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# *A History of Repeated Injuries*

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**Tommy Berry:** Hello and welcome to this Cato Institute webinar. Happy July 4th week. Happy start of the 250th July 4th week. And to commemorate this very historic week and this very historic upcoming day, Saturday, we’re gonna be talking about the Cato Institute’s new edited volume, *A History of Repeated Injuries: Threats to Liberty Since American Independence*.

This book came about because we at the Cato Institute want to, to celebrate our history, wanted to evaluate the Declaration of Independence and how we think about it today, and we wanted to tie that in to the work we do at the institute on a daily basis, which is think about policy from first principles, and think about how, in some ways, there’s nothing new under the sun, and many of the challenges that we face, in the public policy realm, in the realm of constitutional rights, can be, analogized to similar problems that we faced going back 250 years or even more.

I’m Tommy Berry. I’m Cato’s director of the Robert A. Levy Center for Constitutional Studies, so I work a lot on individual rights, filing amicus briefs in the courts on First Amendment issues and on separation of powers issues. Very relevant, to thinking about the principles in the Declaration.

And I’m joined by two of my excellent colleagues, who also contributed chapters to, this book. We have David Bier, who is the director of immigration studies and occupies the Sell’s Foundation Chair in Immigration Policy, and we have Brandon P. Buck, who is a research fellow in foreign policy studies here at the Cato Institute.

We were supposed to be joined by our former colleague, Joshua Louks, who’s now at the Texas Public Policy Foundation as an energy policy scholar. He co-authored a chapter in this book with our Adam Michel on the history of taxation. Unfortunately, he’s ill today and not able to join, but I’ll briefly summarize his chapter as well, at the end.

So I’ll, I’ll start by kind of summarizing what’s this book about, why did we decide to make it, and then I’ll go through my own chapter in a little bit more detail, which is on the Seventh Amendment right to a civil jury right.

So, as many of you know, the declaration has a list of grievances. In some ways, the most fun part of the declaration, because it’s the complaint part of the breakup letter. It’s here’s all the reasons why this isn’t working anymore, all the ways that you’ve mistreated us, King of England, and all the reasons why we are justified, in cutting off our, our, our binds of, political allegiance, with the king and with England.

And if you go through those list of grievances, which I encourage everyone to do this week, and especially on Saturday, you’ll see some really striking parallels, with what might be considered, potential complaints against the US government today.

So, for David’s chapter, he has endeavored to prevent the population of these states, obstructing the laws for naturalization and refusing to path, pass others to encourage their migrations. Another chapter, imposing taxes on us without our consent. Kept among us in times of peace, standing armies without the consent of our, our legislatures. Here’s a very relevant one. Cutting off trade with all parts of the world. Depriving us, in many cases, of the benefits of trial by jury.

So, to understand the Constitution, which I work on, you really have to understand what it was responding to, and so many of the, both the structural elements of the Constitution and the particular individual rights enshrined in the Constitution were responding to these grievances, these specific injuries, trying to ensure that they didn’t happen again.

In some cases, they were successful, but in some cases, the natural creep, of authoritarianism, the natural creep toward consolidated power and towards a stronger executive has meant that those same trends are recurring, and that we’re seeing some of the same, usurpations as the, as the, Thomas Jefferson put it, today.

So my chapter focuses on the civil jury right. This was considered absolutely fundamental at the time of the, of the framing, even going back to English time. And juries were seen not just as n- performing the narrow task of finding facts and letting the judges apply the law, decide what’s just, but no, juries were seen as an important democratic check against potential tyranny, to evaluate not just the facts, but also the law and also whether a prosecution was just.

So a very well-known trial that would’ve been, in common knowledge amongst the framers and amongst the population of i- the United States was the trial of William Penn in England, for supposedly preaching against the tenets of the Church of England. And that was an example where by the letter of the law, he may have been guilty, but the jury nonetheless acquitted him, pretty clearly because he was, it was seen as an unjust prosecution. So an early example of religious liberty principles being defended not by any bill of rights, not by any democratic vote of the populace, but by a specific, a specific subset of people deciding this particular prosecution is unjust.

That tradition continued in the colonies. A very famous trial of John Peter Zenger for libel was also well known amongst the framers by, amongst Thomas Jefferson and amongst the people who ratified the Constitution. This was a trial for libel of allegedly slandering, the governor, Governor General of New York State at the time. Although it was certainly very, vociferous criticism, the one aspect of this libel trial that was unfair was that the criticism was correct. Yet at the time, under the common law, truth was not a defense to libel.

