What is libertarianism’s best strategy to gain a legitimate amount of power nationally (and then happily cede it to the people)? Libertarians of the small-l and big-L varieties have sought to gain power by either co-opting one of the major political parties (See; Ron Paul Revolution that the GOP squashed) or by finding candidates to run as a Libertarian that appeal to establishment voters (see: Aleppo). But I believe there is a third, and overlooked, option: get a candidate who does some libertarian things that irritate the major parties and the deep state apparatus, and allow those actions to result in political hysterics from ultra-partisans while average Americans see no net loss from the actions and in many cases a serious net gain. I believe this will continue to set in motion a series of events where the government can be shrunk to a level that’s at least tolerable to minarchists and other run-of-the-mill libertarians.
How libertarian is President Donald Trump?
The answer is: not very. I think that’s been established. The man swam in a pool of cronyism sharks his entire professional life. He, through desire or necessity, has been a rent-seeker. He has used eminent domain to further his projects. He has sought special treatment from political entities both domestic and foreign to further his interests. The man is no altruist. But does that make him distasteful, or does it make the system in which he operated distasteful? Personally, I will rarely fault someone for utilizing the same processes his competition would use, so long as it does not originate from a position of government authority. And Trump never held office before his inauguration. In other words, he never utilized political office for financial gain by, say, orchestrating government access to foreign actors that overwhelmingly donated to your personal foundation or for trade groups and banks that hired your unqualified husband to give speeches at ridiculously over-inflated fees. In other words, I don’t hate the player, I hate the game.
And yes, Trump is allowing Jeff Sessions to wage the drug war, which is a sticking point to a lot of libertarian minds. But I ask you, is it better to wage a drug war and uphold the concepts of equal protection and the rule of law (while allowing Congress to do their job and vote to legalize drugs the right way)? Or is it better to arbitrarily enforce duly enacted laws based on the geography of a person and/or their willingness to bend a knee to the state and support legalization with a ton of unlibertarian strings attached?
The sadder these people are, the happier I get.
Some policy positives already achieved and in the works:
So now we come to Donald Trump’s libertarianism or lack thereof. The man, no doubt, will continue some of our military adventurism overseas. But he has already stopped our policy of running guns to terrorists and terrorist-sympathizers in Libya and Syria after the previous admin established those programs and destabilized an entire region, while thoroughly destroying the likelihood that a rogue regime would abandon its weapons programs and try to re-enter the international community (read: we came, we saw, he died). There has been no resurrection of the programs nthe last two administrations ran to ship guns into Mexico through the drug cartels, for different motives yet still in gross violation of Mexican sovereignty. And perhaps he will continue to not carry out targeted assassinations of American citizens that have never been charged with a crime, which the prior admin was all too happy to do in gross violation of the Fourth Amendment. Furthermore, he has already started to roll back our country’s association with liberty-robbing agreements like the Paris Climate Accord and the Trans-Pacific Partnership. Both of those agreements undercut the ability for American companies and consumers to freely negotiate what they were willing to exchange goods and services for. Removing our name from them is a step in the right direction, especially if it’s followed up with free trade agreements that haven’t existed in a century or more. That action is yet to be seen, but at least someone had the audacity to upset the globalist apple cart and stop a little bit of the insanity those agreements put us further along the path to.
Get us out of this circus, please!
As for civil liberties, Trump is still an unknown quantity. His statement about “roughing up” suspects is problematic to say the least. And I can only hope it was hollow bluster. But even so, it sets a very poor example and he should correct it immediately. Now, having said that, he has not furthered Obama’s policy of killing Americans without due process, but that’s not going to be enough. His willingness to stop going after businesses that exercise what should be a fundamental right to free association looks good so far. As do his overtures to Second Amendment causes. As does his willingness to tackle Affirmative Action and Title IX insanity. Holy crap, I just realized he’s been the best president on civil liberties we’ve had in recent memory. People that overlook the substance of these actions due to his boorishness need to reassess what their priorities are, in my opinion.
