Inconvenient Constitutionally Guaranteed Rights Must Be Ignored

Quote of the Day

Wednesday’s arguments focused primarily on this first theory: that adjudicating securities fraud before an administrative law judge violates the right to a trial by a jury. This right arises from the Seventh Amendment, which provides a jury trial in some civil cases. Current Supreme Court precedent breaks it down like this: When the U.S. government seeks to enforce a congressional statute that prohibits or punishes wrongdoing, it is enforcing “public rights.” And these enforcements don’t implicate the Seventh Amendment. That means they can be brought within an agency, before administrative law judges, who are shielded from removal by the commission. As Kagan put it on Wednesday, quoting major precedent, the Seventh Amendment “is no bar to the creation of new rights or to their enforcement outside the regular courts of law.”

This system is the only plausible way that the executive branch can carry out the duties assigned to it by Congress. Federal agencies rely on administrative adjudication to penalize polluters, scammers, abusive employers, crooked banks, and a whole range of unsavory parties. Obviously, these agencies can’t send anyone to prison, and their procedures must comply with due process. Their goal is to catch countless cases that would otherwise slip through the cracks—often because the harm involved applies to the public at large, or to potential harms that haven’t yet caused an injury. If the government had to bring these cases in federal court, the judiciary would be overwhelmed, its docket flooded with disputes that it lacks the time or resources to resolve by trial.

Mark Joseph Stern
November 29, 2023
The Supreme Court Has Figured Out How to Gut a Bunch of Crucial Federal Laws at Once

Emphasis added.

To refresh your memory on the 7th Amendment:

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.

I’m not a lawyer, but the only exemptions to a jury trial granted by the 7th Amendment is if the value must be less than or equal to $20 or the controversy is not a suit at common law. “At common law” appears to mean “cases that triggered the right to a jury under English law”. Article III protects the right to a trial by jury for all criminal cases.

So what are these regulations that Stern is so upset about? Are they criminal or are they civil? It would appear to be criminal cases to me. They are violations of laws created by congress, right?

So, it would appear to me that the only exemption Stern can hang his hat on when he claims the 7th Amendment doesn’t guarantee a jury trial are those trials which involve less than or equal to $20.

Of course he doesn’t try to explain why these regulations are exempt. He just rants about how it is not practical to allow the defendants to have their right to a trial by jury. In other words, inconvenient constitutionally guaranteed rights must be ignored..

I suspect this mindset is common in those opposed to the 2nd Amendment as well.

Perhaps he would revise his option at his own trial.


19 thoughts on “Inconvenient Constitutionally Guaranteed Rights Must Be Ignored

  1. Perhaps you could say that the 7th Amendment is…

    …an inconvenient truth?

    I’ll see myself out.

  2. $20 in 1789 was appropriately the price of one ounce of gold, we use much smaller dollars these days. So trials for $20 seem wasteful, but for an ounce of gold ($2050) makes more sense.

      • Using an originalist interpretation, the $20 referenced in the Constitution was representative of the time when a dollar was fixed to a quantity of gold. So, you don’t need a Constitutional amendment if the Supreme Court determines that the $20 specified is twenty gold-backed dollars, not the unmoored dollars we’ve been enjoying since FDR jiggered the exchange and Nixon cast us adrift.

        Originalism has been good for the 2A. It would be hypocritical of us to elect to go with the “living constitution”/“living dollar” theory when it is inconvenient for us.

        • I meant that the constitution should be amended to say one ounce of gold. Giving SCOTUS the leeway to say $20 really meant one ounce of gold is too risky a precedent.

          • I dunno… having the SCOTUS say Federal-Reserve-notes are not the same thing as the Constitutional-dollars might open the door to declaring that Federal-Reserve-notes are not actually constitutional for the purposes of that “tender in payment of debts” thing if there is not a fixed relationship between the face value and an equivalent silver or gold coin.

            Article I, section 8: The Congress shall have Power To […] coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

            Article I, section 10: No State shall […] coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; […]

            I think there are two ways this could go, and in both of them, they can’t have their cake and eat it too.

