June 26, 2019

"Together with the right to vote, those who wrote our Constitution considered the right to trial by jury 'the heart and lungs, the mainspring and the center wheel' of our liberties, without which 'the body must die; the watch must run down; the government must become arbitrary.'"

"Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions. J. Adams, Diary Entry (Feb. 12, 1771), in 2 Diary and Autobiography of John Adams 3 (L. Butterfield ed. 1961); see also 2 J. Story, Commentaries on the Constitution §1779, pp. 540–541 (4th ed. 1873)."

Beautiful use of historical citation by Justice Neil Gorsuch, writing for the plurality in United States v. Haymond.

The heart and lungs, the mainspring and the center wheel...

I'd never seen that quote before. A 1766 letter from John Adams. I was so touched it made me cry!

ADDED: Here's the full "Earl of Clarendon to William Pym" letter, presented with this introduction:
In 1765, a London newspaper printed four letters on the Stamp Act crisis by an author writing under the pseudonym of William Pym. (The writer had actually mistaken John Pym’ s first name for William.) Pym’ s second letter was subsequently reprinted in a Boston newspaper. Adams, writing as the Earl of Clarendon, responded to Pym in three installments between January 13 and 27, 1766.

Adams’ s response ranks among the most elegant and moving pieces that he ever wrote. He clearly enjoyed the fiction of writing an other-worldly debate between these two great statesmen of the English Civil War. His prose crackles with sarcasm as he mocks Pym for his apostacy [sic] from the principles of revolutionary republicanism. The theme of Clarendon’ s first letter is the unconstitutionality of juryless courts and taxation without consent. The second letter is a stirring defense of the spiritedness of American liberty and virtue against the doctrine of passive obedience. The third letter, one of the most literary pieces that Adams ever wrote, is a systematic explication of the “essentials and fundamentals” of the British constitution.
AND: I've often seen the Supreme Court's reference to "the heart of liberty" (in Planned Parenthood v. Casey), but never before the heart and lungs of liberty.

67 comments:

traditionalguy said...

That pretty well summed it all up. Our right to a Trial by Jury with a Trial Lawyer on our side is the sole reason that we have a smidgen of liberty left.

Ken B said...

If Adams touched a woman and made her cry his statues must come down!

Lucid-Ideas said...

"...the right to a jury trial sought to preserve the people’s authority over its judicial functions."

Amen. So too with 'nullification' by de-facto. If 'only juries' may take someone's liberty, than 'only juries' may restore it against a 'preponderance of the evidence' or the instructions of the judge.

traditionalguy said...

And FTR: Federal District Attorneys are totally corrupt and do the bidding of the powerful everytime...The Truth be damned. They can't wait for the next promotion no matter whatthey have to do to the innocent .

Ken B said...

This is a bit confusing. John Pym was long dead. He was an important parliamentary leader in the English civil war (one of those Charles sought to arrest in the House of Commons). Was someone writing under a pseudonym?

Vance said...

One wonders why most American's rights, including property, are then adjudicated without a jury... especially in the agency system. I work mostly in Worker's Compensation, where people do not have a jury at all deciding facts. Yet their lives are far, far more impacted by what happens in front of that ALJ than fighting a speeding ticket in justice court.

Why don't we put juries back in the agency system?

Narr said...

Damn straight! We're told that jury service (I've been pooled but never called) is everyman and everywoman's equivalent to military service. I like that analogy, with the caveat that court officers and commanding officers are very different things, as much as some in the legal profession would have it otherwise.

Narr
Nullification rules

Unknown said...

And in the UK, there are actually debates about doing away with jury trials because of unequal outcomes.

EDH said...

"Facts are stubborn things."

Rory said...

The quote's from 20 years before the writing of the Constitution, and Adams was in Europe when it was written. I suspect Goresuch has always had the quote lined up, and just inserted it given the opportunity.

Robert Cook said...

"'...the right to a jury trial sought to preserve the people’s authority over its judicial functions.'

"Amen. So too with 'nullification' by de-facto. If 'only juries' may take someone's liberty, than 'only juries' may restore it against a 'preponderance of the evidence' or the instructions of the judge."


Yes! They tell juries they must find defendants guilty if the facts prove they violated the law. Baloney! Juries can acquit defendants whom they believe are guilty of the charges if they want to. Typically, this will be when the jury finds the charges excessive or unjust, or the law itself to be unjust. It is a way for citizens to directly reject a law they disdain.

