Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: “We the people.” “We the people” tell the government what to do, it doesn’t tell us. “We the people” are the driver, the government is the car. And we decide where it should go, and by what route, and how fast.

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I hope we once again have reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as the law of physics: As government expands, liberty contracts.

Ronald Reagan’s Farewell Address to the Nation, Reagan Presidential Library and Museum (January 11, 1989).

In an article soon to be published in the William and Mary Bill of Rights Journal, Harvard Case Writing Fellow Brittany Dietch, identifies the peremptory challenge – the ability to remove jurors from a criminal case without cause – as being an area where government power has expanded. In her article, The Unconstitutionality of Criminal Jury Selection, Ms. Dietch argues that, in accordance with Reagan’s above-cited maxim, the advent of the government’s ability to exercise peremptory challenges has been accompanied by a corresponding, and unconstitutional, contraction of liberty.

In making that argument, Ms. Dietch’s article first defines the purpose of juries (and, ostensibly, court-martial panels):

The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.

The Unconstitutionality of Criminal Jury Selection at 2, fn. 5 (quoting Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (oyez)). In short, the purpose of a jury (or a court-martial panel) is “to protect the defendant from governmental overreach,” whether the actor doing the overreaching is a prosecutor or a judge. The Unconstitutionality of Criminal Jury Selection at 2. Given that purpose, Ms. Dietch argues that allowing the government to stand on equal footing as the defendant when determining who should sit on a jury or a court-martial panel is in “conflict [with] the Founders’ intentions.” Id. at 3. She concludes:

Simply stated, the government should not be entitled to select the very jury [or court-martial panel] that is supposed to serve as a check against its power.

Id.

Ms. Dietch’s assertion that the Founders never intended for the government to possess power like the peremptory challenge invites a critical eye; and her article does not shirk that invitation. The article notes, first, that the British Crown’s efforts to defang colonial juries was a primary spark that ignited the American Revolution. Id. at 5; see also, The Declaration of Independence para. 20 (U.S. 1776) (“For depriving us in many cases, of the benefits of Trial by jury.”) The Founders saw the institution of the jury as being a fundamental check on government power. Indeed, Thomas Jefferson famously wrote:

I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.

Letter from Thomas Jefferson to Thomas Paine, July 11, 1789.

Perhaps for this reason, “the privilege to use peremptory challenges was granted exclusively to the defendant until the mid-to-late 1800s[, and] was designed and perceived primarily as a defendant’s weapon.” The Unconstitutionality of Criminal Jury Selection at 13 (internal citation omitted). Further, as Ms. Dietch notes, Blackstone “praised the [defendant-only] peremptory challenge as ‘a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.’” Id. (quoting 4 Blackstone Commentaries 346.

In that light, the government’s assumption for itself of the right to remove jurors from criminal proceedings without cause does appear to be an expansion of power which was not envisioned by the Founders. Under Reagan’s maxim, that expansion of governmental power must result in an equal contraction of liberty in the civilian jurisdiction. Whether the Founders would find the same expansion of government power in the military jurisdiction to be equally unanticipated, and equally harmful to liberty, is a different question.

Exploring that question requires, first, an acknowledgement that the government’s present right to exercise peremptory challenges at trial by court-martial is a creature of statute. However, it is not a power the government possessed at the time of the Founding. Throughout our Nation’s military history, indeed all the way through World War I, only the accused could exercise challenges against members at a trial by court-martial, and then only for cause. Proceedings and Report of Special U.S. War Department Board on Courts-Martial and Their Procedure 23 (July 17, 1919).

After the end of World War I, the Articles of War were revised on the premise that “the existing system of military justice [was] archaic and unsuited to these times and that it lends itself to injustice.” Id. at 5. Specifically, it was regarded that, among other ills, “reviewing officers [were] arbitrary and control[ed] courts-martial to an extent with [made] the final result practically a reflection of their individual will and judgment,” “judge advocates [were] often incompetent to present the case clearly and properly to the court,” “counsel for the accused [were] too often incompetent and not infrequently a positive hindrance to the defense,” and that courts-martial were “generally in faulty justice since the members [were] deficient in sound discretion or in legal knowledge.” Id.