Furthermore, our business climate has benefited greatly from having an outsider installed as the head of the regulatory apparatus. Trump has already vowed, and started to carry out, a dismantling of the bureaucracies that stifle economic growth and freedom for Americans. From the onerous EPA regulations to CAFE standards being rolled back or passed to the states, there has been a serious uptick in confidence from the business and manufacturing sectors that Trump will get the government out of the way of prosperity. The hilarious irony there is that Trump was a crony his entire life, as I mentioned earlier. But perhaps he had no choice but to play the game the only way that could lead to success: do what the government tells you and push others out. Now, when given the reins, he seems to be more than willing to eliminate programs that he personally benefited from but that create barriers to entry for others. Yes, he could have opposed the system while benefiting from it. But let’s not pretend he’s some awful hypocrite because he played the hand he was dealt. Business “leaders” like Elon Musk, Mark Bezos, Mark Zuckerberg, Bill Gates, etc, etc, etc have done the same thing and so did their forefathers like Ford, Carnegie, Mellon, and others on back through the ages as long as there was a government agent with a hand in their pocket. So I’m willing to forgive that.
Be happy for this.
And lastly, he put what appears to be a strict constructionist on the Supreme Court in Neil Gorsuch. That is a marked improvement on any names mentioned by establishment candidates on either side of the aisle during the last campaign.
The other intangible positive results of a Trump presidency:
Another thing libertarians have always sought is a diminished reverence for elected officials and other “public servants” whose goals are often at odds with those of the people. Trump’s mere presence has caused probably 2/3 of the political spectrum to demand the reverence for the office be scaled back. They are now calling for more power in the hands of the states or localities and even ::gasp:: the people, on occasion. These are people that have been statists to the core. They are the Big Government democrats and NeoCon statist Republicans. And they are finally unified in an effort to diminish the role of the Executive Branch. This serves to re-establish the separation of powers that has become all-too-muddy with much of the congressional responsibilities being passed to Executive Branch agencies in an attempt to deflect responsibility and ensure easy reelection for entrenched politicians. The more responsibility that is pushed back into the laps of our directly elected officials and down to the state or local level, the better for us. It helps us create a more diverse political environment where “laboratories of democracy” are able to compete for ideas and human investment, rather than an all-powerful centralized state controlling everything. And one need look no further than minimum wage laws (since we have them, I’ll address it) to realize a top-down approach where the minimum wage “needed” in New York is imposed on small towns in New Mexico or Wyoming, where the cost of living doesn’t even come close, is a horrific idea. The Trump era is returning us to an ideal the founders embraced in that respect.
And he is returning us to another ideal the founders cherished: temporary service from business-people and non-careerist politicians. The flood of people on Trump’s coattails from all sides of the political spectrum is refreshing. Sure, many are moneyed and or celebrity candidacies. But so what? Its a step in the right direction any time we start to end political dynasties and careerists that sit in the Senate for 30 years as they grow further and further out of touch from average Americans. More turnover from political novices has a much better potential upside of shrinking our government than does further entrenching those who have pushed us to near financial ruin and reduced individual liberty.
Pucker up!
The net result so far (in my opinion):
So let us all embrace the non-libertarian president. For one of these reasons or for another I might have missed. But embrace it nonetheless, because it has already borne libertarian fruit, and I suspect it will continue to do so for many of the right and some of the wrong reasons. Its the best we could have hoped for and probably the most libertarian moment in America for a hundred years.
I’ve been doing my part. And there are a few of you about which I can say the same. But, obviously, many of you are falling down on the job here. And I think you know who you are.
Alright, so I just saw the new Spiderman the other day. I’m mixed on my thoughts. On one hand, I want to praise it for giving us the first decently done villain since Loki all the way back in the original Thor. We get some quick backstory on him at the start and it gives him a decent reason why he turns into a criminal. It was also nice to not get yet another origin story on Peter Parker. He was already bitten by a spider, and there was no sign of any Uncle Ben, so presumably he’s already dead. It was also nice to see that Peter has his own lame homemade Spiderman costume and only can get the nice fancy suit from the resources available through Tony Stark, rather than somehow being able to make such a nice fancy suit himself like the previous Spiderman movies. Also liked that he had to create the webbing himself, rather than it being a power given by the spider. Never was a comic book reader, but I know that’s how it was in the Spiderman cartoon which is what I grew up with, so that’s how it’s supposed to be as far as I’m concerned.
