It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

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  Jury to the Rescue

  In 1733, the newly installed New York colonial governor, William Cosby, had caused quite a controversy by prosecuting and removing a number of important government officials who had opposed him. Outraged at this manifest injustice, a number of influential citizens established the New York Weekly Journal, the first independent political newspaper in the colonies, in order to criticize the governor and his actions. John Peter Zenger was hired as its first editor and printer.

  Floored at public criticism, Governor Crosby had the New York Weekly Journal’s newspapers burned and Zenger arrested and charged with the crime of seditious libel. The prosecution argued that the newspaper sought to “traduce, scandalize, and vilify” the governor, and thus, Zenger should be punished accordingly. Andrew Hamilton, the lawyer for Zenger, responded that it would be manifestly unlawful to punish “the just complaints of a number of men who suffer under a bad administration.” The difficulty for Hamilton was that he had no established cases supporting this position; truth could not be a defense to a charge of seditious libel.

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  Hamilton, one of the most brilliant lawyers in the colonies at the time, thus devised the following strategy: Convince the jury that the law was not just, and they should therefore acquit Zenger, even if he was genuinely guilty according to the established law, a device known today as jury nullification. In his address to the jury, Hamilton framed the significance of the case:

  [T]he question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main[land] of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us; a right to liberty of both exposing and opposing arbitrary power . . . by speaking and writing truth.3(Emphases added)

  The jury, roused by the eloquence of Hamilton, disregarded the established law and returned a verdict of not guilty. Stated differently, the jury ignored corrupt man-made laws and ruled according to the Natural Law. Unable to control the jubilations of the courtroom spectators, the governor’s Chief Justice sulked out of the courtroom, having failed to suppress the right to speak out against the government’s injustices.

  Unlike the discussions here which have dealt with the process of drafting and promulgating a law, litigation procedure relates to how those laws are actually applied to individuals. Typically when we think of due process, it is these sorts of laws that come to mind: Juries, rules of evidence, habeas corpus, and so on. The importance of these rules of procedure is brilliantly highlighted in the John Peter Zenger trial; without a jury, the governor’s judges would have found Zenger guilty and thrown him in jail, thus eviscerating his natural right to criticize the government. As Hamilton urged the jury, they were capable of countering tyranny in their capacity as jurors, thus ensuring the just application of the law. There are much too many rules of procedure to cover even briefly in this remainder of this chapter. Thus, we shall focus on the role that litigation plays in properly constraining the government and on one of the most important components of any lawsuit: The right to a jury. Despite being one of the most fundamental procedural rights rooted in our legal tradition, we shall see that it has still come under attack in recent years.

  Even if a legislative command is passed according to all of the procedural protections discussed above, how must the government go about depriving people of their liberty? Can the government extort twenty billion dollars from BP merely by demanding and threatening (as was done) or by passing a law which satisfies Professor Fuller’s eight requirements (as was not done)? Sadly, the Supreme Court has oftentimes taken the stance that the act of passing a law itself satisfies the requirement of due process. This view, however, entirely disregards the other “half ” of due process: Fair hearings in neutral courts, preceded by ample notice of litigation and an opportunity to appeal. This is procedural due process. The government can under no circumstances deprive one of life, liberty, or property without litigating it in courts; in essence, the government, like any other entity or individual, must persuade a jury that BP has violated the law, and that for whatever reason, the federal government itself is entitled to compensatory damages in the amount of twenty billion dollars. Without access to courts and fair hearings, then the propriety of a government action is entirely in the opinion of the very government that took it. It therefore violates James Madison’s famous truism that “no man is allowed to be a judge in his own cause” and subjects us all to the tyranny of the majority.

  In order to ensure that one is deprived of liberty only when genuinely warranted, that deprivation must take place in a neutral court and possess the following elements: Notice, hearing, fairness, and a right of appeal. These elements are as old as our legal culture. As has been proven over time, each is essential before a deprivation of liberty can be considered proper. For example, could the government commence a lawsuit against you without first notifying you, and then collect a default judgment after you fail to defend yourself in court? Clearly not; there is a requirement that interested parties receive adequate notice. Moreover, the right of appeal plays a crucial role by ensuring that judgments are in fact correct, and that a litigant was not the victim of a judge’s improvident behavior.