Rory said...

Gorsuch, I meant.

traditionalguy said...

I say we ring the Paiste 80 incher in celebration of the 4th of July Declaration as John Adams told us we should do.

Dust Bunny Queen said...

Simple contuitation of the old Penn/Meade trial. Our Revolutionary Fathers had a better understanding of English Rights. I still believe and hold them. My home is my Castle, my right as a freeborn citizen to bear arms, vote (as a taxpayer), and petition my Government is inviolable. What might be questionable in these determinations?

AND our right to bear arms, which shall not be infringed, to protect ourselves among other things from a government that might wish to strip us of those rights by making us defenseless.

The Founders had just been through a period where those fundamental rights and the right of self defense were taken from them by a dictatorial government.

Quaestor said...

Was someone writing under a pseudonym?

Pseudocomprehension will do stuff like this.

mockturtle said...

Cookie asserts: Juries can acquit defendants whom they believe are guilty of the charges if they want to.

Especially when the defendant is a famous black ex-athlete and the victims are white.

narciso said...

that's all well and good, but he had already been tried for some offenses, it's not like this was conjured out of thin air,

traditionalguy said...

That's the gamble. If the Defendant takes the Prosecutor's plea offer, the Defense avoids the jury conviction and a longer sentence. But if the Prosecution takes the Defense offer, the Prosecution avoids the Jury acquittal and a trial lawyer who brags all over town.

John Lynch said...

Since almost no one gets a trial by jury, but plea bargains instead, could we have a ruling banning the practice? Plea bargaining is terrible for our system.

Fernandistein said...

John Pym was long dead.

This is W. Pym, Automotive Repair & Maintenance Services.

Kevin said...

The heart and lungs, the mainspring and the center wheel...

Mansplaining.

Gahrie said...

Since almost no one gets a trial by jury, but plea bargains instead, could we have a ruling banning the practice? Plea bargaining is terrible for our system.

The system barely works now. If you eliminate plea bargains, the justice system will come screeching to a halt. We simply can't afford the time or money to give everyone a jury trial. It's unpleasant, but true.

Gabriel said...

There were a lot of Founding Fathers and they said a lot of things in the lot of years that preceded the ratification of the Constitution.

James Madison, for example, is only one of the Founders who drafted the Constitution and his original proposal was heavily amended because lots of other people with different opinions were there and had a say. Yet people go back and quote James Madison on what the Constitution means as though he wrote it all himself and it was unanimously approved without changes.

Now if you base an argument in "The Federalist" that's a little different because they were expounding the Constitution as adopted: nonetheless those three shouldn't get all the say either, about what they thought it meant.

John Adams and Thomas Jefferson weren't even in the country when the Convention was going on. Yet for some reason they get appealed to as well. Then, as now, it was a big country with a wide diversity of opinion.

John Lynch said...

How come England can manage jury trials but we can't?

Gabriel said...

I'm not sure why Gorsuch would quote "those who wrote our Constitution" and then go on to quote someone who did not write the Constitution. Lovely quote, but not applicable.

I think to establish the fact that the people who wrote the Constitution thought juries were necessary, you ought to quote one of the people who wrote the Constitution even if he didn't express himself as elegantly as Adams, writing decades earlier on a different topic, did.

Gabriel said...

Facts are stubborn things, as Adams once said, not about the Constitution, quoting someone else who wasn't talking about the Constitution either.

narciso said...

meanwhile the jag's won't let go off their quarry,


https://www.ocregister.com/2019/06/26/defense-starts-presenting-its-case-in-court-martial-of-decorated-navy-seal-edward-gallagher-charged-with-multiple-war-crimes-in-iraq/

Gahrie said...

How come England can manage jury trials but we can't?

England has a plea bargaining system. It is much more regulated than ours. The sentence reduction for instance depends entirely on how soon the accused agrees to a plea bargain. The sooner you plead guilty, the better bargain you get.

The Godfather said...

Very early in my career, I remember an experienced trial court Judge saying (in Chambers, off the record) that if you're charged with a crime, in almost every case you should demand a jury trial, because judges hear so many cases in which the defendant is guilty, they really have a hard time applying that presumption of innocence thing.

William said...

I was reading Trevelyan's history of the England in the 19th century. The landed gentry imposed some pretty harsh penalties for poaching, but the local juries would not convict under those laws. As a result, the laws had to be changed.....I've served on a few juries. There are some people with extreme opinions but they got mellowed out in the jury room.....Be interesting to see what a Kentucky jury makes of the erroneous reporting on the Covington students. If the jury finds fault with the media, I expect we'll soon hear pundits on tv telling us how the jury system is some kind of medieval anachronism. Worse than the electoral college in some ways.