So, now to the stuff I didn’t like. I think they made him too young. I really think Marvel would’ve been better served having Peter be at the end of High School, beginning of College, like the Sam Raimi Spiderman did. There was a little too much focus on teenage angst and relationships with his fellow students for my taste. I also think Tony Stark should’ve taken the fancy Spiderman suit back sooner, so we would have to see the home made suit for more of the movie. Especially since Tony gives him back the fancy suit at the end of the movie, so this will likely be the only movie with him using his own suit.
Alright, to the real issue that bothered me. Really, Marvel? Please don’t tell me you’re going to start pushing your SJW crap into your movie universe. Do you really want to turn what’s been a cash cow for you into box office flops? So, what am I talking about? Well, there wasn’t a huge amount of the crap in the movie, fortunately, but there were a few standout issues. All of it that I can recall came from one particular character; Michelle. It starts with the scene when Peter’s group is gathering for a trip to Washington D.C. Michelle makes a comment about wanting to protest. Alright, just a one off, vague comment about protesting, but not what she wants to protest. Okay, fine. A bit later, we get to the group visiting the Washington Monument. Their group leader mentions not wanting to split the group and Michelle says how she doesn’t want to enter a structure built by slaves. Really? There were a couple other instances of social signaling by this specific character in other points of the movie too, if I recall correctly. Oh, and guess what we find out about the girl at the end of the movie? This is MJ. Yup, Parker’s future love interest is no longer a pale redhead like she always has been. Nope, now she’s a mixed race social signaling SJW.
So, I really wanted to love this movie. Growing up I regularly watched the Spiderman cartoon, it was one of my favorites. So I was kinda disappointed with this. It wasn’t bad, but it was slightly above average, really only because of an actual interesting villain. But I really hope this isn’t the start of Marvel trying to replicate the crap they’ve been doing in their comic books in recent years into their movie series. I’m interested in the upcoming Black Panther film, and, surprisingly, I’m interested in the new Thor. (I was surprised by that, given how rather boring I found Thor 1 & 2 to be). Hopefully this will be a one off deal, and not the start of a trend.
Here’s a proposal for a different way of representation to be determined by election, the so-called Fair Vote Act. Putting aside my pet peeve about that sort of naming (as well as ostentatiously “designed” logos and pleas for donation), there’s some interesting points here that I’d love to see argued over so we can get an honest idea of the pros and cons of this proposal. My own take so far is that I’m frankly not in favor of more “democracy” nor “making government work better.” But… anything with the potential to break the Mafia stronghold of Team Red and Team Blue (and their respective donors) has merits worth discussing.
One thing that stood out to me is the strong probability of total gridlock and ineffectiveness. But perhaps there’s a downside as well.
Yeah, I don’t have a whole lot to cover this week either. I still haven’t gotten to try my new gun (although with any luck I will have by the time you read this) so I can’t talk much about that, and nothing particularly noteworthy has popped up this week that I can devote a whole topic to, so I’ll be doing more firearms links. At least these one’s are actually worth talking about.
Okay, which one of you idea stealing fuckers set this website up? I thought we had a deal!
better than the last time there were German rifles walking around Paris.
I want to talk quickly about a serious topic for a bit. There have been some high profile cases lately in which police officers have shot suspects under less than justifiable conditions and ended up found not guilty after a trial. The two that most readily spring to mind are Philandro Castile and Terrence Crutcher. My personal opinion is that both of these shooting were not justifiable, and while they may not constitute outright murder I would not hesitate to label these as involuntary manslaughter. The thread tying these two cases together is that both of the victims were either high or at least regular drug users (Crutcher tested positive for PCP while Castile tested positive for THC). A very disturbing trend I have noticed on my gun blogs (which in general run on the conservative side) are that these people somehow deserved their fate because they were drug users and therefore criminals. I get very bent out of shape when I hear people suggest that using drugs somehow justifies being murdered by a police officer because you violated a minor traffic law. It’s particularly maddening when very pro gun people, nearly all of whom carry a concealed handgun everyday, justify Castile’s shooting on the basis of ‘well he’s a drug user then by definition he’s not a legal concealed license holder’. And yes I have heard these actual arguments out of gun owners. It’s really put me off from the usual gun blogs as of late. I don’t have an answer to these problems, but it really sobers you up on the reality of traditional conservatives opening up their views on drug decriminalization.
