America's Unwritten Constitution: The Precedents and Principles We Live By (69 page)

America’s Constitution has always treated these two cases differently, in keeping with other pro-defendant asymmetries in the criminal-justice system, such as the
Winship
rule that whenever reasonable doubt exists, a criminal defendant must be acquitted. Jurors in criminal cases have always enjoyed an absolute right to say no, and when the jury has said no, the no is decisive, and the defendant goes free. But jurors have never had symmetric authority to compel criminal punishment if other governmental actors favor mercy. In such cases, despite a jury’s willingness to say yes to punishment, other actors, including judges, may properly say no, absolutely and irreversibly.
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The Constitution does not say all this in so many words. But this is the best way to understand the document in light of the post-Tudor history of the Anglo-American jury, a history familiar to the document’s drafters and ratifiers. Even when seventeenth- and eighteenth-century English juries refused to convict defendants who seemed guilty to the presiding judges, English law treated the resulting acquittals as sacrosanct. When some judges tried to force jurors to return guilty verdicts, and/or to punish jurors for acquitting obviously guilty defendants, these judicial efforts were rebuffed—most famously in a 1670 lawsuit known as
Bushell’s Case
, which made clear that the bench could neither coerce nor punish a jury bent on acquittal, even if the defendant’s technical guilt under the law as written was obvious. Thus, if a resolute English jury believed that the defendant should prevail, it could vote its conscience with impunity, and the defendant would go free regardless of the views of the Crown or the bench.
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These jury privileges and immunities were acted out on a grand stage in 1688, when the soon-to-be-deposed King James II prosecuted certain Anglican clerics who had expressed opposition to his religious policies. While the trial judges disagreed among themselves about the relevant legal
issues, the twelve jurors in the
Seven Bishops Case
unanimously acquitted, delivering one of the most celebrated rebukes to the Crown in English history and setting the scene for the Glorious Revolution that soon followed.

In more prosaic cases, English juries often showed mercy to guilty defendants by convicting prisoners only of noncapital offenses even when capital crimes had occurred. For example, certain acts of theft were punishable by hanging, but petty thefts received more lenient treatment. Officially, the difference between life and death hinged on the value of the stolen item, which was ostensibly a simple matter of fact to be decided by the trial jury. Exercising his conscience under the guidance of the presiding judge, many an English juror pretended that valuable goods were not so valuable in order to spare the life of a pitiable soul, a practice that Black-stone famously described as “a kind of pious perjury” that reflected the humanity and decency of English juries. Blackstone’s memorable phrase is telling. In one sense, the jurors were acting falsely—committing perjury. But at an even higher level they were acting nobly and virtuously, conscientiously—piously.
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These basic English rules also applied in eighteenth-century America. In the 1730s, two successive New York grand juries refused to indict the publisher John Peter Zenger, who had printed tracts harshly critical of the colonial governor, William Cosby. When Cosby’s attorney general used another legal device (an “information”) to detour around grand jurors and trigger a criminal trial, the twelve-man trial jury famously acquitted, despite Zenger’s technical guilt under extant libel law as expounded by the trial judge. The acquittal stuck and Zenger went free, thereby dramatizing the authority of pro-defendant jurors to uphold truth and justice (as they understood these things) against law (as understood by the judge). History repeated itself in the 1760s and early 1770s, as colonial grand jurors refused to indict and colonial trial jurors refused to convict leaders of the Stamp Act protests and other patriot speakers and printers.
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Though this jury power to just say no to a criminal indictment or prosecution was not explicitly written into the original Constitution or the Bill of Rights that immediately followed, it surely formed part of the implicit understanding of the words “jury” and “grand jury” that did appear in these documents. These words did not describe wholly new institutions being
conjured into existence. (Compare, for example, the novel American presidency.) By using words with deep roots in American practice, the fram-ers implied that these traditional American institutions would continue to operate under the new system much as they had before—unless, of course, some other implicit or explicit element of the Constitution indicated otherwise on some particular issue of jury law.

