USA Founders Thoughts

[James E. White]

Alexander Hamilton, who actively participated in the creation of the U.S. Constitution, had the following thoughts regarding how States, and other government subdivisions, might treat controlling powers and, in particular, why civil juries could and should provide a check on judicial abuse of power.

FEDERALIST NO. 15, DECEMBER 1, 1787 (DISCUSSING 13 STATES VS A CONFEDERATION)
[T]here is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature.

FEDERALIST NO. 83, MAY 28, 1788 (DISCUSSING JURY TRIALS IN CIVIL CASES)
The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.

[James E. White]

While Alexander Hamilton's first sentence quoted from Federalist No. 83 has some ambiguity it appears that further consideration as he was writing his commentary led him to side with the benefits of civil juries and their ability to provide a check on not only bribery of the judiciary but the judiciaries susceptibility to their own corruption by power (and/or the enthusiasm to abuse it). One doesn't have to look very far to see how a judiciary, even the U.S. Supreme Court, can be corrupted by its own (apparent, when unchecked) POWER.

In the light of corruption by POWER it is easy to see how judges will leap to inverting the proper hierarchy of Rights vs. Rules to declare arbitrary winners in civil court cases. Often they will do it by exploiting an ambiguity in a judicially created rule (or even dicta) to demand downtrodden individuals produce answers that the judge will never accept even though a jury, with an eye toward justice, would automatically accept the answer.