I have often snarked about the superiority of Rugby Union over the lesser forms of foreign sportsball. We have already had a look at Rugby League here… So in this exciting edition of Foreign Footy I will illustrate the majesty of Rugby Union. What could be better than 15 athletes trying to move a ball to the end of the field and touching it down to score (OK, they kick through posts too)?
How about when the other team is allowed to tackle you – and when you are tackled to the ground, you have to let go of the ball, and the action continues (a ruck).
No NFL 3-5 seconds of action and a halt for 45 seconds or more.
It just doesn’t stop – in this case, Welshmen never yield.
In fact, the only time the action stops is when the ball goes out of bounds, a penalty is called or there is a score. OK, at halftime and the game end too, pedants…
Oh – none of that blocking stuff allowed. No forward passes either. Run with it forward, kick it and chase it down or pass it sideways or backward to a teammate.
When the ball comes back into play, it is either the Line-out (a throw in that would make NBA players wince).
Here’s a story which is intended to convey a message, but (as is so often the case) perhaps a different one than that which was intended. And unusually, I don’t know what to think.
A summary: a fellow named Terry is a teacher in Florida. As with most teaching gigs, it’s a nine-month job. At the end of the academic year, Terry files for unemployment until the beginning of the next academic year. This year, Terry decided to take a vacation in the summer and head out to Colorado. Now, I can’t blame him for that, given that Florida is a pretty horrible place, especially in the summer. But… this caused him problems in getting his unemployment. Florida instructed him to file where he is, in Colorado. Colorado won’t help him because he works in Florida and instructed him to file there instead. Terry bounced back and forth between unresponsive agencies until finally contacting someone in the Florida governor’s office. The person they sent him to determined in seconds that, since Terry works in Florida and intended to return there after the summer vacation, he should indeed file there, and straightened out the whole situation is a few seconds.
The author of this article asks (in essence), “Why did this have to be escalated like this? Why couldn’t the bureaucrats have done this right in the first place?” and considers this a question of competence.
It doesn’t look that simple to me. Why is someone eligible for unemployment when they voluntarily work in a seasonal profession? Should their vacations be subsidized? Can they be said to be actively looking for work (a requirement for unemployment) in a state when they are physically several thousand miles away? Is unemployment in a circumstance like this (9 month academic years, characteristic of the profession) an entitlement since you and your employer are forced to pay into the fund?
And most importantly, why is the government involved in compulsory unemployment insurance on their terms in the first place? Is this a legitimate function of state governments and (ultimately) the feds?
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” – Fourteenth Amendment, U. S. Constitution
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger…” – Fifth Amendment, U. S. Constitution
We saw in Part One how, according to the Supreme Court, the Fourteenth Amendment doesn’t require the states to obey the grand-jury clause of the Fifth Amendment. Most of the Bill of Rights has been applied to the state – “incorporated” is the technical term – but not this part.
(In its incorporation cases, the Supreme Court likes to talk in terms of “due process,” but here’s Justice Clarence Thomas explaining how the Privileges and Immunities Clause is what we should be looking at.)
For the most part, when the U. S. Supreme Court exempts the states from part of the Bill of Rights, most states don’t take advantage of this. With some exceptions, the states chose on their own to obey the Bill of Rights, even when the Supremes wouldn’t hold them to it – state courts would sometimes interpret some rights differently than the federal courts, but they admitted the rights were applicable, if only as a matter of state law.
That’s not the case with the grand-jury clause. Here, the Supremes opened the door for the states to disobey this clause, and the states rushed through the open door.