ALTHOUGH JURORS
under traditional Anglo-American law had the last word whenever that word was “acquittal,” the matter was entirely different if the jury wanted to convict. Through a variety of procedural techniques, English presiding judges could effectively spare defendants in the interests of justice, as the judges conscientiously understood those interests, even if jurors seemed bent on a more punitive course.

For starters, a trial judge who believed that a defendant did not merit punishment—as a matter of either strict legal interpretation or more equitable considerations of justice and fairness—could simply quash an indictment or use other procedural tools to dismiss a case before it ever reached the jury. Some of these judicial rulings functioned as acquittals, effectively ending the litigation in the defendant’s favor; other kinds of rulings allowed the prosecutor to try again in a fresh proceeding. Alternatively, a trial judge could send a case to the jury with strongly pro-defendant commentary upon the evidence and pro-defendant legal instructions, reserving to himself authority to do justice even if the jury convicted. In any capital felony case in which the jury brought in a guilty verdict, the presiding judge could postpone (“respite”) the execution and submit a report to the king, who thereupon issued a pardon as a matter of course.
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Different procedures applied in misdemeanor cases, but here, too, judges could effectively overrule jurors so long as these overrulings were pro-defendant. Thus the King’s Bench regularly set aside jury verdicts of guilty, sometimes setting the defendant free and other times setting the case for retrial. This basic pro-defendant asymmetry was highlighted by Black-stone’s
Commentaries
: “[I]n many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king’s bench.…But there hath yet been no instance of granting a new trial, where the prisoner was
acquitted upon
the first. If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation.”
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THE BASIC PRO-DEFENDANT ASYMMETRY
within the judicial branch fits snugly within the Constitution’s general structure, which situates the irreversible pro-defendant powers of judges and juries alongside irreversible pro-defendant powers of other government organs. In a nutshell, federal criminal-law punishments must clear a unique set of six hurdles—two in the legislature, two in the executive branch, and two in the judicial system. Unless the federal government clears each and every one of these hurdles, the criminal defendant walks free. Every hurdle is thus positioned in favor of the criminal defendant’s life and liberty and in a manner that privileges the merciful consciences of the persons involved in ordaining and executing punishment. Animated by broad themes of populism, bodily liberty, and conscience, the system is designed so that no criminal will be subject to severe pain, extended imprisonment, or death unless the American people as a whole approve of the general punishment policy and various especially attentive and conscientious American individuals approve of the particular punishment imposed upon a given person.

NO PERSON MAY BE
criminally punished in federal court for misconduct unless both houses of Congress have affirmatively voted to criminalize this particular misconduct. This basic structural postulate marks federal criminal law as distinct from both federal noncriminal law and state criminal law.
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On the noncriminal side of the docket, federal courts have long been free to fashion certain legal rules regulating misconduct even in the absence of specific congressional authorization. For example, the Supreme Court has itself promulgated a rule allowing victims of improper governmental searches and seizures to recover civil damages from the federal officers involved even though nothing in the Constitution or in federal statutory law explicitly creates this species of federal civil liability. This civil-liability rule is simply one component of what is generally referred to as “federal common law”—a set of judge-made regulations that Congress may modify or repeal but need not affirmatively enact in the first instance.
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Such “federal common law” has never had any proper place on the
criminal
side of the federal docket. No federal court may hold a federal officer criminally liable for an improper search or seizure, even one that flagrantly violates the Fourth Amendment, unless Congress affirmatively provides for such criminal liability. Structurally, this rule has guaranteed that no person may be sent to the gallows or to prison unless both houses of Congress—and especially members of the lower house, the one most directly accountable to the people—have specifically authorized this grave intrusion upon bodily liberty.

