American jury notes

From CyberOne Wiki

Justice Story wrote that the "trial by jury" guaranteed by the Constitution was "generally understood to mean . . . a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction can be had." 2 J. Story, Commentaries on the Constitution of the United States 541, n. 2 (4th ed. 1873) (emphasis added and de-leted). 2 This right was designed "to guard against a spirit of oppression and tyranny on the part of rulers," and "was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties." Id., at 540-541.

this is the guy that provided legaleze that gutted it.

The problem for WE the people in forming a government is how we instantiate ourselves, our values and our respect for each other into the future.

How will the state we create take action? How will we constrain it?

How does the state take action? How can a citizenry respond?

What were the actions that we agreed should be open to the state in relation to a citizen? What were the constraints we specified.

Did I in my wildest dream, my most sinister understanding of this government we were constituting believe that I was giving the state the power to act in ways that would take away my liberty and autonomy and privacy.

What were the bulwarks against such possibility?

We could do our best to say what the state should not do. We could enumerate those specific liberties we could articulate and agree upon as words and meanings we share.

We could do our best to retain what liberties we did not specifically articulate and agree upon in words calling for specific protection.

Within that realm we gave our government power to regulate commerce, surely commerce needed that, and such power necessary and proper to accomplish that. But still the state appears a fearsome beast when opposed to an individual citizen. It is at that point that we as jury can hold the state in check. We see the jury as little random samplings of WE the PEOPLE in response to the action of the state.

Imagine the state expanding into the space of freedom of individual liberty occupied by individuals. As state space expands it compresses liberty with law enforcementenforcement of law against citizens. Each individual criminal prosecution a point pressing out, each capable of being resisted if thought abusive by a jury of citizens, a sampling of WE to hold back the pinprick of prosecutorial progress expanding the of the state.

In the conceptual model of our constitution this relationship between citizen and state imagined as repeated process of citizen discourse and meaningful decision made within the smallest possible scope and narrowest focus of responsibility, of judging the guilt and hence the right to liberty of a fellow citizen who stands before them, embracing the state in responsible constraint. This was a lovely model. Our original understanding, with grosser actions of the state controllable in grosser ways by a variety of forms of democratic vote.

The crippling of the American jury can be traced through many threads, but one seems most central, race, slavery, an industry built upon it, the three fifths compromise of our national constitution, the development of commerce mort horwitz so well describes causing the earlier structure of our judiciary and of the lawyers who serve and are served by it from the republican beginnings so well described by bill nelson. The story is one of evolution from a time when judges were chosen for their probity without requirement of being a lawyer. The story of connection between the cotton growers of the south and textile manufactures of the north and the lawyers who served them and the judiciary that evolved from the legal professions growth on corporate service to become not the friend of the jury, no longer the conscious agent of we the people, but hostile to the idea our citizenry should understand the conception of our government in its most importand functions, and the importance of the word. Lawyers make their way by parsing words. It is a skill that can be used for good or evil.

Let me makes a case for words we have to parse. Verdict, speak truth, the general verdict as bedrock understanding of what jury is about.

United states v. Gaudin.

of the jury, speaks truth, truth that the jury has determined. Faith in the process of tiny samples of us, coming together, judging truth, doing justice, then disbanding, no opportunity for power to lobby.

Could I speak to everyone who has ever served on a jury. Could I speak to judges who have guided them.

blame the defense bar.

Mark howe’s story Chase’s impeachment At issue he is arging who decides. Who decides the meaning of the treaty. Who decides the meaning of the constitution. Is the meaning to be determined by the lawyers and judges or is it to be decided is it the essential design that in these singular instances of decision on the liberty of the individual citizen that the jury decides. This would mean that the state in moving forward with some intiative that intruded on a valued liberty would have to make its argument for the right to intrude well enough not only to convince other agents of the state, but convincing as well in the individual case to persuade a jury sampling of us. Think what a wonderful thing that would be for the vibrancy of our democracy. Could I create a focal point online for discussion of the orle of the American jury in our national story of identity. Could I reach out to those who have been jurors and interest them in participating. Suppose we call a conference October 30 2008. plan it the way fred would. Contact scalia and ask whether there is any date he could and would make.

I saw the connection with Noah Feldman on the question who decides the law. Does the individual decide it, or does the individual give that power to the state. Noah speaks about it in a context where the individual players are themselves states, the question whether our state should cede power to decide the law to the international meta state.

So take the revelations of mohammud, the heifer my example. To whom is mohammud speaking. If I choose he is speaking to me. I have not mohammud but his word. Who decides what the word of mohammud shall mean to me. Shall I leave it to the imam to give meaning to the word or shall I find mohammud’s meaning for my own. Who decides. who gives and takes authority to decide, if I choose.

Shall we give up the power to decide what is the law. Shall we turn it over to bodies elected from us which are then schmoozed with lobby money so that power can express itself in law, interpreted authoritatively for us by judges who are largely the product of a legal system serving corporate power interests. Or shall we retain for ourselves in the form of juries selected randomly from among us

There is simply no way to rationalize the enthusiasm for the American jury with its currently transformed role to factfinder for the state. The most fundamental transformation in American law was the transformation of the jury from constraint on government to government lackey.