Between the Civil War and the end of the First World War, many American states amended their constitutions so that suspects could go to trial for serious crimes without the approval of a grand jury (Michigan had started the ball rolling on the eve of the Civil War). This analysis summarizes the situation as of 2014. In most cases, grand juries were kept in reserve in case the prosecutors, in their discretion, wanted to use the grand jury procedure. Only two states – Pennsylvania and Connecticut (I would probably add Michigan) – banned grand juries even as an option (apart from extraordinary cases). Twenty-three holdout states still mandated that certain serious crimes be reviewed by grand juries, at least if the suspect demanded it.
Rather than give a comprehensive history of the victories of “reformers” who curtailed grand-jury rights in state after state, let me attempt to give some historical vignettes, and tie these vignettes together with some semblance of narrative coherence. Then later, I’ll give an account of the triumph of the reformers in their battle against the grand jury.
The Plessy Judge vs. Grand Juries
U. S. Supreme Court Justice Henry Billings Brown came to the Court too late to take part in the Hurtado case, which said the states could limit or abolish the right of a suspect to have his case considered by a grand jury. But Brown was one of the many would-be reformers of that era who wanted the institution of the grand jury largely abolished.
Justice Henry Billings Brown
Brown gave a speech to the Ohio Bar Association in 1892 that included the judge’s discussion of this issue. Getting rid of grand juries, said Brown, would make criminal procedure more simple and efficient. Brown noted that he had begun his legal career in Connecticut, where grand-jury indictments were only required for crimes punishable with death or life imprisonment. Then Brown boasted of his fifteen-year legal career in Michigan (1860-1875), where grand juries were rarely used and were never required before a defendant could be brought to trial.
Brown suggested that grand juries may have been necessary in England to protect suspects against false charges by private accusers, but this problem didn’t exist in America. In America there were public prosecutors to bring charges and judges to rule on probable cause, and with these steadfast public servants on the job, Brown triumphantly concluded, grand juries were no longer necessary to shield suspects from wrongful accusations.
Brown went on to praise trial juries for their power of nullification – they could spare a guilty defendant, if punishing him went against local community norms. Of course, grand juries could perform that function too, sparing worthy but technically guilty suspects from the ordeal of a trial, not to mention saving them many legal expenses. That did not seem to occur to the Justice. “I think the question whether a man in a particular case should be punished for a crime is a question that is properly left to the public,” Brown said. But under Brown’s scheme, the nullification of an unfair charge would have to wait until the end of an excruciating trial for the suspect, since “the public” would only be able to get a word in edgewise after the trial was over. The public would be kept out of the decision of whether to bring charges in the first place.
Another defect in Brown’s logic is apparent with the growth of the plea-bargaining system, which requires a defendant to gamble on the possibility of a higher sentence if he wants to try his luck with a trial jury.
Brown concluded his speech with a boast that “[t]he Anglo-Saxon is a slow-moving race, but it rarely takes a step backward. It makes mistakes, but its progress has been in the right direction. No serious mistakes have yet been made.”
Speaking of serious Anglo-Saxon mistakes: four years after his speech, Brown again showed his ability to have things both ways and to spin nice-sounding legal theories which were oppressive in practice. Brown gave the Supreme Court’s decision in Plessy v. Ferguson. States could pass Jim Crow legislation separating blacks and whites, Brown’s opinion declared, so long as the separate facilities were “equal” (Justice John Marshal Harlan dissented in the Plessy case – Harlan had also defended the right to a grand jury in his dissent in the Hurtado case). Brown had affirmed the importance of equal protection under the law, while negating this principle in practice with his endorsement of racial segregation. In a similar manner, Brown had praised trial juries for their power of nullification, while calling for the abolition of grand juries which were in the best position to nullify charges against a suspect before he could be dragged through the court system.
Plaque on Homer Plessy’s tomb, New Orleans
Grand juries as scapegoats for police abuse
The fact that one of the most infamous racists in American judicial history wanted to abolish grand juries hasn’t stopped modern, hip and woke activists from throwing the racism charge at grand juries themselves.