The mere ability of the Congress to overturn a judge-promulgated criminal law code would not have adequately guaranteed broad populist approval of federal penal policy. Imagine a counterfactual world in which federal courts were permitted to promulgate a (possibly harsh) federal criminal code on their own authority—a world in which Congress is allowed to repeal the judges’ criminal code but need not affirmatively enact the code itself. In such a counterfactual world, harsh penal policies might prevail even if the American people as a whole broadly disapproved of these policies: Even if every single member of the House and nearly two-thirds of the Senate voted to repeal the judge-fashioned criminal code, the code could nevertheless remain in force so long as the president used his veto pen to side with the judges. But thanks to our Constitution’s actual structure, bodily liberty has received far more protection. Noncriminalization is the universal starting point, a default rule that can be displaced only if all three elected branches—the House, the Senate, and the president—affirmatively agree that certain specified criminal misconduct justifies death or imprisonment.
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Many scholars have suggested that the Constitution’s general requirement of bicameralism and presentment for ordinary lawmaking was designed to produce fewer federal laws—and especially fewer intrusive federal laws—than would have been generated by a single unicameral process with no possibility of veto. Stated this sweepingly, such suggestions overlook the fact that America’s segmented lawmaking process can at times lead to more law, not less. If the House favors intrusive rule A while the Senate prefers intrusive rule B, and the president fancies intrusive rule C, perhaps nothing will pass all three chambers. But perhaps A, B, and C will all pass as part of an omnibus package. A priori, it is hard to say whether
a three-pronged lawmaking process will lead to more or fewer intrusive rules.

Whether it leads to more or fewer laws in general, or more or fewer intrusive laws in particular, however, is not the point. This three-pronged system was designed to result in fewer
unconstitutional
or
unconscionable
laws than other systems. If any one of the three lawmaking chambers deems a particular proposal not merely intrusive but actually unconstitutional or truly unconscionable, then an omnibus bill including that proposal is not likely to pass—so long as each chamber comprises individuals of strong conscience and constitutional fidelity.

The structural principles that we have been analyzing distinguish federal
criminal
law (where judges may never take the initiative in defining and proscribing misconduct) from federal
civil
law (where judges may sometimes do so). These principles also differentiate
federal
criminal law from
state
criminal law, which has typically recognized the propriety of judge-fashioned common-law crimes. In almost no state has the judiciary been as insulated from popular sentiments as in the federal system, where judges reach the bench with no direct input from the lower house of Congress and then serve for life. If one key structural idea is that criminal law works best when it has broad popular support, it stands to reason that unelected and insulated federal judges cannot and should not play the same broad role that more democratically accountable state judges play in defining criminal liability.

THE ESPECIALLY STRICT REQUIREMENT
of
legislative
bicameralism in federal criminal law is mirrored by unique rules of
executive
bicameralism that apply whenever potential bodily punishment is at issue.

Let’s first recall the general rules that apply outside the criminal context. Ordinarily, even if a president strongly opposes a given statutory proposal to burden American citizens in some way, that burden might nonetheless win out. True, once the burden-creating statute passes both houses of Congress, a president can veto the bill. But Congress can override this veto, and after that the president’s hands might well be tied. If the law specifically requires the president to take certain enforcement measures, the president must typically enforce the law, howsoever distasteful to him enforcement might be. If the president, after careful legal analysis, deems
the burdensome statute not merely distasteful but affirmatively unconstitutional, perhaps he might initially decline to enforce the statute, in keeping with his oath to obey the Constitution above all else as the supreme law of the land. But if the Supreme Court later rules against the president’s constitutional objections and orders him to carry out the law as written, any continued presidential refusal to enforce the statute would be virtually unprecedented, and might well merit presidential impeachment and removal. Moreover, the burdensome law might be structured so that presidential enforcement is unnecessary. Many federal noncriminal laws enable ordinary citizens outside the federal executive to sue directly to enforce the laws’ commands. (Antitrust laws and antidiscrimination laws are obvious examples.) In all these ways, private citizens might be intruded upon even though the president emphatically opposes the intrusion.
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