosebush, whose withered blossoms float upon the autumn breeze, the sweet assurance of another springtime, will He refuse the words of hope to the sons of men when the frosts of winter come? If matter, mute and inanimate, though changed by the forces of nature into a multitude of forms, can never be destroyed, will the imperial spirit of man suffer annihilation when it has paid a brief visit like a royal guest to this tenement of clay? No, I am sure that He who, notwithstanding His apparent prodigality, created nothing without a purpose, and wasted not a single atom in all His creation, has made provision for a future life in which man's universal longing for immortality will find its realization. I am as sure that we live again as I am sure that we live today. Mr. President, let us celebrate these words of hope this Easter season. The tomb is empty and the soul of man will never, never die. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. BYRD

Mr. BYRD. Mr. President, the conference report on the budget resolution for fiscal year 2001 has been adopted. I note that this will be the last budget resolution to be managed by my good friend from New Jersey, Senator Lautenberg. Senator Lautenberg joined the Budget Committee in 1985, 2 years after he was first elected to the Senate. Since that time, he has become an expert on the Federal budget process. He has worked hard. He has been diligent in his business. The Bible says: Seest thou a man diligent in his business? he shall stand before kings. Frank Lautenberg has been diligent in his business. His mastery of Federal budget matters was aided, to a great degree, by his earlier mastery of business matters in the private sector. Frank Lautenberg was one of the founding partners of a company called Automatic Data Processing. That company now employs 37,000 employees and has a market capitalization in excess of $31 billion. Just prior to being elected to the Senate, Frank Lautenberg served as both chairman and chief executive officer of that company. As a businessman, he developed an uncanny ability to perform mathematical calculations in his mind. As such, his staff on the Budget Committee is usually playing catchup, as Senator Lautenberg restates budgetary issues in percentage terms. The people of New Jersey, and, indeed, the people of the United States, have benefited greatly from the business expertise that Frank Lautenberg has brought to the U.S. Senate and especially to his assignment as the ranking member of the Senate Budget Committee. Frank Lautenberg rose to the position of ranking member in 1997, following the retirement of Senator James Exon of Nebraska. Throughout Senator Lautenberg's service on the Budget Committee, he has been an extraordinarily able and outspoken advocate of funding for our Nation's children, for the environment, and for transportation. In addition to serving on the Senate Budget Committee, Senator Lautenberg also serves on the Appropriations Committee, where he is ranking member of the very important Subcommittee on Transportation on which I serve. In that regard, Senator Lautenberg is eminently well versed in both the budget and appropriations processes. So I commend Senator Lautenberg for his very able service to the Senate and to the Nation in his capacity as ranking member of the Senate Budget Committee. We will miss not only his contributions but also his good humor in future budget debates. Mr. President: It isn't enough to say in our hearts That we like a man for his ways; It isn't enough that we fill our minds With psalms of silent praise; Nor is it enough that we honor a man As our confidence upward mounts; It's going right up to the man himself And telling him so that counts. If a man does a work that you really admire, Don't leave a kind word unsaid. In fear to do so might make him vain And cause him to lose his head. But reach out your hand and tell him, ``Well done.'' And see how his gratitude swells. It isn't the flowers we strew on the grave, It's the word to the living that tells. So I say to Frank Lautenberg: Well done.