In Minnesota, a proposed state constitutional amendment on the 1904 ballot would abolish the right to a grand jury and empower the legislature to decide how prosecutions were to be initiated – and it was correctly anticipated that the legislature would allow the elected county prosecutors to bring charges without grand jury approval. This concerned an anonymous “Voter,” who wrote to The Princeton Union to warn against the amendment. This voter was more skeptical about the professionalism of prosecutors than Justice Brown had been:
The grand jury is a body of citizens who are selected regardless of political belief or creed….[T]he law throws around them secrecy in their actions and they are entirely removed from all political taint or influence. It very often happens that county attorneys are not men wholly competent to exercise powers ordinarily delegated to a grand jury. Much of our politics is run on the “good fellow” plan and sometimes men are kept in office for being good fellows or for various reasons, regardless of qualifications or fitness for office….[County attorneys] are human and to say that their judgment in a case would be as good as as that of the members of a grand jury would be to make an extravagant statement.
The “good fellow” plan
A majority of Minnesotans went ahead and approved the amendment despite these arguments, and the legislature proceeded to give county attorneys the option of bringing charges without using grand juries. Grand juries would still be held in reserve if the prosecutor wanted to employ them, but suspects would no longer have the right to have their cases considered by grand juries. The optional system necessarily gives grand juries a bad odor – prosecutors who use grand juries when they don’t have to do so are often hiding behind the grand jurors’ skirts in order to pass the buck for controversial decisions. And sometimes the public falls for it.
In 2015, two Minneapolis cops confronted and shot Jamar Clark, who died of his injuries. The fact that Clark was black made the issue particularly volatile. Protesters demanded that the county attorney, Mike Freeman, investigate the shooting without involving a grand jury. Freeman had this option thanks to the voters’ decision back in 1904.
Minneapolis protesters in the Clark case
The protesters got their wish. Freeman announced that his office would no longer use grand juries when investigating shootings by police. The president of the Minneapolis NAACP, Nekima Levy-Pounds, said:
I am overjoyed that in this instance Mike Freeman decided to do the right thing. Mike Freeman is fully aware that the grand jury process has been ineffective here and nationally in holding officers accountable. I believe sustained community pressure played a huge role in Mike Freeman’s decision.
Then Freeman, without the help of a grand jury, announced he wouldn’t be bringing charges. The omission of a grand jury didn’t placate the protesters. An NAACP spokesperson (not Levy-Pounds) said, “You, Mr. Freeman, did not give a fair and accurate portrayal…and let me tell you: If the city burns, it’s on your hands.”
Last I heard, Minneapolis was still standing, though the shooting did provoke some protests. Nevertheless, cutting the grand jury out of the loop in the Clark case didn’t ease community tensions, or lead to charges being filed (assuming for the sake of argument that charges ought to have been filed).
The opposition to grand juries was exacerbated when a grand jury in Missouri failed to charge Officer Darren Wilson for shooting Michael Brown. The grand jury’s decision sparked riots. But the Obama/Holder Justice Department, examining the evidence against Wilson, also decided not to bring charges, and there was no grand jury involvement in that decision. So a grand jury took the rap for taking the same position on a racially-charged police shooting as the country’s two top-ranked race-baiters.
(Click here for an article about a controversy over using grand juries in police-abuse cases in California.)
Grand juries came first
The grand jury system was itself created through the actions of a would-be reformer, Henry II of England. The ruler who encouraged St. Thomas Becket’s assassination…
…was not a civil libertarian, but he “built better than he knew” in creating the grand jury. Henry was thinking more in terms of law and order when he decreed that panels of his subjects would be summoned and commanded to report about crime in their localities. What Henry wanted was to root out criminals who had managed to evade justice. Before Henry’s decree, bringing alleged criminals to trial in the secular courts required a private accuser to voluntarily come forward, risking punishment if he failed to prove his charge – and risking retaliation from the criminal. Henry knew that there were criminals running around who were known to the general public, but not known to the courts, since nobody had the guts to make a formal accusation. Not to mention that England was an occupied country whose rulers spoke a foreign language (French) and might not be au courant with the news circulating among their English-speaking subjects.