Darkisland said...

Where in the Constitution is there any right to vote for anyone?

The president is elected by electors the state legislature shall choose by any means they think appropriate. That has, by now evolved to mean popular vote but that is state, not federal, constitution. There is nothing I can see in the federal constitution that would prevent a state from selecting electors by a tug-of-war between their 2 houses. Assuming they could amend their constitution to cover this.

Representatives? Nope. "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

So if a state selects their legislature by town councils or other non-popular vote, they can select congress critters the same way.

The Senate was specifically excluded from popular vote until the 17th Amendment. Even now Senators are elected the same way as Reps:

"The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures"

A several amendments say that, if they otherwise would exist, people can't be restricted from voting by reason of race, sex, age, payment of poll tax and a few other reasons. There are still a number of reasons why voting rights can be restricted.

I am a US citizen, I have no right to vote for president, congressman or senator. How can that be if the Constitution gives me some right to vote? Answer, there is no federal right to vote. All voting rights are state, not federal, rights.

I'll be happy to be wrong if someone can point me to the appropriate article, section, amendment etc of the US Constitution.

John Henry

J. Farmer said...

OT:

Anyone remember when the open borders crowd used that gut-wrenching photo of three-year-old Alan Kurdi dead on a beach to morally blackmail Europeans into thinking it was their duty to let millions of young North African and Middle Eastern men into their countries? It's for the children!

Our open borders crowd is hoping to operate from the same playbook, and are pushing this tragic story. NPR even has this ridiculous headline: A Father And Daughter Who Drowned At The Border Put Attention On Immigration. Got that? Spotlight on immigration. The fact that this man put his and his child's life at risk by trying to swim across a body of water just proves how evil Americans are by having a border in the firs place. NBC headlined the story with this absurdity: "Family of Salvadoran migrant dad, child who drowned say he 'loved his daughter so much'" Nancy Pelosi waited no time in stepping on the corpses: "Pelosi slams US for ignoring 'obligations to humanity' in response to photo of drowned migrants." Huffington Post helpfully informs us: "Don Lemon Wells Up Over Photo Of Drowned Migrant Father And Daughter." People, when Don Lemon cries, government must act.

Now I don't want to sound histrionic, but it seems to me you might even describe what was going on at the border as an "emergency. But Trump once said that, too. So that can't be right. Oh, I know, we should stop enforcing the border and just let whoever shows up in. That will totally cut down on poor migrant families dangerously trekking their children across a thousand plus miles of territory.

Or we could try closing the border and announcing that no new asylum claims will be processed for at least the next six months.

Chuck said...

Althouse I am in total agreement with your sentiments in this post about Justice Gorsuch’s beautiful use of the historical letter. I always wonder in instances like this of almost startlingly brilliant opinion writing; where did the inspiration come from? Was it from the Justice’s own reading? From a judicial clerk? Or from a brief? A big public policy case might merit a dozen or two amicus briefs in addition to the main briefs from the parties.

I’ve had portions of briefs that I wrote get quoted by trial and appellate judges in their opinions and short of a favorable jury verdict, there’s nothing more satisfying.

J. Farmer said...

@John Henry:

How can that be if the Constitution gives me some right to vote? Answer, there is no federal right to vote.

What about the 15th Amendment?

john said...

Help me here, I obviously dont understand legal. It says the "judgement was vacated and the case was remanded". Wasnt the opinion of the 10th Circuit, which had overturned the district judge, sustained? So which judgement was vacated?

Second, since this act was a criminal offense, why and how did the "preponderance of the evidence" standard apply? Unless child pornography is a now civil matter.

Lucien said...

I hope Justice Gorsuch remembers that quote if he ever faces a case where someone is thrown in a hole without trial because someone unaccountable said they were an Enemy Combatant.

J. Farmer said...

@Lucien:

I hope Justice Gorsuch remembers that quote if he ever faces a case where someone is thrown in a hole without trial because someone unaccountable said they were an Enemy Combatant.

Obama already devised a method for handling that problem: just kill them.

Gahrie said...

How can that be if the Constitution gives me some right to vote? Answer, there is no federal right to vote.

What about the 15th Amendment?


"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation."