Nonetheless, the attorney for John Peter Zenger argued that he should be, found, that he should not be forced to pay, that he should not be found liable of, of, slandering, the Governor General, and the jury agreed with him. The jury held that, he would not have to, pay any damages. Pretty clearly an early example of defending an individual right, in this case the freedom of speech, based on ideas of, of justness and fairness, not narrowly applying the facts, and just simply accepting what they were told, was the law of the time.

So the Framers were a- acutely aware that when, tyrannical laws, creep in, or when they are applied in an unjust or tyrannical way, a jury was a final gut check. And that having local juries was the best way to ensure that the norms of decency and basic rights of Americans would not be violated, so long as your peers, were deciding whether, whether it was just for you to be either criminally or civilly charged.

Now also the complaint for depriving us of civil jury rights was because increasingly the king realized this and looked for ways to avoid jury trials, and he did this in a couple ways. One of the main ways was diverting more and more cases into the so-called vice admiralty courts.

These were courts, supposedly ostensibly created just for a narrow category of violations at sea, things where a ship is seized for allegedly smuggling or evading trade barriers or things like that. But increasingly, more and more violations were essentially, through legal fictions, treated as if, they were sea violations. Sometimes people who had violated, allegedly violated other laws were n- the, the English would wait to seize them until they were on a boat, and then they would say, “Okay, it’s a vice admiralty case now.” And the key aspect of vice admiralty courts is they had no jury, and also they were often in inconvenient places. The main court was in Halifax, Nova Scotia, so people were often forced to have their trial all the way up there, even if they were, seized way down in the Carolinas or in Georgia. Incredibly inconvenient.

So complaints against these vice admiralty courts, complaints against this process by which the English Crown was making allegations against Americans and no American jury could evaluate that, were a key aspect of the declaration.

And similarly, one of the so-called Intolerable Acts, was a law that said if a representative of the English government is charged with a crime committed in America, they could go back to England and have their trial there and have the jury, be English, members of the, the English polity rather than the American polity. This was sometimes called the Get Away With Murder law, because again, the concern was that local juries are key to fairness, both because, the tri- having the trial closer to where something happened means it’s more likely that the witnesses would be able, would be available to testify, but also that the community where an event happened should be the judge, not just of facts, but of the justness of a prosecution, and that going back to England might mean you would get, an unfairly biased jury in favor of, the English defendant, the, the English government official. More likely that they would, if not get away with murder, get away with some pretty bad stuff in the American colonies.

So nonetheless, although the Constitution as originally drafted included a right to criminal juries, it did not in the pre-Bill of Rights Constitution, protect the right, guarantee the right to civil juries, and this was a major, major complaint of the Anti-Federalists. Gouverneur Morris, Elbridge Gerry, argued that, it was such a flaw that the Constitution should not be ratified, until a civil jury right was added.

And indeed, Alexander Hamilton in one of the Federalist Papers, s- assured that this would be one of the first tasks, for the new Constitution, and it was indeed enshrined in the Seventh Amendment, which guarantees that all suits at common law where the amount in controversy is, twenty dollars or greater shall be tried by jury.

Now, where does that bring us to today? For a while, this was a fairly straightforward rule. Juries evaluated, suits both between individuals, but also when the government goes after someone, not as a criminal prosecution, but in a civil, lawsuit where the government alleges that you violated some law and you should have to pay a penalty.

But starting in the early twentieth century and really picking up steam in the New Deal, we started to get administrative agencies, the ones you know, like the FTC, the FCC, the SEC, et cetera. They started to think that it was inconvenient, to bring all of their, civil charges in federal court, and they created this system of, administrative law judges, agency adjudication, adjudication within the executive branch rather than within the judicial branch of Article III.

And not only were the procedures in those, adjudications less friendly to defendants, not only were the judges, more sympathetic to the government because they were indeed part of the executive branch, not independent life-tenured salary-protected Article III judges, but perhaps most egregiously, those procedures did not have independent juries of your peers. The facts were found by the administrative law judges, the same judges finding the law.

Now, in the New Deal, most often those types of, procedures at least were limited to things like losing your license, for example, losing your license to trade if it was an SEC, matter, et cetera. But increasingly towards the late twentieth, early twenty-first century, they would add on more and more powers that and more and more penalties, that could be inflicted by these agency adjudications.

And most infamously are the one that finally led the Supreme Court, to take a look at this and start to pull back on this process was that the Dodd-Frank Act in 2010 gave the SEC the power to impose monetary penalties for fraud and other violations, alleged violations of the securities law via agency adjudication rather than via Article III, courts with an independent judge and jury.