          • Ya, Tirno. That one was a fun argument. It seems the federal government was given the power to make money. But not declare it as legal tender.
            It was correctly argued that if congress could coin/make money and declare it as legal tender the states would no longer be independent. Since the constitution does not repeat itself. The word make under article1 sec.10, means Allow.
            No state shall allow anything except gold and silver coin as a tender in payment of debt.
            A state tax collector went to a business owner in San Francisco in the 1800’s. Told the owner he owed the state a $165.00 dollars in taxes. The owner said OK, produced a $165.00 dollars in federal notes. The tax collector told him he could not except it, as that would be making something other than gold and silver coin a tender in payment of debt.
            Off to court. Where they cleared things up by saying that taxes are not debts under the meaning of the term “all debts public and private”, on federal reserve notes.
            Clear as mud.
            I argued that I couldn’t pay my vehicle registration because the government no longer made gold and silver coin. And taxes weren’t debts anyway. Cause if they were. No one could ever satisfy the debt.
            I ended up paying. But it was fun watching the judge with his head in hands.

    • The inflation the government has created has also created this problem for them.

  3. When so many “crimes” have been created by government that “If the government had to bring these cases in … court, the judiciary would be overwhelmed, its docket flooded with disputes that it lacks the time or resources to resolve by trial” then maybe the government has made too many things crimes.

    • Thank you!
      And since when is congressional law, not a law? But a public right? Huh/what?
      Methinks this is one of those divine right of kings things, where they make themselves judge, jury, and executioner.
      (Financially speaking of course.)

    • Not enough publicly funded judges and prosecutors? Guess we’ll need to break the state monopoly on those, and start having private judges and prosecutors just like we have private defense attorneys as well as public defenders.

      • Ummm, we already do.It’s called Binding Arbitration, and we all signed up for it when we signed onto cell phone contracts and cruise ship contracts among other things.
        To sign up for that is to say the decision of the arbitrator has the binding effect of a state Supreme Court, without all that judicial review we get from the Appellate Court. We also aren’t guaranteed a real judge, so if your judge is just a lawyer, good luck on whether he applies the various rules correctly. If he hasn’t a clue about the proper application of the Hearsay Rule, you’re screwed.

        My Administrative law professor said that criminal law could be easily removed from the Article III courts because the Police are already an Executive Function (President or Governor). Set up a series of Administrative hearings and the Defendant won’t see a real judge until “the Administrative remedies are exhausted.
        The main lesson I learned from that class is — all the Constitutional protections we learned about in Constitutional law? they don’t count in an Administrative hearing,.

        The Constitution is just putty in too many people’s hands.

    • “The Floodgates of Litigation”
      Four words that scare judges more than anything else.
      Tell them more people will come to court to sue and they will rule against the right quicker than a Doctor in the 1960’s with draft-aged sons could find a heart murmur.

  4. That’s exactly what we need. A short fat lesbian like Kagan telling us government congressional law, isn’t law. And that somehow enforcement of those not-laws can be enforced by government run not-courts.
    Have somehow all the lawyers in this country forgot that ALL f–king government action can only be pursued under the constitution?
    Or as Tirno suggests. If the government hires it done. It’s not the government doing it?
    And the bitch is quoting long standing precedence?
    “is no bar to the creation of new rights or to their enforcement outside the regular courts of law.”
    OK, lets go there. Since all power is inherit in the people. That would make it all good to punish government criminals without/outside a legal government court? Great!
    Looks like we won’t be needing those trials after all, Joe!
    Kagan just said there is major decisions that allow us the right to make ourselves judge, jury, and executioner outside the regular court system.
    Wow, who would have ever thought it!
    Guess all those lynchings down south and rustles ropes were legal after all?
    It would seem the longest standing precedence is that government is so full of shit, its ear wax is brown.

    • Yes, that’s why we had so many lynchings – if the people had to bring these cases to court the judiciary would have been overwhelmed, so we the people just did as Stern suggests,

      • This can only mean Stern feels invisible, isolated and immune from the consequences of his Unconstitutional acts, and the people who would insist he observe and follow the Constitution.

  5. The government lawyer is correct that finding for Jarkersky would make government as we know it impossible. That is a good thing. The options are radical simplification or collapse.

    Unfortunately, this is also why the Supremes won’t go there.

  6. Obviously, these agencies can’t send anyone to prison

    So says Mark Joseph Stern.

    Really? Have you ever tried not complying with the orders of an administrative judge, or perhaps not paying the levied penalty?

    Of course, prison would only be an option if you survived the arrest process.

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