Kevin Gutzman – The Constitution Didn’t Create Trial By Jury

Mandeville, LA – Exclusive Transcript – With us today, Professor Dr. Kevin Gutzman, author of James Madison and the Making of America and The Politically Incorrect Guide to the Constitution.  Another question before we have to part company today that continues to arise here and I find myself dealing with on almost a daily basis.  Try as I might to plumb the depths of this question and convince those that are listening to my answers that I have been honest and forthright in my due diligence and exploration is the use of the Fourth and Fifth Amendments.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  With us today, Professor Dr. Kevin Gutzman, author of James Madison and the Making of America and The Politically Incorrect Guide to the Constitution.  Another question before we have to part company today that continues to arise here and I find myself dealing with on almost a daily basis.  Try as I might to plumb the depths of this question and convince those that are listening to my answers that I have been honest and forthright in my due diligence and exploration is the use of the Fourth and Fifth Amendments.

The thing that I will most often hear is [mocking] “You and your buddies, you always talk about this, Amendments Four and Five, and you’re always haranguing about how of the first ten amendments eight amendments only apply to the federal government and they don’t apply to the states.  Explain then to the rest of us why we have nationwide or republic-wide use of trial by jury.  That’s in the amendments!”  Of course, during the ratification process, Patrick Henry and Joshua Atherton and George Clinton and Elbridge Gerry and Samuel Adams and name your real republican or federalist, not fake federalist, were all concerned about privileges and immunities and trial by jury and civil trials and all that.  If you were to receive that question, how would you respond?

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Kevin Gutzman:  I can understand why people say that, because we have a constant drumbeat of propaganda saying we get all our rights from the U.S. Constitution.  Of course, before there was a U.S Constitution, Americans were free people.  One way in which they were free was they had the right to trial by jury.  They had the right to trial by jury either under state constitutions that had been created during the revolutionary era or, in the cases of Rhode Island and Connecticut, under charters they had been living under for over a century by the time the revolution started.  All of these constitutions and charters incorporated the common law, which we were talking about before.  Common law included a right to trial by jury.

This is one of the rights on which the Americans were insisting in the argument with the British before the Declaration of Independence.  The British, after the Seven Years’ War, which ended in 1763, decided they wanted to tax the colonists.  Then when they found they were having a hard time enforcing their tax laws, they started finding various ways to limit their right to trial by jury, because they wanted to make it easier to convict people who were violating these tax laws.  The American colonists said: We have the right to no taxation without representation and we also have the right to trial by jury.  You find that in the declaration of the Stamp Act Congress in 1765.  You find that in Patrick Henry’s resolutions against the Stamp Act in 1765.  You find this in the Declaration of Independence itself.  Americans are insisting we have the right to trial by jury.

Even if there had never been a U.S. Constitution, people who live in Connecticut or Georgia or New York State would have had the right to trial by jury, just because they always had before.  There never came a time when they decided trial by jury is a really bad thing.  It wasn’t only anti-federalists, by the way, who were worried about trial by jury.  One reason that Governor Randolph in Virginia was a tepid kind of federalist is because he was concerned about the right to trial by jury, too.  In fact, he explained in the Virginia Ratification Convention that the federal government would have to respect the right to trial by jury and that included “all of its incidents,” that is all elements of the traditional right, which included among other things the right to arbitrary strikes of people from the jury pool, right to have a jury consist of twelve people and so on.  Of course, these are elements of the right to trial by jury that federal courts have taken away from us in the federal government and said were not essential in state governments either.

For example, in Florida now it’s very common – everybody noticed, I think, that the Zimmerman jury reflected this trend.  In Florida it’s very common for people, even when they’re being tried for significant crimes, to have only six-man juries.  That is inconsistent with common law right but it’s not unconstitutional.  The elements of the right to trial by jury are under states’ control when it comes to the way courts respect this right.

The error that your listeners are making when they talk about this or ask this question is in thinking, when they talk about this or ask this question, is in thinking that Americans didn’t have any rights before the federal government came along and then the federal government created all these rights.  I have a great idea, how about we create juries and have twelve people and let people on the defense side strike people from the jury pool.  No, these are all rights that were hundreds of years old by the time the U.S. government was created.

Mike:  Fantastic explanation, thank you very much.

End Mike Church Show Transcript

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