In Part One, I described the historical context for the absolute power of a jury to acquit an accused. Part Two will illustrate the structure of the Federal criminal justice system that facilitates that power.
First, the basics. A limited form of government is one that only has the power which is given to it by those governed. Our Federal government exists only by virtue of having been created by the United States Constitution, and is thus limited to those powers expressly granted it by that document, and the laws properly enacted under it’s auspices.
Conversely, the antithesis of limited government exists under an absolute monarchy. The monarch has unlimited power. The Russian Czar, for instance, or the Caesars in Rome. A constitutional monarchy (such as in England) is one in which the monarch’s powers have been limited in some way, but still retains all power not expressly limited.
In other words, absolute government starts off with total power to do anything, and is restrained only by a constitution or law taking away a specific power. Compare that to our limited system, where the government starts out with no power whatsoever, in fact it doesn’t even exist. It comes into existence, and acquires only those powers expressly granted to it, with the consent of those governed.
We the People
The Constitution
Legislature : Executive : Judicial
We the People (the jury)
The Accused Citizen
As you can see from the rudimentary chart above, our Federal government was created by the citizenry when the States ratified the Constitution. That’s why the first words in the Constitution are We the People… followed in the Preamble by the rationale for creating the government.
So We the People, have ultimate power over the Constitution, and all that exists under it.
The Constitution creates the three operational branches of the government – the Legislature, the Executive, and the Judiciary – and enumerates the power, and limitations, on each. So the government is limited by the Constitution, which is in turn limited by We the People. The People’s power is limited only by “natural law” and the “social contract”.
The role of the Legislature is to reflect public policy preferences of We the People, by enacting general laws (or refrain from doing so). By general laws I mean laws that we are all bound to adhere to – including statutes declaring certain acts to be crimes.
The Executive enforces the laws enacted by the legislature. As that relates to crimes, it enforces the general laws against specific individuals who have committed criminal acts.
While the Legislature has the exclusive power to enact a criminal law, the Executive has the exclusive discretion whether to charge a citizen with violating that law. That is the ‘separation of powers’ which, in theory at least, restrains tyrannical government.
Finally, the Judicial branch serves two functions. First, it provides an independent forum for citizens who are accused of crimes by the Executive to have the accusation judged according to rules of evidence and procedure that have evolved over time to assure the fairness of the trial. Second, the Judge assures those rules are followed – meaning according to “due process of law”.
To prevent judicial abuse like occurred in the Penn trial (which was still a relatively recent enough event in the thinking of our founders), federal judges once appointed by the President (executive) and confirmed by the Senate (legislative) have life tenure. They can’t be removed from office for refusing to be mere facilitators of the government’s prosecutorial authority.
However, even though independent of the other branches, a judge is still an official of the government. This is where the jury pardon comes into the process.
Since Magna Carta the decision about whether a citizen is guilty of having committed a crime is not made by the government, but by a jury. The right to a jury trial is so fundamental to our concept of justice that it is expressly guaranteed by three separate provisions in the Constitution Article III, Section 2 , as well as Amendments VI and VII of the Bill of Rights. No other right is mentioned three times. The jury is drawn from, and represents, We the People.
So the ultimate decision about whether a citizen has committed a crime is not made by any branch of the government at all. Ultimate power is expressly retained by We the People — who stand between the government, and the accused citizen.
The power of the government is limited to declaring what a crime is in general (legislature); deciding if a specific individual should be accused of committing a specific crime (executive); and providing a forum in which it can be determined if that individual is guilty of committing the crime (judiciary). But only We the People have the power to make that determination.
If We determine the individual is not guilty, the government has no power whatsoever to alter or overrule that determination — as the Judge in William Penn’s case was reminded of by the People of London. (see Part One). The government has no authority, or ability, to appeal an acquittal by a jury.
Next, we’ll look at the difference between “rights” and your “power” — and how you can use your power (in a way the government doesn’t want you to know about) to stop it from abusing its limited authority.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.