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Example research essay topic: Trial By Jury Rule Of Law - 988 words

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... d and enumerated powers, but which now seems to have gotten us a national government of unlimited and plenary powers, which can legislate or regulate in any matter whatsoever, what we have seen is the destruction of the rule of law, through the arbitrary authority of an irresponsible court, rather than its preservation. When the citizen demands that the government obey the Constitution, and the government replies that it is obeying its interpretation of the Constitution, which gives it authority and discretion far beyond that overthrown in the American Revolution, then the whole idea of the 'rule of law' has been turned around to justify the very kind of arbitrary, discretionary, and unaccountable authority that it was supposed to prevent. The interpretation of the law cannot be trusted to those with the power to enforce it also. The separation of powers between the judiciary and the executive in the federal government was not sufficient to prevent this, as 'errors. htm' already understood: 'How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?' The federal courts are part of the federal government and will tend to take its side in the long run.

This is precisely what has happened. Hence we return to Jefferson's maxim that only trial by jury can hold a government to the 'principles of its constitution. 's ince, as a matter of fact, a jury can practice nullification even if the judge tells it that it can't, because its deliberations are secret and unrecorded, trial by jury is still, as long as jurors are brave and informed, one of the most important protections for freedom. Most Americans on jury duty blindly obey the judge, but occasionally feelings run high enough in important cases for juries to ignore the judge and do the right thing. In defending the rule of law but also complaining about judicial activism, Thomas Sowell says: A judge cannot 'do justice' directly in the case before him.

This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand's parting salute was: 'Do justice, sir, do justice. ' Holmes ordered the carriage stopped. 'That is not my job, ' Holmes said to Judge Hand. 'It is my job to apply the law. ' [The Quest for Cosmic Justice, The Free Press, 1999, p. 169 ] Although Sowell is properly concerned about the erosion of the rule of law by judicial activism in the service of 'cosmic' and totalitarian ideology, he and Justice Holmes are wrong in this. The law is supposed to be an instrument of justice, and judges, like any morally conscientious persons, have a duty to see that justice is done.

What is required, of course, is a proper sense of justice, which is to respect things like property rights that have been trashed by 20 th century American courts. As it happens, property rights are protected by the Constitution, the supreme law of the land. Any judge who threw out an indictment that violated the 'Takings' clause of the Fifth Amendment is thus very properly reporting the law -- respecting it as it has not been respected by even the Supreme Court since the New Deal. It is only a belief in blind obedience (to the dishonest Supreme Court), not the rule of law, that prevents judges from doing this. 'times- 4. htm', a federal judge in Los Angeles prohibited a cancer patient from smoking marijuana while on bail, even though he would become more ill, and might even die, without it, just because such an exemption would violate the very laws that the patient was being accused of violating. The judge, however 'sympathetic' to the 'plight' of the dying man, could not authorize a violation of the law.

However, in a related medical marijuana case, the Ninth Circuit Court of Appeals subsequently sent back a judgment for reconsideration because the trial judge had not allowed 'medical necessity' as a consideration in his opinion. 'Necessity, ' indeed, is an old common law defense: If someone must violate a law or die, one has a perfectly valid reason for violating the law. No 'judicial activist' made this up, but the trial judges in both the cases mentioned would not allow it. Who is respecting the rule of law in these cases? The judge who sadly knows that he may be condemning a man to death, or a judge who appeals to an ancient and reasonable exception to laws that are inappropriately applied? In the former, the judge is both a bad judge, rejecting the existing tools of justice, and a bad man, for not at least recusing himself lest he be forced by a perverse duty to do evil.

One hopes that something like applying the Nuremberg Laws or the fugitive slave laws would have been too much for Justice Holmes. I should note in closing, however, that government conducts much of its business today through 'fiction. htm' and penalties that are imposed summarily, without trial by jury, or often without trial at all. This is becoming the most convenient instrument of tyranny open to modern American government.

At the same time, judges who are hostile to nullification, and who have the power of arbitrarily imposing 'contempt of court' penalties without trial by jury, or even legal explanation, are beginning to use their powers to intrude on the deliberation processes of juries, trying to make jurors answerable for deliberations that traditionally and constitutionally have been secret, unrecorded, and un reviewable. But, as Jefferson would have said, it is not surprising to see such devices used, by those with tyranny in their hearts, to expand their own power and the domination of government.


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Research essay sample on Trial By Jury Rule Of Law

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