So Henry II’s early versions of grand juries were required to name people in their area who were believed by the public to be guilty of serious crimes. The grand jurors were not making their own investigations or reaching their own conclusions, but were reporting what was widely believed among their neighbors. Malicious local gossip need not be reported – just the solid consensus of public opinion.
King Henry, the scourge of the Church, was actually adapting a procedure used in England’s Church courts. The Church’s jurists and reformers borrowed from Roman law the maxim that the public interest required crime to be punished. This was in contrast to the Germanic idea of using the justice system to mitigate blood feuds. The descendants of the Germans who conquered the Western Roman Empire wanted people who had mortal grudges against each other to resolve their differences without dragging entire clans into Hatfield/McCoy style, multigenerational cycles of reprisal and counter-reprisal. So if angry relatives came seeking an alleged murderer, the matter would be settled with a trial by battle (if the feud was among aristocrats) or by some form of ordeal (if the feud was among the lower orders) – putting your hand on a burning piece of iron, getting thrown in water to see if you floated, trying to swallow a morsel of bread after boasting of your innocence (choking=guilt). If these methods didn’t identify the criminal with 100% accuracy, at least it was an agreed-upon method, presided over by priests, to settle the feud and move on. And if a crime didn’t spark a feud, or if the victim or their would-be champions were too weak, then it was like “OK, forget about it and let’s have some more mead.”
The Church’s reformers noticed that a lot of crime was overlooked in this way, and that trial procedures left something to be desired in terms of accuracy. So the Church courts, at least in England, came up with a procedure which seemed to inspire Henry II. Instead of waiting for a private individual to take the initiative and prosecute, the Church’s judges would identify a suspect and summon a panel of the suspect’s neighbors to see if public opinion regarded the person as a criminal. If the community wasn’t fairly solid in believing that the suspect committed the crime in question, that was the end of the matter – or rather, any crimes would have to be settled in the “internal forum” (the confessional). But if the community witnesses were like, “yeah, everyone thinks he did it,” then that counted as “fama” – the equivalent of a formal accusation – and a trial would begin.
King Henry thought that was a good idea, so he created his early version of the grand jury to report to the secular courts about those people whom local public opinion identified as serious criminals. If a person was so reported, the accused would undergo an ordeal – apparently the throw-them-in-water-to-see-if-they-drown ordeal – because the criminal trial jury hadn’t been invented yet. Yes, in criminal cases there was only one jury, and that was the ancestor of the grand jury – and unless you put your reliance in the cold-water ordeal, you better hope that public opinion, as reflected by the grand jury’s accusation, was accurate.
“So if the water receives my body, I’m innocent? And if I float, I’m guilty, and you execute me? It’s a good thing the grand jury correctly identified me as the murderer, otherwise I’d be really annoyed at this whole procedure.”
The creation of the English criminal jury was kind of forced on England by the Church. The Fourth Lateran Council in 1215, decided that priests should not preside at ordeals – because priests shouldn’t be shedding blood and because ordeals were not always reliable anyway. Without priests to bless the water ordeal, the practice fell into disuse, and so the English started using trial juries to decide the guilt or innocence of people who had been charged by grand juries with serious crimes.
Another important decision of the Fourth Lateran Council was in clarifying how church courts would go about ascertaining whether a suspect had a reputation as a criminal, so that the court could proceed in the absence of an individual accuser. It wasn’t enough if the rumors against the suspect were generated by “enemies and slanderers” – the public accusations had to come from “prudent and honest persons, not once only, but often.” Commentators gave Biblical examples: the clamor against the sinners of Sodom and Gomorrah, which prompted God to investigate (Genesis 18:20), and the complaints against the steward in Luke 16:1, which prompted the master to demand an accounting from the steward.
Since the creation of secular grand juries in England had probably been prompted by church-court procedure, it is not surprising that grand juries, acting on the same principles as the Fourth Vatican Council, undertook to distinguish between true and false public opinion. As the grand jury evolved, it came to do its own investigation, not simply reporting what their neighbors believed. Grand jurors were becoming the representatives of responsible public opinion by acting as “prudent and honest persons” and seeking reliable evidence about suspects.