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  Like the above requirements, juries have ancient roots in our legal system. When the Magna Carta proclaimed in 1215 that “no freeman shall be hurt in either his person or property, unless by the lawful judgment of his peers, or by law of the land,” it thus guaranteed a right to have convictions determined by juries. Blackstone adamantly praised the role of the jury in securing justice: He contended that they served as a crucial restraint on improvident judges. This is so for two reasons. First, without a jury, litigants could be at the mercy of a corrupt or prejudiced judge. Similar to the problem with vague statutes described above, a judge could determine guilt for nearly any reason he wished, regardless of actual guilt or innocence. Second, judges possess a bias by virtue of being appointed by some machinery in the government or elected by voters for partisan reasons, which is mitigated by the presence of a jury comprised of the people themselves. In essence, without a jury there could be no such thing as separation of powers, and the government would be, in the words of James Madison, “a judge in its own cause.”

  To illustrate the crucial role that juries play in our legal system by ensuring that deprivations of liberty only occur when warranted, imagine how the John Peter Zenger trial would have come out differently, if he did not have a jury trial. As noted above, the judges were appointed by the very same governor who had charged Zenger with the crime of seditious libel. Interestingly, Zenger’s initial attorneys were disbarred after they challenged the judges for their loyalty to the governor. Consider the Chief Justice’s instructions to the jury, issued before they took leave for deliberation. As we can see, arrogance was just as common then as now. Imagine the Chief Justice’s face when the jury didn’t follow these orders:

  The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt,
and which you may leave to the Court.4

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  In other words, in light of the content of the newspaper’s articles, the Chief Justice all but commanded the jury to return a guilty verdict. More fundamentally, however, these instructions highlight not just the potential biases of judges, but how juries will oftentimes be more faithful to the Natural Law and its principles of justice, rather than simply whatever is customary and dictated by precedent.

  This crucial protection provided by juries has parallels in other political institutions as well, what I will collectively refer to as tripartite nullification. In addition to jury nullification of state prosecutors, the states retained the power to nullify the unconstitutional behavior of the federal government. Under this concept, states are obligated to refrain from enforcing unconstitutional federal laws. Third, individuals should have the right to withdraw their consent to state and local governments, in effect nullifying governmental actions taken in violation of their natural rights. This tripartite nullification should sound familiar: It is, in essence, checks and balances as between federal, state, and local governments, and the people themselves. What would happen if checks and balances were wholly eliminated at the federal level of government, that is, the Supreme Court could no longer strike down laws as unconstitutional, the president himself could declare war, and Congress could pass any legislation without fear of an executive veto or a judicial invalidation? Government would expand even further than it has already. Tripartite nullification is just as essential to keeping government within its proper scope. Sadly, however, it has been wholly ignored.

  As an example, consider how the crucial right to jury trials in criminal proceedings has come under attack. Currently, defendants in the juvenile justice system are not given a constitutional right to a jury trial. Nonetheless, findings of guilt as a juvenile can be used to elevate sentences for later convictions as an adult. This is a particularly troubling concern given the recent proliferation of three-strikes laws, which provide for drastically elevated sentences if the defendant has a past criminal record. Thus, those who received prior convictions in juvenile courts without a jury are to be punished the same as those who received those prior convictions in adult criminal courts. Lest one dismiss this difference as trivial, it is worth noting that racial and socioeconomic biases have been well documented amongst juvenile court judges, thus creating a risk that a child discriminated against in juvenile court could receive fifteen more years in prison later in life than if he had access to a jury and all of its crucial protections.5

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  The history of American freedom is, in no small measure, the history of procedure.

  —JUSTICE FELIX FRANKFURTER

  Sadly, we live in a society today that has forgotten the lessons of the Zenger trial, and decries the granting of due process to certain persons more than their deprivation to others. Many question the principles espoused in this chapter by challenging: Why is it that we have to give “terrorists” the same rights that upstanding American citizens enjoy? Why should “murderers” receive the dignity of a trial and a jury? Moreover, this stance so often dovetails with both American exceptionalism and legal Positivism. Here is how this perverse argument goes: Because the government grants us our rights, and we as a people are created superior to others, then it follows that we as a people are to enjoy greater rights than others. Similarly, we are not wrong to transgress against individuals born in other countries.

