May 6, 2011 – Article III, Section 2, Clause 3 of the United States Constitution – Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article III, Section 2, Clause 3

3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

There are two current political issues whose resolution hinges on the interpretation of this clause: plea bargaining and the treatment of suspected terrorists.

Plea bargaining is the manner in which criminal cases are resolved without the benefit of trial. Rather than facing the full charge or the maximum penalty, the accused can plead guilty to a lesser charge in exchange for a lighter penalty. These agreements are reached without the benefit of a bench or jury trial. Plea bargains are quite common, and in fact have become more common than trials, due to the heavy workload of the courts. Courts could not function without relying on plea bargains and therefore plea bargains are often encouraged by prosecutors and judges. So while the need for plea bargains is real, the lingering question remains as to whether they are Constitutional according to Article III, Section 1, Clause 3. The act of plea bargaining has not been found to be unconstitutional, but that does not mean we should accept the practice.

No defendant can be coerced into a plea deal and therefore remains able to choose a trial and reject a plea deal. This supports the constitutionality of the plea bargain; but my reservations over the practice still remain. I begin with the assumption that the Founders established a Constitution aimed at establishing justice and that the institutions and practices in the Constitution can lead to justice if followed as the Founders had intended. Therefore, if read literally, the Founders can be said to have believed, as consistent with the excerpt under consideration, that the best pathway to justice is through a jury trial in criminal cases. If this is so, then we are left to wonder whether plea bargains abandon the Founders’ goal of justice or whether plea bargains abandon those institutions and processes the Founders thought would lead us to justice. In accepting plea bargains as a valid way to resolve criminal cases, have we replaced our justice system with a mere legal system?

No one will doubt that the eradication of terrorists is necessary and that playing by the rules severely hamstrings America’s ability to protect itself. For this reason we have found it necessary to not offer jury trials to many of those in custody. But the same questions that were raised above can be raised here: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that process compromise the search for a just resolution? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism is the only means to achieve justice?

The two most popular responses are that those we have been arrested are enemy combatants and should therefore be dealt with in a military setting or that the rights guaranteed in the Constitution only apply to citizens. The first of these is the most defensible although it is still in question who determines if someone is an enemy combatant, how the term is defined, and if the who and how are done through means consistent with Constitutional principles. The second is more difficult to defend simply because in Article III, Section 2 the Constitution gives jurisdiction to federal courts in cases involving a state, or the citizens thereof, and “foreign states, citizens, or subjects.”

So now it is time to disappoint the reader I am afraid. I have taken this clause of the Constitution as far as I am capable and thus do not have a definitive answer to the questions I have raised. I do lean towards particular answers, but because I cannot be for certain what the Founders would have said on the matters, I must remain humble and not express those inclinations until more searching has been done. But, Article III, Section 3 should provide additional insight.

My intention for this essay was to show how this clause applies to current political events and uncover the fundamental questions that must be answered in order to reach some resolution. So let me repeat the most fundamental questions I see for this clause: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that system compromise the search for justice? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism or overworked courts is the only means by which we can achieve justice? And, if we answer in the affirmative to the second question, must we say that the Constitution, if strictly followed, cannot lead us to justice in all situations?

Raising and pursuing these fundamental questions in a slow, deliberate manner within the confines of care, reason, and logic—without employing clichés or rhetoric—is the true intention of the Founders. Our Founders were deep and original thinkers who understood the fundamental questions and the importance of asking them. Their search for truth was more important to them than the personal attachment they felt to a particular position. We too should be so brave!

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

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2 Responses to “May 6, 2011 – Article III, Section 2, Clause 3 of the United States Constitution – Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston”

  1. Barb Zakszewski says:

    Very thoughtful and thought-provoking essay indeed!! And very timely, given the extraordinary events of the last several weeks. I would imagine to find out what the founders and framers intended here, we would have to review any publications having to do with the Constitutional Convention itself, or something in the Federalist Papers.. I imagine, as Professor Scott indicates there are no easy answers to the questions posed above. However, we are living in dangerous times and perhaps we must strive to answers these questions best we can.

  2. William says:

    Professor Scott complicates this issue more than is requisite for a quality understanding.

    First, plea bargaining is easily dispatched via the wording of Article III, Section 2, Paragraph (clause) 3. Just for clarification please note that the item discussed is in Section 2, not as referenced.

    A plea bargain is Pre-trial action. Thus, if claimants (state in criminal matters) and the accused resolve differences, pre-trial, there is no requirement for a jury. Our jurisprudence system is for the establishment of justice. This precludes two conditions. Our system is not to prove guilty but rather to protect innocence. Secondly, it is not essentially a system for the imposition of penalty, but rather for the maintenance of justice.

    The maintenance of justice rest in a subtle but overriding premise. The statement in the Declaration of Independence “all men are created equal” does not, as many (including scholars) presume imply equity under the law. Rather it suggests, rather clearly, that ” all men are created” equally endowed with rights to Life, Liberty, and the Pursuit of Happiness.

    Hence, an asserted claim against another may be dispatched “per-trial” or upon demand of trial. The Constitution requires trial by jury, if the demand for trial is made.

    Now, on to the second issue. The tricky issue of terrorist.

    Let’s eliminate a a subtle and somewhat hidden premise presented by Professor Scott. I quote

    “No one will doubt that the eradication of terrorists is necessary and that playing by the rules severely hamstrings America’s ability to protect itself. For this reason we have found it necessary to not offer jury trials to many of those in custody. But the same questions that were raised above can be raised here: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that process compromise the search for a just resolution? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism is the only means to achieve justice?”

    The hidden premise is that security maybe ought to supersede justice. Both the Declaration and the Constitution contradict that notion. Although security is surely a purpose for government Justice certainly prevails in status. “We the People of the United States, in Order to form a more perfect Union, establish Justice, …secure the Blessings of Liberty to ourselves and our Posterity…”, etc.

    Again, the judicial system exists to protect rights, and administer penalty BEYOND justice.

    It is relevant to comment briefly on two of the sources of terrorism; Internal and external. Internal are criminal actions taken within the United States of America, by citizens, sympathetic to foreign interests. External are criminal actions taken by foreign born persons, upon interests of the United States of America, either without or within the border of the USA.

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