It was against that backdrop – a stinging critique of how the accused was treated at trials by court-martial – that the War Department set about in 1919 to persuade Congress to enact reforms. Perhaps incongruent with that backdrop, one of the War Department’s recommendations was to expand government power by allowing the prosecution to challenge members for cause, just as the accused already could. Id. at 23. With that proposal on the table, The Judge Advocate General expanded the recommendation, and advised Congress to allow both parties to exercise not only challenges for cause, but also one peremptory challenge each. Courts-Martial: Amendments to Articles of War, Hearing Before a Special Subcommittee of the Committee on Military Affairs, House, 66th Cong. 16 (1920). That recommendation, unknown to the military justice system for the first 144 years of its existence, and unknown at the time of the Founders in either civil or military practice, became law in 1920. Article 18, The Articles of War, Approved June 4, 1920 at 7, Government Printing Office (Sep. 1920). It remains the law today. 10 U.S.C. § 841(b)(1) (2017).

Given that legislative history, it is fair to say that, just as the Founders did not envision that the government would be able to remove civilian jurors without cause from criminal proceedings, they also did not envision the government having such power at trials by court-martial. Accordingly, Ms. Dietch’s observations regarding the Constitutional questions raised by such practices appear applicable to both systems of justice.

Allowing the government to remove members of the very body designed to constrain it, without offering cause or other explanation, is, indeed, properly defined as “peremptory”–

Peremptory. adj. – leaving no opportunity for denial or refusal; imperative; imperious and dictatorial; positive or assertive in speech, tone, manner, etc.; precludes or does not admit of debate, question, etc.; decisive or final; in which a command is absolute and unconditional.

Dictionary.com.

It is a valid question to ask whether, in a country that is supposed to be ruled by a limited Republican form of government, a government prosecutor should ever be allowed to wield peremptory authority over the very group of people who are supposed to serve as a check on government power.

4 Responses to “Scholarship Saturday: Imperious, dictatorial, and unconstitutional – the government’s use of peremptory challenges”

  1. Philip D. Cave says:

    There was a time we would file a motion to preclude the gubmint’s preempt because the gubmint already had an unlimited number of preempts through the CA and SJA selection process-as mandated by Art. 25.  Obviously, that litigation didn’t go too far.  Maybe someone can give it another try or get the JSC to suggest a change.

  2. Nathan Freeburg says:

    Phil: were you working off United States v. Carter, 25 M.J. 471, 478 (1988)(Cox, J. concurring)?

  3. Philip D. Cave says:

    Yes, that was what got us thinking combined with the “perception doctrine” and there you go—nowhere.  How can there ever be a O-4 or above who cannot meet Art. 25 criteria who needs to be preempted?  Think about it.  Unless the ultimate criteria is that he/she will think and vote like me, but there you go, you’ve got me thinking cynical again.
     
    While I’ve stopped filing this motion, I’ve made the argument in some 120 cases as part of the reason for granting the defense additional preempts to counter UCI.  Can’t find a copy, the issue was so old, I probably deleted along with the standard challenge to the five-person “jury.”
     

    Article 25(d)(2), UCMJ, 10 U. S. Code §825(d)(2), gives the government the functional equivalent of an unlimited number of peremptory challenges.  Article 25(d)(2) provides that ‘the convening authority shall detail as members such members of the armed forces as, in his opinion, are best qualified for the duty.’  The statutory authority to choose the members necessarily includes the corollary right not to choose.”  United States v. Carter, 25 M.J. 471, 478 (C.M.A. 1988) (Cox, J., concurring).

  4. stewie says:

    Let’s say, and I’m just spit-balling here…you are prosecuting a Klansmen for murder or assault, and one of your potential jury members seems mighty racist to you…not enough to to warrant a challenge, but enough that you think that person is not going to give a fair reading to the evidence.
     
    I don’t think the idea of giving the gov preemptory challenges in general is a constitutional problem per se. Now, in the military system, where the gov already selects the entire panel pool, that’s probably an added layer that makes it more problematic. I’d say the answer is simply to go to a random system where anyone on the base regardless of rank is selected for say a 20-30 person pool and then both sides get preemptory challenges and challenges for cause.