In Part 1 of this series, I discussed restoring the Constitutional Balance between the States and the Federal Government. We now turn to restoring the balance between the people and the government at all levels, not just Federal. There are a couple of things that need to be done to to restore the power of the people and limit the power of the government. The Framers thought they had prevented a centralization of power by listing a clear set of limited, delegated powers for the national government. In an attempt to ensure that this was not misunderstood, the Bill of Rights makes the explicit statement that the ultimate source of government is the people and that they retain all rights and privileges except those delegated to the government explicitly.
The first necessity is electoral—our system of government requires as many competitive electoral districts as possible. With gerrymandering run amok, we have very few that actually are in any way competitive. A simple, straight-forward solution to this problem is to eliminate all forms of gerrymandering, whether by state governments, the Courts, the Department of Justice or any other group. Electoral districts should be drawn roughly rectangular, starting in the North West part of a state and drawn to encompass roughly the same number of voters. Districts like this and this (both from my home state of Illinois) should never be allowed under any circumstances. Fixing this would shake up the House of Representatives as well as State Legislatures. And that would be a good thing. All of a sudden, many, if not most districts would become competitive and that is good for a responsive government.
Having elected representatives that are accountable to the people is not enough. There needs to be a firewall to protect the people from egregious acts by the government. Judges are ill-suited to this, especially life-tenure Federal judges that are accountable to nobody. The true firewall, the very last line of defense for the citizen is the jury. That group of peers, drawn from the community where the crime was committed, is the only thing standing between the power of the state and the person sitting in the dock. Unfortunately, the jury system has been corrupted and co-opted by the state into a tool for prosecutors rather than a check on unfettered government power. Fixing this is actually easy, it simply means educating the populace about the true nature and function of the jury.
The nature and composition of the jury is critical. It must truly be randomly selected from the community with no way for anyone to interfere, except when a clear, demonstrable bias or clear need for exclusion of a juror is shown. There should be no peremptory challenges permitted by lawyers. These allow both prosecution and defense to exclude from the jury anyone they think might be unfavorable to their case without specifying any reason. This defeats the random selection and creates a jury that does not represent the community, but reflects the biases of the prosecutor and defense attorneys. Challenges for cause against a person serving on a jury must be specific and must be examined only in the light of the defendant obtaining a fair trial and the state receiving a fair hearing of the charges. For example, an exclusion of someone who knows the victim or the defendant (or their families) is perfectly acceptable as it would be impossible to ensure there was no bias involved. It would also be critical to make it very difficult to be excused from jury duty to ensure that self-selection does not create bias.
The true function of the jury is revealed in the steps they should take to determine the outcome of a particular case. First, did the government prove beyond a reasonable doubt that the individual did what they are accused of. Second, did the defendant know, or should they have known, that the act was criminal. Third, should the act, in fact, be a crime. Fourth, does the proposed punishment fit the crime. If the answer to ANY of these is “no” then the jury should acquit. I’m sure that some reader is now screaming “jury nullification” in a not so kind tone. I will refer you, gentle reader, to the case “United States v. Moylan” [417 F.2d 1002 (4th. Cir. 1969)] where the 4th Circuit Court of Appeals unanimously stated:
If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision.
Sadly, many judges will remove a juror that understands and knows this, as the government is quite intolerant of citizens who understand this right. That has to be fixed before this can be wholly effective. That said, education can help, so long as those who do understand the power of the jury and the right to acquit keep this to themselves in the courtroom and are careful about how they go about addressing the issues in the jury room. If you hang a jury, one of your fellow jurors might rat you out and this is cause for removal from the jury.
I suspect everyone knows, understands and agrees that the government must prove their case beyond a reasonable doubt in order to obtain a conviction. Reasonable doubt means that all things being equal, there exists no evidence nor theory that a reasonable person would accept. It does not mean perfection nor proof beyond any doubt. If the evidence is fairy examined by the jury, and both sides are able to freely present their theories and attempt to discredit the other side, and the prosecution presents convincing evidence, then step one is completed. If not, then an acquittal is to be returned.
Next, we turn to an extremely important concept called mens rea. No law should be enforced against someone who did not know, and had no reasonable way of knowing, that an act was illegal. An example of such is prosecution for packaging lobster taills in plastic rather than a cardboard box. There was no reasonable way for Ms. Huang to know that it was against Honduran law and applied to her because of the Lacey Act. This would not let a murderer or rapist “off the hook” by a claim that they didn’t know it was against the law. It would require the government to prove that any tax evasion or fraud was intentional for criminal charges to be proved. A mistake should not be punished as a crime. So, when the jury reviews the case, they must make a determination that the defendant knew, or that a reasonable person would know, that the act was illegal. If so, then step two is completed. If not, then an acquittal is to be returned.
We move then to the most controversial of the steps, and one that has caused problems in the past-the notion that the jury may simply reject a conviction if the accusation is for an act that ought not be be illegal. I fully acknowledge that some number of people will go free when they should have been convicted, but the system is supposed to err on the side of acquittal not on the side of conviction. As Blackstone wrote “it is better that 10 guilty persons escape than that one innocent suffer“. In other words, we always err to finding the person “not guilty”. To protect against a single nullfiier (e.g. an anarchist who actually appears for jury duty and serves with the intent of acquitting anyone in the dock), this step would require only 2/3 vote by the jury. If 5 of the jurors rejected the law, then an acquittal is returned, otherwise this step is complete.
Finally, the last step is for the jury to decide if the proposed punishment fits the crime. With politicians enacting ever harsher penalties for misdemeanors and felonies punishments are often extreme compared to the damage done by the crime. To draw an example from the arts, I mean to prevent injustice such as the following:
Javert: Now bring me prisoner 24601. Your time is up snd your parole’s begun.You know what that means.
Valjean: Yes, it means I’m free.
Javert: No! It means you get your yellow ticket-of-leave. You are a thief.
Valjean: I stole a loaf of bread.
Javert: You robbed a house.
Valjean: I broke a window pane. My sister’s child was close to death and we were starving.
Javert: You will starve again unless you learn the meaning of the law.
Valjean: I know the meaning of those 19 years; A slave of the law
Javert: Five years for what you did; The rest because you tried to run
Yes, it’s fiction. But we have laws on the books that have equally inequitable punishment. The aforementioned Virginia law against wearing a mask in public is a Class 6 FELONY! That’s a sentence of 1 to 5 years in prison. For wearing a mask. With no criminal intent. No jury should ever convict anyone of this crime based on step 3 above, but even should they do so, the punishment does not fit the crime. And yes, before you ask, this law is enforced. Again, we’ll use the 2/3 standard. If 5 members of the jury feel the proposed punishment is unjust, and acquittal should be returned. Otherwise, assuming all previous steps were completed, a conviction should be returned. An alternative solution, and one I prefer, is to eliminate mandatory minimum sentences and have the jury return and advisory opinion to the judge as to the sentence.
Reformed juries, with the powers as described, act as a powerful check on the government. Political districts drawn in roughly similarly shaped and populated ways act as a strong check on the political parties and make politicians more accountable (since they are more vulnerable). These two important checks would go a long way to restoring the republic.
In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 3 I’ll cover limiting the power of the national government (specifically the Interstate Commerce Clause) and in Part 4 I’ll tie it all together with some additional thoughts.