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

By Isaac Kennen

Scholarship Editor

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. . . .

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 NationReagan 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 Deitch, 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, 26 Wm. & Mary Bill Rts. J. 1059 (2018), Ms. Deitch 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. Deitch’s article starts by quoting the Supreme Court’s articulation of 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 1060, 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 1059. Given that purpose, Ms. Deitch 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 1061. 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.

Id. at 1063.

Ms. Deitch’s assertion that the Founders never intended for the government to possess power like the peremptory challenge invites a critical eye; and her article does not shirk that invitation. The article notes, first, that the British Crown’s efforts to defang colonial juries was a primary spark that ignited the American Revolution. Id. at 1064see alsoThe Declaration of Independence para. 20 (U.S. 1776) (“For depriving us in many cases, of the benefits of Trial by jury.”) The Founders saw the institution of the jury as being a fundamental check on government power. Indeed, Thomas Jefferson famously wrote:

I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.

Letter from Thomas Jefferson to Thomas Paine, July 11, 1789.

Perhaps for this reason, “the privilege to use peremptory challenges was granted exclusively to the defendant until the mid-to-late 1800s[, and] was designed and perceived primarily as a defendant’s weapon.” The Unconstitutionality of Criminal Jury Selection at 1073 (internal citation omitted). Further, as Ms. Deitch notes, William Blackstone “praised the [defendant-only] peremptory challenge as ‘a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.’” Id. (quoting 4 Blackstone Commentaries 346).

In that light, the government’s assumption for itself of the right to remove jurors from criminal proceedings without cause does appear to be an expansion of power which was not envisioned by the Founders. Under Reagan’s maxim, that expansion of governmental power must result in an equal contraction of liberty in the civilian jurisdiction. Whether the Founders would find the same expansion of government power in the military jurisdiction to be equally unanticipated, and equally harmful to liberty, is a different question.

Exploring that question requires, first, an acknowledgement that the government’s present right to exercise peremptory challenges at trial by court-martial is a creature of statute. However, it is not a power the government possessed at the time of the Founding.

For much of our Nation’s military history, indeed all the way through World War I, only the accused could exercise challenges against members at a trial by court-martial, and then only for causeProceedings and Report of Special U.S. War Department Board on Courts-Martial and Their Procedure at 23 (July 17, 1919). In 1919, a Special War Department Board proposal to allow government counsel to also exercise challenges for cause drew a stern dissent from then-Acting Army Assistant Chief of Staff, General Francis Kernan, who noted: 

Of the large number of officers making suggestions for the improvement of the existing system, very few recommended this change [allowing for a peremptory challenge by the government]; and those who did so recommend were mostly lawyers from civil life commissioned for the emergency and whose experience upon courts-martial was either slight or none at all. The innovation . . . is based upon the erroneous assumption that what is necessary or useful in that practice must, as a matter of course, be desirable in the military practice.” 

Report at 23.  

Nonetheless, despite such adamant objections from high-ranking military officers, Congress was determined to make changes to the military justice system, animated by a sense that “the existing system of military justice [was] archaic and unsuited to these times and that it lends itself to injustice.” Id. at 5. Specifically, it was regarded that, among other ills, “reviewing officers [were] arbitrary and control[ed] courts-martial to an extent with [made] the final result practically a reflection of their individual will and judgment,” “judge advocates [were] often incompetent to present the case clearly and properly to the court,” “counsel for the accused [were] too often incompetent and not infrequently a positive hindrance to the defense,” and that courts-martial were “generally in faulty justice since the members [were] deficient in sound discretion or in legal knowledge.” Id.

Against that backdrop of lacking confidence in the efficacy of the military justice system, a subcommittee of the House of Representatives decided to propose a bill “departing from the recommendation of The Judge Advocate General [of the Army],” in order to provide “that each side shall be entitled to one peremptory challenge.” Courts-Martial: Amendments to Articles of War, Hearing Before a Special Subcommittee of the Committee on Military Affairs, House, 66th Cong. 16 (1920). That recommendation, opposed by the military establishment, unknown to the military justice system for the first 144 years of its existence, and unknown at the time of the Founders in either civil or military practice, became law in 1920. Article 18, The Articles of War, Approved June 4, 1920 at 7, Government Printing Office (Sep. 1920). It remains the law today – see Article 41(b)(1), UCMJ, 10 U.S.C. § 841(b)(1).

Given that legislative history, it is fair to say that, just as the Founders did not envision that the government would be able to remove civilian jurors without cause from criminal proceedings, they also did not envision the government having such power at trials by court-martial. Ms. Deitch’s observations regarding the Constitutional questions raised by such practices therefore appear applicable to both systems of justice.

Further, allowing the government to remove members of the very body designed to constrain it, without offering cause or other explanation, is, indeed, properly described as “peremptory”–

Peremptory. adj. – leaving no opportunity for denial or refusal; imperative; imperious and dictatorial; positive or assertive in speech, tone, manner, etc.; precludes or does not admit of debate, question, etc.; decisive or final; in which a command is absolute and unconditional.

It is a valid question to ask whether, in a country that is supposed to be ruled by a limited republican form of government, a prosecutor should ever wield a power that could be described as “peremptory.” If it is true that, as President Reagan cautioned, “as government expands, liberty contracts,” then it is perhaps dangerous that we have allowed the government to acquire power that is so aptly described in the dictionary as "peremptory - imperious and dictatorial.” 

Originally published on January 6, 2018 on Preserved by, here. In the CAAFLog archive, without attribution, here.