I mentioned the basic topic in my last but one blog. But only in the form of a throwaway line as one of the defining points of a democracy.
The beauty of the revolutionary step I am about to outline is that it will be relatively simple to implement. It doesn't require any major change to the political or economic infrastructure. Yet it will take us about 50% of the way towards a truly democratic system in a single step.
It doesn't even need a new political party. And, while it would be nice - and much easier - if we could win the support of the existing political parties, their opposition need not prevent us implementing the change. Some of the existing parties will support us from the start and we can harness their expertise and organisation to roll the movement forward.
Best of all, it doesn't require any particular political point of view other than support for the concept of democracy. So a wide range of voters and activists will like the idea, even if their leaders don't.
The big idea?
Put final control of the Law formally into the hands of "We The People", through constitutional enhancement of the Jury's function and status.
In short, why waste our time and resources trying to change or prevent the illegitimate laws being passed by authoritarian governments around the world? Let them pass whatever laws they like. Just make sure that the Jury has the final word on whether or not any given law is applied in court (and, if so, how).
This requires three changes to the judicial system and/or constitution.
1. Take the power in the courtroom out of the hands of judges and put the Jury in charge.
2. Give defendant's the right to request that a Jury dismiss their case because the law is wrong in principle or at least inappropriate in their case.
3. In the event that a defendant succeeds in such a challenge, allow a referendum to decide whether to retain or reject the relevant law.
How, you ask, is this the shortcut to democracy?
The detailed version will be in "Reasons To Be Cheerful - Part 3" of Chapter 10. But here's the outline:
What does it mean to put the Jury in charge?
The first objective is to emphasise what the political class, around the world, has clearly either forgotten or ignored. The State, in so far as it is necessary at all, is supposed to be the Servant of the People, not its Master.
For which reason, the first obvious sign of change, will be of immense symbolic significance. The court will no longer rise whenever the presiding judge enters or leaves the courtroom. That honour and respect will transfer to the Jury. So that everyone is reminded that the court represents We The People, NOT the State.
Judges will retain their presiding role and continue to act as referee between the opposing sides. They will still even be entitled to make judicial rulings. However, the second result of the new rules would be that either side could challenge a Judge's ruling on any point by direct appeal to the Jury.
The Jury would first decide whether to hear the appeal and, if so, would allow all three parties (Defence, Prosecution and Judge) to defend their position before deciding whether or not to grant the appeal. It could request expert witnesses if it felt the need and instruct advocates to speak on its behalf.
The Jury could also make rulings to deter time wasting. Thus if a defendant or his legal representative appears to be making frivolous challenges the Jury can threaten - for instance - to refuse any number of future challenges (in that case) even if well founded.
So most cases will proceed in much the same way as they do today. The differences will only show up where either the law doesn't already command consensus or the law is clearly being abused. In such cases, the effect will be dramatic.
Consider, for example, the prosecution of a Librarian under the Patriot Act. Her crime: revealing, to a borrower, that the FBI had requested his reading list. Most Americans would probably think such a prosecution barbaric and unacceptable. Nevertheless, the way the judicial system works today, assuming that she did in fact spill the beans and can be shown, beyond reasonable doubt, to have done so, the Jury will be required to find her guilty as charged because she has undoubtedly broken the "law of the land".
This scenario is only plausible because the court system is under control of the State and not The People.
Ironically, even today's Jury could, in fact, throw out such a case without any change in the rules. The chief reason that we need to change to rules anyway is to overcome the reasons why hardly any jurors are aware of their democratic "power of veto".
The power I refer to is technically known by the ugly mouthful: Jury Nullification. I've written about it elsewhere as a strategy for ending the civil war popularly known as the war on drugs.
No one has ever opposed that suggestion but they have pointed out that, though I'm technically correct, the State reserves such enormous powers to itself that it can effectively block Jury Nullification in three ways.
1 It suppresses discussion. It ensures that no mention of the power is part of any school curriculum or courses on the American Constitution. Through indirect means, it also ensures that our friends in the media don't spread the word.
2 They have forbidden any mention of it in court. If a defendant tries to inform the Jury of its powers, the Judge can dismiss the Jury and even declare a mistrial.
