The Founders hated Old World justice. Agency adjudication brings it back.
Sitting on the stone-cold floor and staring out of the bars of his cell in the Tower of London, Thomas Cromwell awaited his execution. Cromwell had faithfully served King Henry VIII for over a decade and had earned an earldom for helping the King with his infamous marital life. And yet, here he sat with the rats. Anne of Cleves, the third wife that Cromwell had helped to secure for the King, had failed to please Henry, and he blamed Cromwell. Before the nullification of their marriage, Henry looked for a scapegoat. English nobility seized the opportunity to remove one of their enemies and encouraged the King to punish Cromwell. The Earl was arrested, accused of treason, and then sentenced to death without trial.
Cromwell’s fate exemplifies the Old World justice of England, in which every man’s life and freedom could be crushed at the whim of the monarch. Stories like Cromwell’s motivated America’s Founders to develop airtight procedural protections for anyone accused of a crime.
In fear of kings
Cromwell was not the only person Henry VIII executed without a trial. Perhaps most horrifically, the King boiled his own cook alive without a trial.
English kings commonly circumvented due process and democratic accountability by doling out punishment without the scrutiny of a jury. Magna Carta was signed in 1215 to protect the people and their rights, but the kings flouted it. Charles I used the Star Chamber to evade Parliament and oppress his political opponents. The Star Chamber did not have a jury, and its verdicts could not be appealed and had the force of law.
His son, James II, used the judicial system to create new regulations and interpret laws in ways that favored him. He used his power over the judicial system to overrule the right to trial by a jury of one’s peers, prosecute crimes that were under Parliament’s jurisdiction, impose excessive bail and fines, and hand out illegal and cruel punishments.
Removing the right to a jury trial prevented the possibility that a jury would disagree with the heinous punishment their king wanted. It also removed the king’s accountability to the people.
A better way: John Locke and America’s Founders
James II’s actions and lack of accountability inspired the famous 17th-century British philosopher, John Locke.
James II’s abuses motivated Locke’s theories on the rule of law. In his seminal work, Two Treatises of Government, Locke defended the rule of law, the people holding corrupt leaders accountable, and the separation of powers. Locke’s ideas would find a receptive audience across the Atlantic nearly 100 years later.
The American Founding Fathers were faced with a king who repeatedly abused his power. In the Declaration of Independence, the colonists accused King George III of installing biased judges and denying the colonists jury trials and their own judicial system. In fact, crimes committed in the American colonies could only be tried in England.
When it came time to draft a constitution that would govern a new government, the Founders rejected Old World justice in favor of Lockean ideals. Democratic accountability, due process, and the right to life, liberty, and property all became foundations of the U.S. Constitution. The Founders separated the powers of government among different branches. Each branch was given the ability to check the power of the others and prevent the consolidation of power into one branch, thus preserving individual liberty.
Unlike in King George III’s England, the executive branch would have neither legislative nor judicial power. No more would Americans have to fear the executive branch tyrannically overreaching its bounds.
Article III and the Seventh Amendment ensured that Americans would not be tried without a jury of their peers.
Old World justice returns: Agencies’ in-house courts
In one corner of the American justice system, however, the Founders’ guarantee of due process has broken down.
If a federal agency decides you’ve violated the law, it may haul you before its own in-house court. This process, known as agency adjudication, casts aside due process in favor of a modern-day Star Chamber.
The adjudicative process is so patently biased against the accused that after being served a complaint, most defendants settle. If you don’t settle, you must go before an administrative law judge who is employed by the prosecuting agency. There is no jury. Any appeals go to the agency, which can rule in favor of itself. Sound familiar?
Of course, defendants in agency adjudication proceedings do not have to fear extreme punishments like being boiled alive, but they do face life-altering penalties if they lose. For example, an Arizona woman was falsely accused of child neglect by the Arizona Department of Child Safety and prohibited from working with children for the next 25 years. Pacific Legal Foundation was able to correct this injustice. Frank Black was fined $146,500 and barred from working in finance because of alleged securities law violations. With PLF’s help, he is fighting back.
Due process means a fair trial in a real court with an impartial judge and jury. Protecting the Founders’ idea of due process means ending our modern-day Star Chamber, agency adjudication. Pacific Legal Foundation’s Separation of Powers practice group is fighting to do just that every day.