And that is what led to complaints that now they had crossed the line, now they had violated the Seventh Amendment, because if you looked at the common law history, a, government prosecution, a government attempt to not just take back what you have stolen, but fine you, punish you, make an example of you, deter you, that that was a classic suit at common law, that that would’ve been understood just like what the, vice admiralty courts were doing, that that would’ve been understood as exactly what the Framers wanted the Seventh Amendment to prevent, to require that to be in a, in a jury trial.

So that led to the Supreme Court’s decision in a case called SEC versus Jarkesy a couple years ago, and the Supreme Court did indeed hold, that so long as penalties brought by an administrative agency are punitive, so long as they serve some deterrent effect, those are suits at common law, and you need an Article III jury.

So we are still in the process of extending that holding to other agencies. This is a long process of case-by-case adjudication, and to determine, whether you have a jury trial or not depends on that history of the common law, depends on that history that they were complaining about.

But this just goes to show that we have a long way to go to get back to the original vision of the Framers, which was that any case, where the government is trying to make an example of you, belongs in an Article III court, with a civil jury.

So I’ll pause there and pass it along to David.

**David Bier:** Thanks, Tommy. That was excellent. My essay, on immigration has five basic, sections or premises.

First, the, the Founders believed free immigration was central to the purpose of the founding of the United States. And second, they understood the consequence of that view would be that people of all classes and nations and religions and political views would be coming to the new country in huge numbers. And third, this belief was not merely aspirational. They actualized it by establishing the freest immigration system in the entire world. And, and fourth, the, the Founders’ policy was a massive success, helping America become the most powerful, prosperous, and free country in the world. And, and finally, fifth, it ended because of politics, not policy failure.

So just to start at the top, first, you know, the Founders believed in free immigration and considered it central. It wasn’t an ancillary, issue to them. It was central to the purpose for becoming the United States in the first place.

In, in *Common Sense*, the, the 1776 pamphlet that inspired the Revolution, Thomas Paine called for America to provide an asylum for mankind. Samuel Adams, rallied Bostonians by reiterating the same line later that year, “Our contest is not,” this is what he said, “Our contest is not whether we ourselves shall be free, but whether there shall be left to mankind an asylum on Earth for civil and religious liberty.” John Adams, Washington, Jefferson, others all repeated this claim that America exists to provide an asylum, from tyrannies around the world.

And, and given this attitude, it’s no surprise that, Parliament’s obstruction to free immigration and the naturalization laws made it into the Declaration of Independence. The declaration itself describes the rights of mankind coming not from government through citizenship or immigration status, but from people’s humanity.

Jefferson described emigration, as a fundamental expression of that freedom. He wrote, two years before the declaration, “A right which nature has given to all men of departing their country in which chance, not choice, has placed them, of going in quests of new habitations.”

Second, the Founders understood full well what this meant, they, that this would mean people from all types of backgrounds would be coming to the United States, in, in huge numbers. As he negotiated the peace with Great Britain, John Adams foresaw economic crises in Europe that would drive, quote, “great numbers to our country,” but wrote, “It is our business to render our country an asylum worthy to receive all who may wish to fly to it.”

At the Constitutional Convention, you know, there is not a debate about whether to allow immigration. There’s a debate about how quickly to allow immigrants into the halls of Congress and to o- other, public offices. George Mason talks about opening the wide door. James Madison talks about welcoming great numbers of people. Benjamin Franklin was so concerned, about immigration and, and the, the framing of the Constitution that he worried that there would be anything in the document that could discourage, quote, “the common people from removing to our country.”

So this was a foundational, principle, and it was not limited to, to Christian immigrants by any means. As George Washington put it, he hoped, he hoped that America would be open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions.

Jefferson saw that America, American liberty would bring within its mantle of protection the Jew, the Gentile, the Christian, the Mohammedan, the Hindu, the infidel of every denomination. Franklin clearly articulated the implications for immigration. He said, “Even if the Mufti of Constantinople were to send a missionary to preach Islam to us, he would find a pulpit at his service.” As Madison explains in Federalist Number 10, he believed a big, diverse country would better protect the rights of minorities.

And third, these were not just pretty words. The, the founders actualized them with real policy. It wasn’t an oversight that we ended up with free immigration. The Constitution left open all offices, except the president, to immigrants without any religious test. They created a uniform rule of naturalization. This was unique in the world to have a general law to allow anyone to naturalize without regard to nationality or speech or religion or class.

