This is an abomination that, thanks to the Sixth Amendment, could not happen here in the United States.
Some news from Britain, courtesy of the BBC:
Justice Secretary David Lammy is proposing to massively restrict the ancient right to a jury trial by only guaranteeing it for defendants facing rape, murder, manslaughter or other cases passing a public interest test.
An internal government briefing, produced by the Ministry of Justice (MoJ) for all other Whitehall departments, confirms plans to create a new tier of jury-less courts in England and Wales.
The new courts would deal with most crimes currently considered by juries in Crown Court.
But the MoJ said no final decision had been taken by the government.
The plans, obtained by BBC News, show that Lammy, who is also deputy prime minister, wants to ask Parliament to end jury trials for defendants who would be jailed for up to five years.
This is an abomination. But it’s an abomination that, thanks to our remarkable Constitution, simply could not happen here in the United States. Our Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Founders were obsessed with juries. They complained in the Declaration of Independence about the bad British habit of “depriving us in many cases, of the benefits of Trial by Jury,” and, in 1791, when it came time to assemble the Bill of Rights, they filled almost half of that document with provisions that were directly or indirectly related to that system. This was not an accident, or the anachronistic quirk of a long-gone era. To them, juries were so fundamentally important to the operation of a free country that they superseded government itself. As was noted in Duncan v. Louisiana, this sentiment was universal. Irrespective of their character, all of:
the constitutions adopted by the original States guaranteed jury trial. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.
Sometimes, Americans are shocked to hear me include jury trials when I list fundamental rights that are being abridged in other countries. But they shouldn’t be. Certainly, the BBC’s reference to “the ancient right to a jury trial” is correct as a descriptive matter. But as a legal proposition, it is no more an enforceable “right” in contemporary Britain than is this year’s top tax rate. Unlike in the United States, where the protection sits above the transient political process, the provision of juries in Britain is little more than the quotidian choice of the incumbent government. If, as seems now to be happening, the British government decides that juries are inefficient or undesirable in a particular situation — or, even, per se — it can abolish them at will.
And it’s not just juries. Once upon a time in Britain there was also an “ancient right” to free speech, an “ancient right” to bear arms, and an “ancient right” not to be detained indefinitely without trial. Now, those are all memories. Something bad happened — a “hate crime,” a mass shooting, a terrorist attack — and they were jettisoned at the first opportunity. To avoid this happening in the United States, we wrote down our Constitution. It worked.
On today’s Editors podcast, we touched briefly on the question of whether America is a “propositional nation.” I argued that it is, and pushed back against Rich’s suggestion that, in 2025, the U.S. isn’t different enough than other Western countries to inject this term with meaning. Among the arguments I made was that, on separation of powers, speech, the right to bear arms, jury trials and more, America is just different than the rest of the world, and that this difference is in large part the product of its commitment to a set of ideals. I did not know, when I said that, that the British government was getting ready to so emphatically bolster my point.