3 Judges have given themselves the authority to reject or dismiss any Juror who (stupidly) indicates that they are aware of Jury Nullification OR owns up to disagreeing with the relevant law under which a particular case is being prosecuted. For example, in order to convict Edward Rosenthal in 2002, they had to go through 80 potential jurors before they could find 12 who did not admit that they would refuse to convict because they disapproved of the ban on medical marijuana which had recently been made legal under Rosenthal's State Law by a democratic majority of 78%. (The judge also prohibited any mention of Rosenthal's arguments for breaking the law - viz the requirement for medication. Even the 12 tame jurors, when they learned, after they convicted him, that he had been a medical user, were appalled by the revelation and half apologised publicly for their conviction - "the conscience of the community had been stifled".)
These techniques have ensured that despite over 300 years of Jury Nullification, only a tiny percentage of citizens are even aware of its existence. The State has, to date, made a damn good job of ensuring that all the real power remains in its hands.
This proposal will eliminate that democratic deficit in a single blow.
"The role of our jurors is to protect private citizens from dangerous government laws and actions. Many existing laws erode and deny the rights of the people. Jurors protect against tyranny by refusing to convict harmless people."
That is a quote from the Fully Informed Jury Association Home Page. Check it out. In doing so, you'll be taking the first essential step. You'll be making yourself a fully informed potential Juror.
Step Two requires us to pass new laws. In the USA, that probably means you'll need a new amendment to your Constitution. The 28th Amendment - "Legal Supremacy of the Jury"
That is going to be much harder than making yourself an informed Juror. We've got to persuade the majority of voters to back us. But, given that this is a non partisan proposal, we should be able to attract the true democrats from across the political spectrum. Usefully, we will also expose those who, for one reason or another, don't believe democracy is such a good idea.
Step Three is really the result of the success of step two and might logically form part of the same legal changes. It is the requirement to set up the procedure for referenda following successful appeals to the Jury.
Any successful appeal would result in acquittal for the defendant in the particular case, but over and above that, the Jury would have three very simple powers in this context.
1 It could decide that although the law was generally valid, it should not have been used in this case. The case would be dismissed without any consequences for the statute itself.
2 The Jury's intermediate option would be to decide that the case exposed a fundamental weakness or injustice in either the letter of the law, or the manner in which it was implemented. They could require revisions either to content of the law, or the guidelines on implementation, to eliminate the exposed problem.
3 The Jury's nuclear option would be a declaration that the law is wholly without merit and should be scrapped.
In the first case, the decision of the Jury is final and the matter ends with that decision. (Subject to the usual rights of appeal - which implies a case for a higher level jury but that can wait for the second stage in the "revolution"!)
The second and third cases have considerable implications politically, financially and, perhaps, even strategically.
Hence the next step requires the Jury to justify its own recommendation to at least three other Arbitrating Juries assembled for the purpose. The Judge who presided at the original case would have the right to make the case for the status quo, or not as he chooses. The challenging Jury would have the assistance of expert advocates of their choice and the arbitrating Juries could request any witnesses they thought fit and to appoint advocates to put their questions. This would include powers to sub poena relevant politicians to explain their intentions in regard to the law.
The arbitrating juries do not mix with each other and must reach their own decisions independently. A majority of each jury must agree, however, before the original Jury's recommendation becomes a formal instruction.
In the case of instruction to revise, the existing legislature is required to revise the law or its implementation in accordance with the Jury's verdict. They can take as long as they like about it because from that same moment, the prosecuting authorities are forbidden to prosecute any further case under similar conditions to those in the case which has just been dismissed.
For example, if the Jury has just decided that the Librarian's case should be dismissed because no Law should be that repressive, it may, nevertheless not wish to challenge the whole Patriot Act, a) because only a tiny aspect of it is relevant to this case and b) they might even approve of other parts of the act. So the instruction could be limited specifically to removing the authoritarian block on telling citizens that the FBI is spying on them.
It is possible that the Senate, Congress and President never manage to agree the necessary revision. It doesn't matter because the Jury's decision has the authority of legal precedent and prevents the prosecution of similar cases.
Similarly, in the case of instruction to revoke a law, with immediate effect, no further prosecutions are permitted under that law, until or unless the revocation referendum has been held and the people have voted to RETAIN the relevant law. So, again, it is in the interests of those who think the law is popular and necessary to organise a referendum at the earliest opportunity. (Oh, and, in the event of a dispute about the wording of the referendum, the arbitration juries have the final word)
That'll do for now.