People get race and jury backwards still reeling from the injustice of all white juries. How we cringed from the injustice

How did this happen. We start with an issue on which white people in power are in agreement that white people should be in power over oppressed black people. Then we allow the state to operate with a jury against the oppressed population with juries made up with oppressors.

Legal equality in the civil war amendments, reconstruction and reimposition of inequality through the agency of the state instantiated in law enforced by all white state through all white juries, all the way to swain. And when the oppressed population fights its way through legal legislative process achieving inclusion on juries, now the oppressors back up the to arguments that juries should have no power except to fact-find for the state. Jurors can be told of nothing else without risk of contempt of court.

Face your fear, trust our most fundamental democratic American process. Speak to the part of the judiciary, the heart of the true judge, show them a method for unwinding, for going forward step by step. Support justice o’connors civic education site.

Major transformation in American law in the sense of law as the process by which law expresses itsel, and conceptually in the source of law, the ultimate source of law. I say the key idea of democracy is that the ultimate source of law is in each one of us, a source to which we should be charged to look to in judging the defendant’s guilt.

Scalia in gaudin pins scarf as pure questions of law, One can see in this argument where the element of justice comes in in reviewing the prosecutorial discretion

We agree the prosecutor has a much wider range of possible prosecution and the prosecutor actually undertakes, so a range of prosecutorial discretion. It is the jury function to review this discretion. It is otherwise unreviewable except for the wide standard of abuse or discrimination. Implemented as review of prosecutorial discretion there need be no conflict with the court on pure matters of law.

From the viewpoint of a framer suddenly confronted by overwhelming authority of the state, all against you, judges, legislators, executive administration. What should be the limitation on the scope of justice an individual can claim in argument for his liberty to a jury of his peers. What claim of justice should be foreclosed to him. Is it only that he has violated the letter of the law of the state that you are to judge. Is it the letter of the state this not yet created entitiy, this thing we will here constitute ourselves, this beast of government we all fear even in our need for it? Speak to the juror, speak to fellow citizen. The net provides a new environment for law in which we the people, descendants in spirit of those who constituted America and did their best to forge it in a form that would carry the spirit of America into the future. The net, the integrated media environment it connects, allows we the people to gather our collective consciousness.

integrating juries eliminates the power of the state to use the jury to vindicate its prosecutions or to collaborate with it in false acquittals. both are perversions of jury function by the state to permit the state to use law to oppress the unrepresented population

is there any lesser power citizens could retain than that of judging the right in justice to liberty of an individual citizen

the power to acquit is the power to keep the oppressor off it is not a power to use the states power against a person

i need to make some slides 1. the idea of the conscience of the community imagined as if all were equal in fact, like rawls room

2. evenly distributed disharmony, in which majority rule would evenly prevail

3. uneven distribution

4.

bill nelson notes saul cornell, sujh thomas, nancy king the draft, tax enforcement, mass is clear, the arguments are the anti originalist arguments that a central state simply cannot function if juries are aware and exercise their powers of nullification,

the anti-originalist argument is one of necessity: if you don't repress jury power a centralized state will not be able to collect tax and wage war; if so, why not amend to that limited effect; why try to repress the power in all kinds of cases

the idea of translation, the critiques of static originalism, both come out to the same place with juries. how to incorporate constitution with change. if the subjection of jury to judicial control, departing from original understanding, was warranted somehow by the necessities imposed by change, then the advent of the net has changed back. exclusion of the folk the law wishes to oppress from the process of the law; now on a path of whether a norm of obedience to copyright law can be taught to a new population of digital natives before they grow to majority and can be forced to a new understanding. this is the idea with mj, which in the sixties one would have thought would intrude its sensibility into jury process. three categories of people, those who fully support the law; those who disagree with the law but agree that if it is the law they are willing to enforce; people who disagree with the law and will not be party to enforcing it;

our original understanding provided a procedural framework for accommodating change through "republican" process

Professor Amar begins his "careful study" of the Constitution at the beginning - with the Preamble. 13 With its opening words, "We the People," he reminds us that the framers "gave the world more democracy [*291] than the planet had thus far witnessed." 14 It expressed their profoundly democratic vision and "exerted gravitational pull over all that followed, both in the text and over time." 15 Thus, he argues, the Preamble's first three words are echoed in the text of all seven of the Constitution's main articles:

Article I promised that all members of the new House of Representatives would be elected directly "by the People." No constitutional property qualifications would limit eligibility to vote for or serve in Congress; nor could Congress add any qualifications by statute. Also, Article I prohibited both state and federal governments from creating hereditary government positions via titles of nobility. Under Articles II and III, the presidency and federal judgeships would be open to men of merit regardless of wealth or lineage. Government servants in all three branches would receive government salaries, lest the right to hold office or public trust be restricted to the independently wealthy. Military hierarchies would answer to democratically elected leaders, not vice versa. Juries of ordinary people would counterbalance professional judges in the judicial branch, as militias of ordinary people would check professional armies in the executive branch. Article IV guaranteed every state a "Republican Form of Government" - that is, a government ultimately derived from the people, as opposed to an aristocracy or monarchy ... . If ordinary legislatures clogged necessary reforms, Article V enabled Americans to bypass these legislatures with specially elected conventions to propose and ratify new constitutional rules. Article VI banned Old World religious hierarchies from formally entrenching themselves in the federal government or excluding adherents of competitor religions from federal service. Finally, Article VII specified how the Preamble's ordainment and establishment would take place. 16