Though the, the Naturalization Act of 1790 wrongly excluded non-whites, the, the founders adopted no law that prevented anyone of any race from immigrating permanently to America. And even before the Fourteenth Amendment, birthright citizenship guaranteed citizenship to the children of any free, immigrant. The Constitution also protected the rights to speech, assembly, gun rights, private property, due process, and much more to anyone without regard to their citizenship. Again, this was an intentional policy to protect the rights of newcomers to our society.

And fourth, I would argue that these policies were a massive success, propelling population and economic growth on an unimaginable scale. The annual legal immigration rate commonly exceeded one percent of the population in the nineteenth century, which would be like three point three million people arriving and receiving permanent residence today.

From 1830 to 1930, thirty-eight million immigrants arrived in the United States, propelling, rapid population growth in America from just thirteen million to over a hundred and twenty-three, million people. America’s GDP increased fiftyfold, and America became the world’s largest economy by the end of the nineteenth century, in large part as a result of our open doors policy.

Immigrants became half or more of the population in America’s industrial centers, New York, San Francisco, Detroit, Chicago, Milwaukee, St. Louis, Cincinnati, New Orleans. With their children, these were essentially just immigrant towns that industrialized America during this time.

So finally, fifth, what happened? Well, politics happened. Start with the Chinese Exclusion Act. Throughout US history to that point, anti-immigrant movements had popped up regularly at the state level, but they never succeeded because other states said, “Why should we reduce demand for our products just because you don’t like the Irish or the Germans or whoever?”

The elections of 1876 and 1880 changed this because California was the tie-breaking vote in the Electoral College, which was, decided, California was decided by less than ten percent, or a tenth of a percent of the vote. And since Chinese couldn’t vote, both parties ended up endorsing restrictions for the first time and jumping on really racist tropes about the unassimilable and alien Chinese.

And when immigration then shifted to Eastern Europe, during the early twentieth century, the same bigotry repeated itself with, with two new aspects that made it, made an across-the-board restriction possible for the first time. First, Eastern European immigration was rapidly spreading across America nationwide. And second, the eugenics race science movement had invented a new way to rally nativists against all Eastern European immigrants, in particular the Jews, fleeing Eastern Europe.

President Calvin Coolidge, who signed the 1924 law closing of Europe’s doors, cited biological laws as the basis for banning Eastern Europeans. The, the author o‑of that law, Congressman Albert Johnson, who led the Eugenics Research Association, called the 1924 act America’s second Declaration of Independence, but one founded in an opposite pr-principle, the inequality of people. He said, “The day of a‑unalloyed welcome to all peoples, the day of indiscriminate acceptance of all races, has definitely ended.” And, a‑across the ocean, even Adolf Hitler, took notice and praised the law.

The law accomplished its goal i‑in stopping legal immigration. My research has shown, has shown that we went from granting approvals to over ninety-eight percent of all Ellis Island immigrants to after 1924, less than ten percent making it through the process in any given year by the 1930s.

In 2024, the, the, percentage of, of immigrants, legal immigrants who are going through the process who actually receive permanent status was barely three percent of the total trying to come. And the result of this restriction has been decades of illegal immigration. In the earliest days, in the 1920s, they called it bootlegging in humans because they understood the Black market was a consequence of legal immigration prohibition, no different than the alcohol prohibition at the time. Today, many Americans don’t even understand why illegal immigration exists at all.

So to conclude, the founders’ immigration policy was no accident. They wanted free immigration. They crafted a legal structure to protect the rights of non-citizens and immigrants, and they expected America to welcome huge numbers of immigrants, which it ultimately did. The policy was a massive success, and it came to an end not because of some failure in the founders’ design, but because of bigotry that was not merely present in the arguments, but rather celebrated as a central, principle.

Congress believed, that those early 20th century immigrants could never become Americans in any true sense. They were wrong then, and their intellectual heirs are equally wrong today. So thank you, and I look forward to any questions.

**Tommy Berry:** Thanks so much, David. That was excellent. Brandon.

**Brandon P. Buck:** Yeah, so, thanks, thanks, Tommy. So, my chapter, in this is called *Withering of the Old Republic: The Decline of Anti-Militarism in American Politics*. And if the title is any indication, this isn’t exactly a cheery story, if you’re a libertarian or someone who opposes, large defense budgets a‑and the like.

But it argues that a once dominant bipartisan American tradition of anti-militarism that held deep suspicions of large standing armies, peacetime conscription, and a permanent warfare state were withered and largely disappeared from mainstream US politics during the mid 20th century and was replaced by a broad consensus that accepted a powerful national security state.

