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Bush’s Contempt for Trial by Jury

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BOWING TO PUBLIC PRESSURE, the Bush administration has modified its rules for the trials of suspected terrorists captured abroad. Included among the new rules are: (1) the accused will be presumed innocent rather than guilty; (2) the government will be required to prove guilt beyond a reasonable doubt; (3) the defendant will have the right to have an attorney represent him; and (4) the accused will not be required to testify or incriminate himself.

In case anyone is wondering where the administration got these principles, they are guaranteed by the Bill of Rights in the U.S. Constitution. Specifically, they are the guarantees of civil liberty that were enshrined by our ancestors in the Fourth, Fifth, and Sixth Amendments to the original document that called the federal government into existence.

And guess why our ancestors were so insistent on their being included in the Bill of Rights — they knew that government officials throughout history had arbitrarily jailed and punished people who they “knew” were guilty of a crime. In other words, our ancestors expressly included these guarantees of civil liberty in the Constitution to protect us ordinary people from the abuse of power by our very own federal government officials!

With its continued insistence that the guilt of the accused be determined by military officers, however, the Bush administration continues to denigrate the important and fundamental right of trial by jury. That is the right that enables an accused to be tried by ordinary citizens rather than by government-appointed judges or even by elected judges!

The right of trial by jury extends all the way back to Magna Carta — the Great Charter — when the great barons of England made King John admit (at the point of a sword) that his powers were not unlimited. Why were our English ancestors so willing to fight and die for the right of trial by jury over the centuries? Why did our American ancestors consider the right so important as to be included in the Bill of Rights and in every state constitution in the country? The great legal jurist William Storey provided the answer in his Commentaries on the Constitution of the United States (1833):

The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people. Indeed, it is often more important to guard against the latter, than the former. The sympathies of all mankind are enlisted against the revenge and fury of a single despot; and every attempt will be made to screen his victims. But how difficult is it to escape from the vengeance of an indignant people, roused into hatred by unfounded calumnies, or stimulated to cruelty by bitter political enmities, or unmeasured jealousies? The appeal for safety can, under such circumstances, scarcely be made by innocence in any other manner, than by the severe control of courts of justice, and by the firm and impartial verdict of a jury sworn to do right, and guided solely by legal evidence and a sense of duty. In such a course there is a double security against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy. So long, indeed, as this palladium remains sacred and inviolable, the liberties of a free government cannot wholly fall.

The famous 18th-century legal jurist Sir William Blackstone provided us an important reminder about trial by jury, one that every American should heed, even while our government officials demean it:

A celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time, when their liberties were lost, were strangers to the trial by jury.

Contrary to popular opinion, trial by jury is not some legal technicality designed to let the guilty go free. In the words of Blackstone, it is instead the “palladium” of our freedom, the “great bulwark” of our liberty. We forget that at our peril.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.