Mr. BYRD

Mr. BYRD. Mr. President, today the Senate will vote on two cloture motions, the first, to end debate on the Finance Committee's substitute amendment to H.R. 6, the Marriage Tax Penalty Relief Act, and, the second, to end debate on the underlying bill. First, I am, as are others, deeply concerned with that anomaly in the tax code known as the ``marriage penalty.'' I can think of no rational reason why two individuals who have vowed a lifelong commitment to each other through the sacred institution of marriage should, in certain cases, have their combined income taxed at a higher rate than that of two unmarried persons. At a time of declining social values, it simply does not make sense for the Congress to sanction policies which clearly work to the detriment of family stability. Throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society. The purpose of this kind of union between human beings is primarily for the establishment of a home atmosphere in which a man and a woman pledge themselves exclusively to one another and who bring into being children for the fulfillment of their love for one another and for the greater good of the human community at large. Indeed, I doubt that any Senator would refute the assertion that the promotion of marriage and family stability is in the best interest of the nation as a whole. The question then is how to utilize the nation's tax code to move towards this goal. Marriage neutrality, for reasons that I will leave to the distinguished Finance Committee Chairman, the Senator from Delaware, and, the Finance Committee ranking member, the Senator from New York, to explain, is seemingly incompatible with a progressive income tax system that allows for married couples to file jointly. That is, if this body believes that higher-income households should pay higher taxes than lower-income households, and that married couples should be allowed to file joint returns, marriage neutrality can be a difficult goal to achieve. While I applaud the efforts of the Senator from Delaware and the Senator from New York in their attempts to balance these seemingly incompatible goals, I remain hesitant about jumping on any bandwagon at this time without first raising some concerns. My primary concern, which I would presume is a concern of all Senators, is the cost associated with each of these proposals. The Republican plan, upon which the majority leader has filed a cloture motion, would cost approximately $248 billion over 10 years, and would explode after the first 10 years, costing the Federal Government $39 billion per year thereafter. This cost would be paid for through the non-Social Security surpluses that are projected by the Congressional Budget Office over the next 10 years. The so-called Democratic alternative, on the other hand, is not much better. The proposal would cost $150 billion over 10 years, but once fully phased in, is expected to cost about $48 billion per year thereafter. The basis upon which these tax cuts are being proposed is the presumption that the Congressional Budget Office's projections of non-Social Security surpluses will come to pass and will be large enough to cover tax cuts of this magnitude without causing the Federal budget to revert back into the kind of annual triple-digit billion dollar budget deficits we suffered over the last two decades. Never mind the fact that these non- Social Security surpluses are not yet in the hands of the Treasury. Never mind the fact that this Senate has not yet ensured that our domestic spending needs will be met in the coming years. Never mind the fact that such enormous tax cuts, once enacted, would be very difficult to reverse. To its credit, however, the Democratic alternative is a substantively better proposal. Not only would it eliminate all sixty-five marriage penalties in the tax code, compared to the Republican proposal which would eliminate only three of the penalties, but it would also limit tax relief to those who actually suffer marriage penalties. Nevertheless, the Senate stands ready to shut down debate on these measures, and to effectively prohibit the Democratic alternative from being offered. Moreover, amendments that could possibly improve these proposals, or, at least, ensure that these proposals are enacted in the most cost efficient way possible, would also be limited--perhaps not to be allowed to be called up at all. Another concern of mine is that both proposals are distributionally skewed away from lower- and middle-income families. Senators should be encouraged to offer amendments so that these proposals better target families who most need tax relief. Instead, Senators are discouraged from offering amendments to improve the measure. Watching the debate yesterday, I noted Senators suggesting that amendments should be limited to only five or six so that the Senate could finish its work tonight and recess for the Easter break. As far as this Senator from West Virginia is concerned, if this legislation is as important as most Senators seem to think it is, we should stay in tomorrow, perhaps Saturday, and for as long as it takes to provide the best targeted, most cost-efficient tax package possible. This legislation should not be railroaded through this Chamber in order to accommodate a political deadline or to avoid debate on controversial amendments. I, for one, will not support shutting down debate on these measures without first having these concerns addressed. I refuse to allow myself to be backed into a position where I must support limiting debate on a so-called marriage penalty relief bill simply to avoid political attacks that I do not support marriage penalty relief. My constituents understand my position on this matter. I have been married, now, almost 63 years, so I know about the marriage penalty. It has not changed over the years. I will oppose cloture on this bill, not because I am opposed to marriage penalty relief, but because I am opposed to this kind of legislating. Putting aside the policy implications of these votes for a moment, I am growing increasingly concerned about how this body is seemingly incapable of considering any legislation without, first, limiting amendments that may be offered, and, second, limiting the ability of Senators to debate the legislation. These marriage penalty proposals are only the most recent example of this new style of legislating. Education savings accounts, the Social Security earnings limit, and bankruptcy reform have all been debated in this fashion. The stock options bill that was brought to the floor was limited to one hour of debate with no amendments or motions in order. Presumably, this agreement was reached to prevent minimum wage amendments from being offered. Indeed, time after time, day after day cloture motions to end debate are being filed before debate even has a chance to get under way. The rationale behind today's cloture vote is that a majority of constituents and legislators support marriage penalty relief, so this legislation should be passed without delay. Ironically, this is exactly why the Senate was established as the body of majority rule but minority right. When James Madison arrived in Philadelphia in 1787 to correct the ``injustices'' of the Articles of Confederation, he had derived a general theory of politics based on his experiences in the Virginia state legislature. His focus was on the majoritarian premises of popular government. While Madison pondered that legislators would primarily respond to the passions and interests of their constituents, he realized that minority rights were not so much to protect the people from government as to protect the people from popular majorities acting through government. In recent months, however, and, I say this not as a Democrat, but as a member of the minority, minority rights have been pushed aside in order to accommodate political expediency. The Democrats, as I observe them, are standing up for their rights as a minority, not attempting, as has been stated several times in the past, to dictate the Senate's schedule. This Democrat is certainly not trying to dictate the schedule. I do, however, have an interest in the Senate. And, I think that the Senate has gone downhill in recent years. I think that it is too partisan. I have seen bills called up, and cloture immediately filed upon them to end debate on them when there had been no debate. I, when I was majority leader, filed cloture motions in similar situations, but I never did it time after time and day after day, I did it very seldom. Senators do have the right to offer amendments, they do have the right to debate those amendments, and they have the right to a roll call vote on those amendments if they want it. Similarly, this Senator, along with every other Senator in this body, has the right to debate amendments offered by other Senators and to a roll call vote on those amendments. This was the message that I was hoping to convey last Friday during the debate on the budget resolution. When I objected to the unanimous consent request regarding the inclusion of some fifty amendments to the budget resolution, my goal was not to prevent the consideration of those amendments. In fact, I was suggesting that the Senate spend the extra time on Saturday and on Monday to debate and to vote on those amendments. It was my desire to hear debate and to vote on those amendments, not to move on to final passage. The Senator who offers the amendment, of course, has a right to have debate on it and a right to ask for a vote. But any other Senator also has a right to hear the debate and also has a right to ask for a vote if he wants it. So it is not just the Senator who offers the amendment whose case is put in jeopardy because he is denied a vote. The whole Senate and the people I represent, the people the Senator from Rhode Island represents, are entitled to a debate also on the amendment. As I have said before, I will not support the erosion of minority rights in the Senate simply to advance a politically popular initiative. I hope that my colleagues will take a moment to consider their votes in this context, rather than in the context of what is politically popular and expedient.

Mr. BYRD

Mr. BYRD. Any way is fine. The Senator from Alaska had a lot of time. He spoke a long time. I sat here a long time. I was glad to listen to it. Mr. Voinovich was here before I came. He should have his time.

Mr. BYRD

Mr. BYRD. I wonder if we could restore that time, half to the other side and half to this side on the question. I ask unanimous consent.