Scholarship Saturday: Imperious, dictatorial, and unconstitutional – the government’s use of peremptory challenges
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.