Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

The backdrop for President Reagan’s inaugural on January 20, 1981 was unforgettable. The United States had endured a decade of decline in our economy at home and our prestige abroad. Some Americans feared our best days were behind us as they had struggled through years of staggeringly high inflation, persistent unemployment, and shrinking incomes. The gears of American industry were slowed by an ever-expanding barrage of high-handed bureaucracies and policies established by administrations dating back to the New Deal.

But on that cold January day, a special man and a big moment came together. In his inaugural address the new president offered a new direction, but one based on the clear, foundational principles of the U.S. Constitution.

In the address, Reagan described the nation’s severe economic challenges, what he called “this present crisis,” as well as his administration’s objective – “a healthy, vigorous, growing economy.” He then used some of the sharpest language of any modern president to underscore the Constitution’s spirit of limited power guided by the people’s approval. “We are a nation that has a government, not the other way around,” he said. “Our government has no power except that granted it by the people. It is time to check and reverse the growth of government which shows signs of having grown beyond the consent of the governed.”

At the time of this address, I was a young, small businessman in the plastics and packaging industry. Like many Americans, I was dealing with the effects of out-of-control taxation and regulation. To me, government was killing the goose that laid the golden egg.

To this day, the simplicity of Reagan’s speech and his strong admonitions guides my work in the House of Representatives. He wanted government “to stand by our side, not ride on our back.” He established as “first priorities” the reawakening of America’s manufacturing base and the reduction of punitive taxes.

The latter goal was accomplished seven months after his inauguration and five months after an assassination attempt. On August 13, 1981, President Reagan signed the Kemp-Roth tax cuts, which slashed tax rates for individuals and businesses, rates which had grown to as high as 70 percent. These tax cuts and other initiatives during Reagan’s two terms led to an economic resurgence.

During the 1980s the economy grew by one-third. Seventeen million new workers were working longer hours per day. Household incomes rose. Unemployment dipped to the 5 percent range. Productivity and manufacturing surged, as did the savings rate. Inflation, once at double-digit levels, stabilized and decreased significantly. And interest rates, which had climbed to more than 18 percent in 1981, steadily fell during the Reagan era. It was, as described in the famous 1984 campaign ad, “morning in America.”

But this economic rebound grew from a clear recognition that federal power is constitutionally limited and that ultimately the people make the wisest economic decisions, not bureaucracies in Washington. President Reagan faced his administration’s challenges with this basic truth in mind. His first inaugural address made a transformational impact still remembered” and relevant” today as our nation faces big government power grabs such as ObamaCare.

If America’s long tradition of enlightened self-government is to survive, the people must not only be acquainted with our founding documents; they must also understand the thinking that produced them. The Constitution is not only the starting point of the American republic, as President Reagan made clear; it is the culmination of several centuries of serious thinking about the role of individuals in relation to each other and the Creator, and the most helpful way for each of us to secure our God-given liberties. I want to thank Janine Turner and Cathy Gillespie. I am humbled by their invitation to appear as a guest essayist. Let me also thank everyone at Constituting America for their hard work to, as they put it, “make the Constitution cool” for kids and adults and accurately teach the history of our great nation.

Read Ronald Reagan’s First Inaugural Speech here.

The Honorable John Boehner represents the 8th Congressional District of Ohio, and is serving in the 113th Congress as the 53rd Speaker of the U.S. House of Representatives.

Breaking with historical precedent, Reagan’s first inauguration was held on the Capitol’s West Front, allowing him to refer in his speech to the presidential memorials and to Arlington National Cemetery in the distance. The first post-New Deal president to challenge the principles of the New Deal, Reagan presents his opposition in terms of reviving the idea of consent of the governed.

January 20, 1981

Senator Hatfield, Mr. Chief Justice, Mr. President, Vice President Bush, Vice President Mondale, Senator Baker, Speaker O’Neill, Reverend Moomaw, and My Fellow Citizens:

To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-four-year ceremony we accept as normal is nothing less than a miracle. Read more

Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table.  Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience.  In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm.  Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial.  The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.”  However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states.  The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact.  Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court.  Judges further instruct the jury as to what is the law to which the facts are to be applied.  In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case.  Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law.  Commercial parties frequently waive the right to a jury trial.  Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries.  This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury.  Left and Right take varying and perhaps contradictory positions on this.  Some on the Right advocate for removal of juries in medical malpractice cases.  The plaintiffs bar howls.  The Left admires administrative law and great bureaucracies.  They call it job creation.  Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best.  In his First Inaugural Address he said first:  “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.  But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32