Stew on that. Consider how quickly we could end the routine abuse of authority by any government which had to operate under these new rules. And we wouldn't even have to elect a different government!
Obviously it wouldn't cure everything. It wouldn't, for example, be enough to prevent Presidents or Prime Ministers going to war. But it would be enough, for example, to prevent governments suppressing dissent and opposition by prosecuting opponents for breaches of illegitimate laws designed to prevent such opposition.
I think a lot of this depends on the assumption that the people will automatically choose what's best. Mob rule always pushes asside the interest of minorities so we know this isn't true.
Many of the laws are put in place for non-trivial reasons and it can take years of indepth study to fully appreciate them. For example, the establishment clause of the constitution draws a line between church and state. It's a matter of debate where that line is actually drawn, but letting a jury decide that the 10 commandments should be allowed on public property says more about their own aesthics and biases than it does what makes good policy, particularly when you need to consider the interests of minority groups.
People with unpopular ideas might soon find their first ammendment rights in jeopardy. Suggesting uncomfortable ideas is vital to the advancement of science, but if too many people feel that they "like freedom of speech, but there should be limits because this idea is dangerous" then say bye-bye to freedom of speech.
To get the democracy you want, there should be more local autonomy. It's absolutely ridiculous how far congress has stretched the commerce clause, for example. If each state had more say in what laws they want to enforce then you'll find a happier state where their own personal interests are better met. That would mean legal drugs in California, and perhaps legal polygamy in Utah.
Anyway, on the other side of this, imagine your plan was put into place and the *best* of all possible results came about. How different would that really be than what we have today? Already judges go where the people go as our culture changes. I always assume we'll get the worst we can get, and thus think of policy in terms of its worst implementation. The worst implementation of jury rule is just too scary for me.
Excellent stuff Mac.
I completely disagree with (almost) every word you've said, but its going to take me a while to put together the response that comment deserves.
Just one thing you might want to consider.
Think about the mechanism I am describing. A Jury only controls the outcome of a single case. If that result is a particularly "perverse" challenge to the existing statute, then it will probably fail to convince even the arbitration juries. And if it does get beyond them, then the debate goes nationwide and they have to convince the entire electorate. Everyone gets their say.
What you have to justify, is the elitist position of arguing that - given such a process - regardless of this or that being the popular view, "We" know better than all of you and "We" are not going to allow it.
I can tell you straight. I do not and will not concede that ANYONE has the legitimate authority to make that decision in defiance of the majority view.
A little elitism, or, as I like to call it, representational-ism, can be necessary. Just look at what some people choose to do for their own personal finances: they hire someone else or have a family member make all investment decisions for them.
When a budget is passed, I'd rather it be done by a small group of elected representatives that gets passed for approval or veto by another elected representative. The people at large do not need to be concerned with every budget detail.
To be fair and practical, the law must be consistent. Judges likely would do a better job or interpreting the law as it is written than a jury would. When it comes time for a reversal of laws the people *do* rise up and change happens. I'm not sure what would be gained at all, except more strange edge cases and a loss of efficiency (engineering efficiency, though perhaps economic as well :-).
Does that mean you disagree about what I think of the overstretching of the commerce clause?
Macneil, aren't you stretching things a bit. The idea was concerning cases heard by juries. Last I checked budgets aren't run by juries, only criminal and civil law suits are.
How exactly do you think a civil or criminal trial's jury would abuse this system. The power of nullification is already available technically, and it is practiced by accident sometimes. People would simply be informed of it. Judges would have some checks and balances placed on them via the jury. That can't be a bad thing. And finally, in extreme cases, the jury could attempt to have the law changed. But that would be referred to another court. To change a law, would still require a strong majority unless someone managed to stack the associated juries.
As long as we usually get representative juries, this would be an improvement. Politicians already implement and keep in place bad law because of special interests and the game of politics. Perhaps it's time we give the people a chance to get a little more hands on with the legislative process by becoming another part of the system of checks and balances.
The budgets comment was a non-jury point. The point was that letting everyone decide everything is a bad idea.
Right, we need experts and representatives to help sort out processes we don't understand. There just needs to be more accountability among them.
Although, I think you can honestly break complex issues down into simple terms if you try hard enough.
Took me a while but part of the answer to Macneil's objections to mob rule is contained in my Democratic Cannibals blog. The rest is part of the remaining parts of Chapter 7 which I'm still writing.
Post a Comment