  This line of argumentation should however sound shockingly familiar: It is the ideological justification for the Third Reich. It also conflicts with moral universalism, the philosophy that all humans are subject to the same moral standards. Thus, if it is wrong for a group of people to be aggressors against us, it is wrong for us to be aggressors against them, and similarly, if it is right for us to receive certain procedural protections, then it is also right for all people to receive those protections. The source of moral universalism is the Natural Law: Because we are endowed with inalienable rights by virtue of being human, then all humans are endowed with those rights, and must be treated equally, irrespective of the place of their birth or what the government says they have done. The modern-day empire which we have fashioned, meddling as it does in the affairs of foreign countries, violates moral universalism in every way possible and predictably leaves us and our children at home with a bloated, broken system.6

  Millennia of history have taught us that tyranny is the inevitable consequence of assigning justice to the discretion of government officials. To say that alleged terrorists shouldn’t enjoy the same procedural rights as Americans is to place our full and abiding trust in the government’s ability to determine who is guilty and who is not. Anyone who espouses the prudence of such a policy should know the story of Mohammed Akhtiar, an Afghan citizen who was mistaken for a terrorist and detained in Guantanamo Bay for three years. Ironically, he was maliciously abused because he supported America and rejected the teachings of hatred; his tormentors were not the U.S. military, but his fellow inmates.

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  But more fundamentally, how can we allow the clear intent of the Founders and the struggles of Zenger to be cast aside by the simple assertion that “we are fighting an unconventional war”? Aren’t such claims of public necessity always the excuse? Why is now any different? A quick examination of history will show that these same words have been spoken in nearly identical language, by nearly every government for hundreds of years. Although the war might be unconventional, the claim that it justifies suppression of procedural rights is anything but.

  Some may contend, however, that they are not complicit in suppressing due process because they trust the government, but because they have a “gut feeling” that the suspect is in fact guilty. But if we are capable of intuiting guilt without the rigors of the judicial system, then why would we ever need procedural rules? It is precisely because human intuition and judgment have proven over time to be insufficient that these rules of procedure were devised.

  Moreover, if we genuinely prefer that innocents remain in prison (and believe me, they do) than actual terrorists go free, then the issue becomes one of sacrificing liberty to security. To do so in the context of procedural due process is even more outrageous than in other contexts: You are giving up someone else’s liberty for your own security. How else shall we define tyranny of the majority? It is because of the manifest injustice of sacrificing another’s liberty for greater security that William Blackstone believed it “better that ten guilty persons escape than that one innocent suffer.” And even if we as a people are still prepared to deprive others of their rights and impugn the role of justice in our society, we must ask: How long will it be until it is you or I who is sacrificed in an effort to keep our neighbors more secure?

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  Conclusion

  Robert Bolt’s question to us in A Man for All Seasons, as the individuals who will ultimately shape government policy:

  What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!

  No, my readers, there is no security in such policies; only tyranny, oppression, and the death of liberty. As Justice Felix Frankfurter once said, “It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” It is at precisely times like these that we must each decide for ourselves: Are we to secure our liberties, or cast them aside?

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  Chapter 12

  A Dime Isn’t Worth a Penny Anymore:

  The Right to Sound Money

  The evils of the Federal Reserve System (the Fed) run so
deep that its proponents understand its operations must take place in full secrecy. Murray N. Rothbard once said this about the Fed:

  [T]here is a federal agency that tops the others in secrecy by a country mile. The Federal Reserve System is accountable to no one; it has no budget; it is subject to no audit; and no Congressional committee knows of, or can truly supervise, its operations. The Federal Reserve, virtually in total control of the nation’s vital monetary system, is accountable to nobody—and this strange situation, if acknowledged at all, is invariably trumpeted as a virtue.1

  This fact, in tandem with the current financial crisis, has recently prompted calls for transparency of this system as a means to bring about a realization of all it does. Congressman Ron Paul (R-Texas), for example, has authored a bill to audit the Fed; a bill that enjoyed majorities in both houses of Congress, yet never became law. What is the purpose behind this push for transparency? The belief is that once the American people become aware of what these central bankers are clandestinely doing with our hard-earned money, the people will demand an end to the Fed.