State’s Rights


In Texas, there is a statute that says that a defendant will have a jury trial unless both the State and the defendant agree not to have a jury trial. Prosecutors, many judges, and some defense lawyers sometimes say that the State has a “right” to a jury trial.

Another statute says that, when arguing a case to the jury, the State can open and close the argument. Again, many of the participants in the system say that the State has the “right” to open and close the argument.

Sometimes lawyers will tell a jury panel that the State has a “right” to a fair trial or to a fair jury.

The difference between powers and rights is that powers can be maintained using violence, but “rights” cannot.

The State has powers over the people. In America, the State has its powers because we, the people, have given it these powers. The State has the ability to maintain its powers using violence (again, because the people have given the State this ability).

The mugger in the dark alley has the power to take granny’s purse, but that doesn’t mean he has the right to do so. Granny has the right to keep her purse, but she doesn’t have the power to (unless she’s better armed than the mugger).

Like the mugger, the government chooses the weapon and the time, place, and manner of its attack. In a criminal trial, the government chooses (in the guise of the prosecutor) where and when the trial will be, decides (in the guise of the legislature) what the rules are, and decides (in the guise of the judge) what the rules mean.

Saying that the government has the right to a fair trial is like saying that the mugger in the dark alley has the right to a fair fight.

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0 responses to “State’s Rights”

  1. Interesting. How do you respond to the common construction that says jurors have the power to nullify, but not the right to do so? Jurors plainly do not protect their nullification prerogative through the use of force.

  2. Clay,

    I would say that that common construction is a fiction. Jurors have the right to nullify — this inheres in the jury system — but the government lies to them about it (and tries to make the lawyers participate in the lie), saying that this is not a right, because jury nullification is inimical to governmental power.

    If jurors’ prerogative to nullify the law it were not a right, the government would have taken it away by now.

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