But at least people who were accused by grand juries could now look forward to a full trial by another jury, not simply an arbitrary procedure like the water ordeal where one prevails only through blind good fortune. Even today, a small proportion of those who are indicted by grand juries go on to have their cases heard by a trial jury (the rest, of course, resolve their cases by plea-bargains, where the result totally isn’t arbitrary).
Works Consulted
Bab(b)ington Family – Descendants of John de Babington, http://members.iinet.net.au/~billeah/babingdesc.html
Henry Billings Brown, “Justice Brown’s Address,” in Proceedings of the Ohio State Bar Association, 13:35-51 (July, 1892).
Rebecca V. Colman, “Reason and Unreason in Early Medieval Law,” Journal of Interdisciplinary History, 4.4 (Spring, 1974), 571-591.
Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.
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I apologize for the delay. Compiling the the Derponomicon was an excruciating task, and having to re-read is even more painful.
In this installment, I asked the prog to respond to 2 videos. The first was an argument against the income tax called “I’m allowed to rob you.” The speaker asks why a fancy piece of paper signed by a bunch of people makes it OK to rob someone.
The prog wrote:
“Ok, here it is; The problem (one of many) with Larkins argument is he is not an elected official in any position of leadership or authority. So his example is basically simplified nonsense. If he said he was going to come into your house and rob you, but then in return maintain your house, mow your lawn, fix the stairs and sidewalk and landscaping around your house, protect your house from foreign invaders and fire, and ensure that you receive electricity, food, and water through infrastructure that allows it’s easy transfer, he might have a point. You see for the taxes we pay aren’t just going to a bunch of “lazy freeloaders” who do nothing. A fraction. Of a percentage of our federal taxes go to the poor. A much larger percentage of our federal taxes goes to subsidize the very privatized industries that bring us things like food, fuel, electricity, and water…but we still have to PAY THEM out of our own pockets for the services they provide. Giving needy, desperate, destitute, and even lazy people that don’t want to work, the means to survive is essentially society’s payment to them to keep them from having to resort to crime and violence to feed their families. I am not sure who said it, but there is a quote out there that says “Taxes are the price we pay for civilization.” Every single day, no matter who you are, are benefitting from.the collective taxation of US citizens. Whether you walk on a sidewalk, turn on a light, use the internet, eat a candy bar, drive in a car, use a computer, use indoor plumbing, etc. All of these things have been facilitated by the government and would not exist in their current for if not for the organization and incentives the government provides. Perhaps instead of worrying about the crumbs the poor are tossed like so many pigeons behind a bakery dumpster, perhaps we should worry about the guys in business suits repossesing everything in the bakery and foreclosing on the property.”
The next video is a dialog between a human and an alien. The alien asks about government and its nature. It becomes clear that the essence of government is violence, which does not sit will with the human interlocutor.
For me, the best part is when the alien says: so you let politicians steal, enslave, and kill, because you’re afraid someone else might?
The prog wrote:
“As far as the British alien video…..I don’t even know where to begin on this one. It doesn’t really seem to be making a case for anything other than some of the laws we have are silly or superfluous. But I don’t think anyone would disagree that speeding laws, or traffic laws, or environmental laws, or drug laws, or gun laws, or many of the other laws we have are unnecessary. I find the ultimate irony is that many anti-government types take all their laws, like the one that tells them at all costs they must hate the gays, for instance, from a thousands of years old book of archaic and ridiculous laws written by men that thought the earth was flat. Truth of the matter is, if you want to live in a civilized society, there will be laws, and a system of government in place. It can’t just be the wild west all time. Look at these war torn lawless societies in Africa, even with all the rapes, child soldiers, and limb removal…it’s really hard to find anyone with any sort of quality of life. It’s easy to bitch about Mom and Dad when they are the only thing keeping warm and dry and fed. I find that anti-government sentiment is tantamount to a petulant 16 year old bitching about how much their parents suck, but without them, they’d be homeless, starving, sex slaves.”
.jpg "\"Please take away rights from these people we don't like!\"")