The 15th Amendment doesn't give anyone the right to vote. It just says you can't deny someone the right to vote based upon race, color, or previous servitude. In fact, Black people were commonly denied the right to vote, especially in the South. They just pretended to use other reasons.

J. Farmer said...

@Gahrie:

The 15th Amendment doesn't give anyone the right to vote.

Certainly, true. But does the US Constitution really "give anyone" a right to anything? Is it not a document that is supposed to describe the appropriate limitations on state power? So, for example, the right to free speech is not something given to us by the government but instead is a right acknowledged in the First Amendment and defended by preventing the government from "abridging free speech." And isn't the phrase "the right of citizens of the United States to vote" at least an acknowledgment that such a right exists? I don't know the answer to this question but am just putting it out there.

narciso said...

true the younger awlaki found himself in bad company, just a chip off the old block


https://babalublog.com/2019/06/26/the-daring-escape-of-a-venezuelan-political-prisoner-after-15-years-of-imprisonment/

Limited Perspective said...

"thrown in a hole without trial"

Sounds like a couple of days in the drunk tank. Also sounds like KP or Latrine Queen duty in the military (or as the slackards called it, "the salt mines").

Personally, when I reached SSGT, I thought of sending them out to sharpen the barbwire. I considered this my own invention to swift military justice, but was overruled.

narciso said...

well but Russia or turkey or something:


https://thefederalist.com/2019/06/26/michael-flynn-attorney-suggests-special-counsel-withheld-key-information-defense/

Gahrie said...

And isn't the phrase "the right of citizens of the United States to vote" at least an acknowledgment that such a right exists? I don't know the answer to this question but am just putting it out there.

There is such a right, but as was pointed out above, it is not absolute, and is a function of state law. For instance, in some states felons can vote, in others they can't.

Darkisland said...

What about the 15th Amendment, J Farmer?

I thought I addressed that in my comment when I said:

A several amendments say that, if they otherwise would exist, people can't be restricted from voting by reason of race, sex, age, payment of poll tax and a few other reasons. There are still a number of reasons why voting rights can be restricted.


But if you think US citizens have some Constitutional right to vote, please explain where I can go to exercise mine.

I don't get to vote for presidential electors
I don't get to vote for Congressman/woman
I don't get to vote for Senator

John Henry

narciso said...

where we might end up:


https://dailycaller.com/2019/06/26/macron-teens-national-service/

Ann Althouse said...

"This is a bit confusing. John Pym was long dead. He was an important parliamentary leader in the English civil war (one of those Charles sought to arrest in the House of Commons). Was someone writing under a pseudonym?"

See my addendum. The answer is yes, these were both pseudonyms.

J. Farmer said...

@Gahrie:

There is such a right, but as was pointed out above, it is not absolute, and is a function of state law. For instance, in some states felons can vote, in others they can't.

Oh, I agree. I don't actually have much of an opinion either way on Harry's post. I'm just sort of contemplating the question out loud.

narciso said...

Just like janus, who toppled the grafton administration in the early 1770s, phillip james whose complaint against rival warren hastings, would later serve as the basis for Edmund burke's unsuccessful impeachment,

J. Farmer said...

@Darkisland:

But if you think US citizens have some Constitutional right to vote, please explain where I can go to exercise mine.

See above where I mistakenly wrote Harry's, instead of Henry's. Apologies. I wasn't meaning to contradict your initial post. Just thinking out loud.

J. Farmer said...

@narciso:

true the younger awlaki found himself in bad company, just a chip off the old block

You can't possibly know that.

n.n said...

The heart, lungs, brain, arms and legs, and assorted colorful clumps of cells, of a human life formerly viable, were at the root of Planned Parenthood v. Casey. However, human and civil right take baby steps.

Yancey Ward said...

What is the liver and pancreas of liberty?

Yancey Ward said...

Yes, the right to a trial by jury is so fundamental to actual liberty. It is a big impediment to government jailing of dissidents. This also goes hand in hand with the right a speedy trial, a right, by the way, that is slowing being eroded away. I suspect that you will see increasing attacks on the right to a jury trial, too.

Unknown said...

The liver of liberty is the criminal justice system that filters toxins out of the body politic.

Unfortunately ours is rather jaundiced.

Yancey Ward said...

And the gall bladder of liberty?

rhhardin said...

Juries are for supreme court nullification.

KheSanh 0802 said...

