Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, Read more

Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. Read more

Saturday, May 29th, 2010

As I read Federalist 23, I thought about attacks the United States has endured in the last century: especially the air attack on Pearl Harbor, and September 11, when hijacked commercial airliners were flown into the World Trade Center and the Pentagon, and United Airlines Flight 93 was crashed before it could reach its target.  These types of attacks have been unimaginable to the people of the United States, even our leaders at the highest levels of government, until they occur.  And the only certainty is that our country will eventually be attacked again, in a new creative way, that we once again cannot imagine.

Alexander Hamilton knew this. His words, “The circumstances that endanger the safety of nations are infinite….” and, “it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them,” ring true as we remember the wars our country has fought through the years since 1787, and the many times the President has had to send troops into hostile situations.

The founders wisely built checks and balances into our national defense.  While the Congress is given the power in Article I, Section 8 to declare war and to raise and support troops, the President is designated as the Commander in Chief in Article II, Section II, a power used broadly by Presidents to send troops where the President has deemed necessary. The War Powers Act of 1973 attempted to clarify and formalize consultation with Congress by the President when sending troops into hostile situations, and put a time limit on troops sent by the President without Congressional approval.  The Constitutionality of this law has been questioned, some have advocated for its repeal, and most recently in July, 2008 a bi-partisan Commission led by former Secretaries of State James Baker and Warren Christopher, recommended improvements.

While there is tension between the executive and congressional branches over the parameters of their war powers, it is imperative that our government provide for our defense, and be given the power to do so. Whether it be stopping Hitler and Japan in World War II, halting the spread of communism, as was attempted in Vietnam, or fighting terrorists in Afghanistan and Iraq, our American Troops, directed by our Commander in Chief, have bravely kept our country safe and preserved our liberty.

It is fitting we read Federalist No. 23 on this Memorial Day Weekend.  Let us honor those men and women who have sacrificed their lives so that our freedom lives on, and let us be thankful for the wisdom of our founders who knew that providing for the common defense was best left in the hands of our federal government.

Cathy Gillespie


Monday, May 31st, 2010

It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.”  This was a legitimate fear, based on history, as Allison Hayward points out in her essay today.  (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution).  And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude.  Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military.  Only 12% had an unfavorable opinion and 13% weren’t sure.

I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring the government’s control of the military, balancing power between the legislative and executive branches.  The abuses that the anti-federalists feared have not come to pass.

An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom.  These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty.  I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans.  Our country owes you all a huge debt of gratitude.  Thank you, from the bottom of our hearts.

Cathy Gillespie


“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”Article II, Section 2, Clause 3 of the United States Constitution.

Hello from Mt. Vernon Virginia!  In Federalist No. 67, Publius vigorously defends the above sentence in the U.S. Constitution, and uses the anti-federalists’ arguments against it as an example of their distortion of the powers of the presidency.

It is appropriate I should be writing from Mt. Vernon, Virginia today, as President George Washington made the first use of the power of the recess appointment in 1789, to fill several federal district court judgeships.  On July 1, 1795 President Washington made a recess appointment to appoint John Rutledge as Chief Justice of the United States Supreme Court, upon Chief Justice John Jay’s resignation to become Governor of New York.   Within 15 days of Chief Justice Rutledge’s recess appointment, Rutledge made a controversial speech attacking the Jay Treaty, saying he would rather see President Washington die, than sign the treaty! Chief Justice Rutledge’s tirade led many to believe he was mentally ill or intoxicated when he made the speech.  (for more on this story, see my source:, page 17).

Consequently, when Chief Justice Rutledge was nominated by President Washington for a full life term in December of 1795, Rutledge’s nomination was rejected by the Senate five days later by a vote of 10-14,  making him the shortest serving Chief Justice in United States History!

From the moment of its inception, the United States Constitution went to work. The checks and balances and separation of powers delineated in this great document provided boundaries even on our first and revered President, George Washington.  Imagine if the 24 hour news cycle had existed in President Washington’s time.  The story of Chief Justice Rutledge would have been covered non-stop, and his speech would have certainly been all over You Tube!  But despite the difference in technology, and the span of hundreds of years, our United States Constitution works much the same today as it worked at the time of its birth, like gears in a machine, steadily providing a check to one branch, and then another, with our liberty delicately balanced.

To the extent that one branch goes too far, and encroaches on another, or provides a check where none should be, it is not a failure of the machine, it is a failure of the energy behind the machine – “We the people.”   Our knowledge is power, and our power translated to action is energy!

Thank you Troy Kickler for your brilliant essay, and your continued participation in our 90 in 90 History Holds the Key to the Future project.

And thank you to our fellow Patriots and “guardians of the Constitution,” (Federalist No. 16) for participating in our blog!

On to Federalist No. 68,

Cathy Gillespie

Thursday, July 29th, 2010

Guest Essayist: Troy Kickler, Founding Director of the North Carolina History Project.

Among the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67.  A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task.  He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.

He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2.   In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.

Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”

After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies.  Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate.  This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators.  He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate.  (This was changed, however, with the passage of the 17th Amendment–popular election of Senators).

Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2.  Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections.  In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine.  Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.

But back to Hamilton’s points.  Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991).  This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations.  As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92):  “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.”  Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.

