It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [113]
Even if a legislative command is passed according to all of the procedural protections discussed above, how must the government go about depriving people of their liberty? Can the government extort twenty billion dollars from BP merely by demanding and threatening (as was done) or by passing a law which satisfies Professor Fuller’s eight requirements (as was not done)? Sadly, the Supreme Court has oftentimes taken the stance that the act of passing a law itself satisfies the requirement of due process. This view, however, entirely disregards the other “half ” of due process: Fair hearings in neutral courts, preceded by ample notice of litigation and an opportunity to appeal. This is procedural due process. The government can under no circumstances deprive one of life, liberty, or property without litigating it in courts; in essence, the government, like any other entity or individual, must persuade a jury that BP has violated the law, and that for whatever reason, the federal government itself is entitled to compensatory damages in the amount of twenty billion dollars. Without access to courts and fair hearings, then the propriety of a government action is entirely in the opinion of the very government that took it. It therefore violates James Madison’s famous truism that “no man is allowed to be a judge in his own cause” and subjects us all to the tyranny of the majority.
In order to ensure that one is deprived of liberty only when genuinely warranted, that deprivation must take place in a neutral court and possess the following elements: Notice, hearing, fairness, and a right of appeal. These elements are as old as our legal culture. As has been proven over time, each is essential before a deprivation of liberty can be considered proper. For example, could the government commence a lawsuit against you without first notifying you, and then collect a default judgment after you fail to defend yourself in court? Clearly not; there is a requirement that interested parties receive adequate notice. Moreover, the right of appeal plays a crucial role by ensuring that judgments are in fact correct, and that a litigant was not the victim of a judge’s improvident behavior.
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Like the above requirements, juries have ancient roots in our legal system. When the Magna Carta proclaimed in 1215 that “no freeman shall be hurt in either his person or property, unless by the lawful judgment of his peers, or by law of the land,” it thus guaranteed a right to have convictions determined by juries. Blackstone adamantly praised the role of the jury in securing justice: He contended that they served as a crucial restraint on improvident judges. This is so for two reasons. First, without a jury, litigants could be at the mercy of a corrupt or prejudiced judge. Similar to the problem with vague statutes described above, a judge could determine guilt for nearly any reason he wished, regardless of actual guilt or innocence. Second, judges possess a bias by virtue of being appointed by some machinery in the government or elected by voters for partisan reasons, which is mitigated by the presence of a jury comprised of the people themselves. In essence, without a jury there could be no such thing as separation of powers, and the government would be, in the words of James Madison, “a judge in its own cause.”
To illustrate the crucial role that juries play in our legal system by ensuring that deprivations of liberty only occur when warranted, imagine how the John Peter Zenger trial would have come out differently, if he did not have a jury trial. As noted above, the judges were appointed by the very same governor who had charged Zenger with the crime of seditious libel. Interestingly, Zenger’s initial attorneys were disbarred after they challenged the judges for their loyalty to the governor. Consider the Chief Justice’s instructions to the jury, issued before