As an historical note: John Adams wrote the Massachusetts Constitution which became the model for the US Constitution. That is the impact he had on our Constitution though he was out of the country. Adams was an incredibly talented and ethical man. He deserves a much higher place in the pantheon of Founders than he is generally given.

narciso said...

Actually not a bad take, but it was in florida:
https://mobile.twitter.com/MartiniShark/status/1143982078398275586?fbclid=IwAR1FpJdr3JToDiCOEzHvU_P52FS4u8JZTlVXXo_S226f8yXg1e7fFCVgO5I

Birkel said...

Now do the Administrative State.
And extrajudicial trials at universities.

Let's be radical and increase the sphere of freedom that we deserve as humans.

It would be nice if a liberal, Democratic, or Leftist would give up the dream of power.

traditionalguy said...

Remember that John Adams was a Christian with the strength and courage that faith embues into a man.

Ralph L said...

Ironically, the first Earl of Clarendon was a leading royalist and grandfather of Queens Mary and Anne.

Gospace said...

Darkisland said...
Where in the Constitution is there any right to vote for anyone?

The president is elected by electors the state legislature shall choose by any means they think appropriate. That has, by now evolved to mean popular vote but that is state, not federal, constitution. There is nothing I can see in the federal constitution that would prevent a state from selecting electors by a tug-of-war between their 2 houses. Assuming they could amend their constitution to cover this.


Used to be that way. When discussing the Constitution, you must read the whole thing- including amendments. 14th 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,15 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Citizens have a right to vote for their electors- takes away the. power of the state legislatures to pick by any means they desire. Two ways to do that- the Maine and Nebraska way with one elector per congressional district, and 2 for the state winner, or winner take all. Can't divide them up by popular vote- because then there's no way to tell which elector represents your vote. Can't use the results in all the other states as the popular vote compact decrees, because that takes away the right to vote for your electors.

Amendment 24 further affirms the right of citizens to vote for electors: 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Curiously, Amendment 23 gives electors the District of Columbia- but gives Congress the power to decide how the District's electors will be picked. And the 24th applies to states- not the District of Columbia.

Darkisland said...

Thank you GoSpace.

So you are saying that as a United States Citizen, living in the United States, I have federal voting rights. You weren't explicit but I am assuming you mean to vote for federal offices (Prez, hours, senate) since I have been clear that I have state voting rights under the state constitution.

OK, where do I go to exercise these rights? Where do I sign up for a ballot?

(For those who don't know, I live in the Estado Libre Asociado de Puerto Rico. Literally Free Associated State of Puerto Rico. Usually called the Commonwealth of PR in English)

As for the amendments that some have said give voting rights, they only give those rights if they would otherwise exist. A woman's right to vote can't be denied because they are a woman. But just because they are a woman they do not have the right to vote if a felon (some states), non-resident, underage or other reasons.

Even your example of the 14th does not contradict me. The state can select electors without letting male adults vote, it just gets penalized. A state willing to accept the penalty would be able to eliminate the popular vote for president.

John Henry

Darkisland said...

An oddity of being Puerto Rican is that, although we cannot vote for president we can run for president.

Puerto Ricans, at least those borne on the island after 1943, are natural born citizens under the 14th Amendment. This is because "The United States" is defined by law for most purposes including citizenship as the 50 states, DC, PR, Guam, USVI. More recently Marianas is included.

My son, born in Fajardo PR, has the same citizenship as I do, born in NY.

John Henry

Mark Jones said...

Gahrie said, "
The system barely works now. If you eliminate plea bargains, the justice system will come screeching to a halt. We simply can't afford the time or money to give everyone a jury trial. It's unpleasant, but true."

Well, then, perhaps the government (governments at all levels, really) will have to be more selective about whom they prosecute. Or maybe even, god forbid, strike numerous overreaching laws from the books because they're unenforceable when everyone is entitled a jury trial.

But as others have said, it's living under unelected, unaccountable bureaucrats in administrative agencies that really erodes our liberty. We ought to be able to demand a jury trial with a jury of our fellow ordinary citizens and a conviction by that jury before the alphabet soup agencies can rob or imprison us.

Narr said...

Roman and Byzantine emperors, when the system clogged up every few centuries, would just make "digests" of the laws and throw out a lot of old ones.

I'm with Mark Jones.

When almost everything is a crime, there can be no justice.

Narr
Just a peasant

James Pawlak said...

The Founders also proclaimed the Right of the People to keep AND bear arms in self-defense AND defense against internal tyranny.