It must be remembered that the President nominated, but Congress approved the nomination.  Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision.  Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution.  Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office.  The Senate has to consider upon it.  If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”  History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.

Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty.  The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power.  We can be thankful for that.

Thursday, July 29th, 2010

Troy Kickler is Founding Director of the North Carolina History Project.


Guest Essayist: Nathaniel Stewart, attorney and fellow at the Ashbrook Center for Public Affairs

In Federalist #75, Alexander Hamilton explains and defends the power of the President to make treaties with foreign nations “by and with the Advice and Consent of the Senate.”  The treaty-making power granted in Article II section 2 involves, as Hamilton observes, another example of an “intermixture of powers,” a power shared by the President and the smaller house of Congress.

Hamilton acknowledges four arguments levied against this particular arrangement and addresses them each in turn.  First, there are those who would vest the power in the President alone.  Second, there are some who called for the power to reside only in the Senate.  Still others called for the House of Representatives to hold a share of the treaty power.  And finally, having answered these objections, Hamilton explains why treaties may be approved by only “two-thirds of the Senators present,” rather than two-thirds of the whole body.

Hamilton begins with the initial explanation that the power to make treaties does not readily fit within either the legislative or administrative functions of government.  Here, Hamilton reminds his audience of the precise functions of these two branches of government, and distills them neatly:  “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”

But the power to negotiate a treaty, Hamilton argues, does not involve enacting a new law or enforcing an old one.  Treaties are not laws, they are contracts.  They enjoy “the force of law” derived from “the obligation of good faith,” but they are not laws as between a sovereign and its subject, or rules which must be obeyed.  Rather, a treaty is a contract between two sovereigns, and thus, the treaty-making power is a distinct and peculiar function, neither purely legislative nor wholly administrative.  This provides the foundation for Hamilton’s contention that the treaty power be shared between the branches, rather than vested in only one.

Turning then to the contention that the President alone should wield this power, Hamilton repeats the common refrain that history proves power to be all too tempting for men to resist.  The hereditary monarch, he notes, has too much at stake – given the length of his lifelong reign – to risk being corrupted by a foreign nation.  But such is not the case with a man elected for a mere four years; a man who may have risen to the rank of President from a more modest station, and for whom a foreign allegiance might then prove quite valuable when his term of office has expired.  To entrust this great authority in such an elected official would be “utterly unsafe and improper,” lest he be “tempted to betray the interests of the state to the acquisition of wealth.”

But this does not mean that the power should rest with only the Senate, for this would deprive the President of too much authority in foreign relations and negotiations.  The President is to enjoy “the confidence and respect” of other nations, and the Senate, as a legislative body, is unlikely to command such foreign confidence.  Thus, the country would lose the benefit of the President’s unique position among the nations were he to be excluded from the treaty process.  For Hamilton it is then clear that the “greater prospect of security” for the country lies in the joint sharing of the treaty-making power.

Despite the prudence of this “intermixture” between the Senate and the President, Hamilton resists the call to include the House of Representatives in the treaty power.  Treaties, he argues, require a set of qualities which cannot be expected from such a large and “fluctuating” body of representatives.  Treaties require “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy, and dispatch.”  The design of the House of Representatives is not conducive to these qualities and would only muddy the waters at potentially critical and inopportune moments of decision.  While we might wonder today whether even the Senate possesses the requisite “uniform sensibility” that Hamilton envisioned, one would be hard pressed to quibble with his foresight in resisting the call to extend the treaty-power to the ever-ephemeral House of Representatives.

Finally, the author takes up the challenge that treaties ought to be ratified by two-thirds of the whole Senate, rather than merely “two-thirds of those present.”  Anytime a super-majority, like two-thirds, is required for an approval, the matter is increasingly beholden to the will of a select minority, rather than that of the majority.  Hamilton rightly recognized that the treaty-making power would be no exception.  Requiring two-thirds majority of the entire body to affirm a treaty risked the possibility that a minority of Senators could defeat the measure simply by not appearing to vote on it.  On the other hand, such gamesmanship would be discouraged and unrewarded by allowing the treaty to pass with the support of only a super-majority of those present.

The treaty-making power is a shared power.  Not a legislative function, nor an executive’s role, a treaty represents a bond between two sovereign powers, likely the culmination of a negotiation, a settling of terms.  It is for this reason that Presidents must enjoy enough power to broker the terms of the agreement, while a discrete and noble body of another branch ensures that such power is only invoked in the best interests of the nation and its security.

Tuesday, August 10th, 2010

Nathaniel Stewart is an attorney in Washington, DC, and a fellow at the Ashbrook Center for Public Affairs



Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.


Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases.  At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83.  In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.

From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases.  There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”

However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases.  One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’”  Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon.  This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.

Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments.  The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury.  Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court).  While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government.  This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers.

Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution.  The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’”  However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.

The proposition from the Massachusetts convention says, “’In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.’”  According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial.  Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.

Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval.  Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt.  If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”

Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental.  In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law.  Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly.  And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time.  While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”

All citizens now have the right to a jury trial, though they can waive the jury.  Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute.  The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.

Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides.  Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings.  The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption.  The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.

Friday, August 20th, 2010

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit