The public is supposed to maintain their primary authority in our republic through due process of law, which is also called the rule of law. The Bill of Rights says that we cannot be deprived of life, liberty or property except by due process of law. But few people know what that is supposed to mean.
Returning to the idea that the people in government are employees or public servants, how do the public retain control over their servants? If you had a security guard watching over your property, does he have the authority to become your boss? Of course not. But how do you prevent him from seizing authority over you he does not possess? That was the reason for the Constitution of the United States and the Bill of Rights. It was supposed to help prevent the abuse of power by our public servants. It hasn’t totally prevented it, but it has certainly acted to inhibit it.
Many Americans know the rights guaranteed by the first and second amendments to the Constitution that are part of the Bill of Rights. However, most of the amendments in the Bill of Rights deal with issues of due process of law. These amendments define how our government employees obtain authority over one of their bosses.
It is in the following three stages of due process that the true power of “we the people” should be found. Unfortunately, this part of freedom was something we had already almost completely lost when I went to China in 1986 and is being lost more and more as the years go by. We need to both understand it and fight to restore it.
Note: As I am not a lawyer, and this is only a brief overview, it may not completely conform with current policies of due process. My purpose here is not to offer legal advice, but to explain the moral purpose of and need for due process to preserve liberty.
Due Process Step One: Arresting Someone
Since “we the people” are the sovereign authority and government officials are only the servants, our servants must obtain a warrant, based on probable cause, to search our property or detain (arrest) us in our normal activities. Since, both the act of searching someone’s property and the act of detaining them are trespasses against the liberty and property of another, there is supposed be some sort of permission granted from We the People for this to occur.
Probable cause is needed to give warrant (or permission) for the government official to violate the rights of liberty or property according to the fourth amendment. Probable cause is received when one or more citizens issue a complaint under oath indicating that the person or persons in question have committed a crime. The accusation of trespass against the inalienable rights of another is the probable cause that warrants (or permits) the use of force. The accusers are supposed to go before a judge and make statements, under oath, that they have evidence that the accused person or persons have violated the rights of another by committing a crime.
As I pointed out in an earlier posting, the original definition of a crime was “a deliberate and willful trespass against the life, liberty or property of another, in which there is a demonstrable loss of life, liberty or property.” So, one or more of the bosses (the people), must assure the judge that they can demonstrate that there has been a loss of life, liberty or property as a result of the actions of the accused.
In giving the right to the government to make an arrest or authorize a search under probable cause, the citizen has not surrendered her or his right to defend themselves. Ever hear of a citizen’s arrest? As one of the sovereigns of government, if I observe a trespass in progress, I should have a legal right to step in and attempt to stop the trespass.
And, since the public servants are also citizens, they have the right to make an arrest if they witness a crime in process. In this case, the probable cause is their own accusation or testimony that they witnessed the crime, which they must also present to a judge to initiate the remainder of due process.
Of course, a false arrest is possible under a common law system. A false arrest would occur when the accusers lied about the facts in order to have a person arrested. Police can make false arrests when they accuse people of crimes they didn’t commit or that actions which aren’t crimes give them the authority to do so.
A person making false statements under oath is violating the ninth commandment, which declares we should not bear false witness against our neighbor. Such a person is also guilty of attempting to use the force of government to commit a crime. A person who hires someone to do their dirty work is morally responsible for the consequences. Therefore, if a private citizen or a government employee like a police officer fabricates the probable cause, they are guilty of a crime. The crime is called perjury.
It is interesting to note that in Old Testament law, a person who was found to be guilty of perjury was subject to the same penalty that the accused would have received if convicted under the false charge. In other words, if a person provided false evidence and testimony to charge someone with murder, they would be held guilty for attempted murder. This is because they sought to use the power of the government to commit murder.
If this principle were applied in law today, police officers would be far less tempted to tamper with evidence or plant evidence in order to obtain a conviction. Knowing they could experience the same penalty they were trying to inflict on others if they were caught would help them reconsider their actions.
Due Process Step Two: Grand Jury Indictments
Once the accused citizen has been arrested, they have the right to be brought to the court to face their accuser(s). They have the right to answer the charge that has been made against them and bring in witnesses to demonstrate their innocence. If the crime they are charged with is “infamous,” or in other words, a felony punishable by death or more than a year in prison, they have the right to face their accuser(s) before a grand jury as guaranteed in the fifth amendment.
The grand jury is a body of sovereign citizens, representatives of the sovereign We the People. These representatives hear the accusation (or charges) and the accused person’s answer to the accusations. After hearing the evidence, the grand jury takes a vote to determine whether the government will be given permission to prosecute the person charged with the crime. This is called a grand jury indictment.
Under a grand jury indictment, the person is taken to trial in the name of the people. If I were being properly indicted here in Utah by a grand jury, the indictment would say, “The people of the state of Utah versus Steven Horne.” An indictment reading, “The State of Utah versus Steven Horne,” means that it is the government, acting without the authority of the people that are accusing me.
This is a serious violation of our bill of rights, which specifically states that no one can be made to answer for any infamous crime without a grand jury indictment (unless, of course, they waive this right). In other words, the state (i.e., government) is not supposed to be able to put me on trial for a serious crime without the permission of the people.
Under our common law traditions, the only issue that can be addressed directly by a judge (a government employee) is a misdemeanor. A misdemeanor is a less serious crime, and may even not be a crime by the previous definition we cited. For example, it can be a violation of basic public decency, in other words, public misbehavior. Depending on the jurisdiction, examples of misdemeanors currently recognized in many areas are petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespass, vandalism, reckless driving, discharging a firearm within city limits, and public nudity. These standards should be based ideally be determined on the community level because a community (town or city) has the right to expect some basic decency in the behavior of its citizens. The traditional punishment for these kinds of offenses if fines, and only if a citizen repeatedly refuses to pay the fines or repeatedly violates the law could he or she be charged with a more serious offense.
But returning to the importance of the grand jury. A properly constituted grand jury is supposed to have the power to indict public officials, too. This means that grand juries are supposed to be the watchdogs of government, having the ability to charge one of their employees with a crime and force them to trial for it.
This is important because everyone in a republic has to follow the same standards of law, including those serving in the government. Remember that in a republic there aren’t supposed to be rulers or a ruling class. Only under a system of ruler’s law are the rules different for the people and the leaders.
Due Process Step Three: Trial by Jury
The final part of due process is the trial by jury as guaranteed by the sixth amendment. Again, a jury is a body of private citizens, representatives of We the People. It is the jury who is delegated the responsibility of determining whether a person should be deprived of life, liberty or property, not the government.
This is critically important. The government (who are only the public servants) should never have the authority to deprive one of the sovereigns of their life, liberty or property. Under a true common law system, only a group representing the sovereign authority has the right to make these decisions.
Unfortunately, we have largely surrendered this right and responsibility, along with many of our other “due process” rights under common law. We now allow numerous bureaucrats in the executive branch of government to charge you with a crime, determine if you are guilty and levy fines and other punishments without this right of a jury trial. The government should not be allowed to have this power in a republic by the people, of the people, and for the people.
But, the importance of the jury goes far beyond the jury’s ability to determine guilt or innocence. Juries have the right to decide both the facts and the law. The facts are the evidence suggested by the prosecution that the law was broken. The law means that the jury has the right to decide if the law is moral or not, and even if it is moral, is it moral to apply the law in this situation.
In other words, trying the facts means determining if the person broke the law. Trying the law means that the jury has the right to overturn the legislature and nullify the law. It’s a principle called jury nullification.
It takes all twelve members of a jury to convict a person. If only one person is convinced that the person is innocent of the crime of which they are accused the jury is hung and the person is acquitted. The magic of this is that it’s hard to get 12 people to agree on anything. So, if all twelve people believe the evidence points to a person’s guilt, that’s a good basis for depriving someone of life, liberty or property.
To see how one person who is unconvinced of a person’s guilt can sway a jury watch the brilliant 1957 film, Twelve Angry Men. Eleven of the jurors are convinced the defendant is guilty, but one man stands out, questioning that judgment. In the end, he manages to persuade the entire jury that the defendant is innocent.
It also takes all twelve jurors to decide if the law is immoral. If they all decide that the law is wrong and violates the unalienable rights of the defendant, they have the ability to render the law null and void. I bet that’s something you were never taught in public school.
More than any other part of due process, it is the principle of jury nullification that gives the people their moral power and authority to control the government. That’s why no one teaches people that they have this right. It is the absolute affirmation that the power of government lies with We the People.
The Founding Fathers understood this well. In 1771, John Adams said “It is not only…[the juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Thomas Jefferson told Thomas Paine in 1799, “I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” Then, in 1794 Chief Justice John Jay of the Supreme Court wrote, “The jury has the right to judge both the law as well as the fact in controversy.” To learn more, check out the Fully Informed Jury Association (fija.org), who are trying to educate Americans about their rights as jurors.
Due Process is in Serious Danger
If you’ve read this, it should be very clear our government no longer follows due process in much of what it does. Government officials write their own warrants. They search property and detain people without warrants. People are indicted in the name of the state, not the people. Juries are not informed of their rights of jury nullification. Grand juries are not investigating alleged wrongdoing on the part of government officials. In short, we have largely substituted a government based on Ruler’s Law for one based on Common Law.
What’s unfortunate, is that when I have tried to explain these concepts to people, many have argued that such a system isn’t workable. It appears that many people are perfectly comfortable surrendering their authority and allowing government officials to be rulers rather than public servants.
This is most unfortunate because when We the People give our moral consent for the government to decide who should be deprived of life, liberty or property, we put ourselves in grave danger as I have already described. We also inhibit the good. That is why in the next chapter I am now going to shift from talking about government and law to talking about the positive aspect of the law of the harvest and morality, which is doing good in the world.