So I open the chapter with a vignette from one Howard Buffett, who was a then retired, congressman from Nebraska from the GOP. He’s actually, he’s the father of, of Warren Buffett. He was, he was, a conservative congressman, who in 1962 had, had penned a, opinion piece for the relatively new magazine, *The New Individualist Review*, in which he advocated for, a end to the draft, one that he called a, quote, “Old world evil,” and c- and compared akin to slavery. He also warned that both parties, had embraced a permanent, warfare state.

He argued that his, his, his once beloved, GOP had, had been, previously the party of freedom and emancipation had become, the party of, quote, “Me Tooism,” and had accepted a New Deal welfare state along with a Cold War warfare state. So the piece tries to fi- tries to, articulate and, and discover how is it, that ideas like Buffett in 1960 could have been considered radical or fringe when they were once dominant within, America’s political culture.

So the piece starts with the meat of its story at the turn of, of the last century, and it argues that the ideas of anti-militarism, opposition to a large standing military, and a permanent military establishment grew in political salience as a new, a, a new idea of America’s role with its military and w- and with, its presence in American society began to, to take shape, in the late 19th century.

That’s when you had prominent, members of the GOP like, Theodore Roosevelt, theorists like, Alfred Thayer Mahan, start to argue that as the United States matured as a nation, it ought to strike out into the world and take up the mantle of empire in, in order to compete with, the powers of, of Europe.

Ideas like theirs in the 1890s began to, to, to, to become politically impactful with, obviously with things like the Spanish-American War, a‑annexation of Hawaii, and, and further, imperial designs in, in the Philippines and also throughout the Pacific. But standing athwart that were the inheritors of this earlier tradition from the founders that had, that had gained political s- salience now that there was a, a open debate about the future of, of America’s military footprint, at home and abroad.

In Congress, the, the, the, the most obvious political expression for this were Southern populist Democrats and members of the GOP who were more, more progressive and predominantly, in the Midwest. Both of these factions held, that if the United States created particularly a large navy, that was the, that was the, the primary debate at the time, that it would permanently install a form of economic cronyism in the United States, one that would alter, the very fabric of, of, of American society.

These battle lines, between Southern Democrats, Midwestern Republicans, aligned up against, what was then a growing consensus, for the GOP in the North, and this, and these lines held as the United States began to debate entry into the First World War. And then again, these, these, as I call them, partisans of the Old Republic argue that should the United States prepare for and enter into World War II, it, it, it would fundamentally alter Americans’, Americans’, political and, social character.

They were supported outside of Congress by a fairly robust, media presence, figures like Oswald Garrison Villard, who was then the editor of the, of the, of *The Nation* magazine, a progressive liberal type, who, who went so far as to even argue that preparedness itself was akin to militarism.

After World War I, re- revelations of US and British propaganda, abuses of the Sedition Acts here, here at home, as well as war profiteering all fed into what was sometimes called the merchants of death thesis, that held that a collection of special interests, were the ones that benefited from, Americans’, involvement in the war, and therefore, these attitudes strengthened a anti-mil- militarist sentiment in the United States during the interwar period. So much so that efforts at disarmament and, demilitarization of the US economy actually increased as the Great Depression, took hold within the United States.

So what happened? Well, the obvious answer is the Second World War, but also the, the changes to the American, political landscape brought about by the New Deal. The so-called Solid South, that was once a hotbed of, of anti-militarism consolidated within the, Democratic Party and became a reliable supporter of mobilization, and the warfare state, not just as an element of preparedness for the coming of, of the Second World War, but also a- as a, as a, as, as a means of, of economic recovery, or so they thought, from the Great Depression.

They were supported by other institutions, in the fold, like organized labor, veterans groups, and some aspects of, of the, business community, who also saw p- preparedness and, and, you know, permanent, militarism as, as a means of juicing the economy.

So what, what happened? So th- this leaves, in its wake a fairly narrow opposition, mostly, who are now conservative members of the Midwestern, GOP, folks like Robert Taft from Ohio, who on the eve of World War II called peacetime, conscription as, quote, “Absolutely opposed to the principles of individual liberty.” Again, in media, you had folks like, Rose Wilder Lane, a proto-libertarian, who warned that, that preparedness and the draft would bring about similar, abuses to, to the American home front as were witnessed, during World War I.

However, despite their resistance to total war and the alignments of, of the New Deal permanently altered American, America’s political, landscape, and this, and this old cross-partisan, coalition collapsed. These trends were solidified by, by the Cold War.

That, however, it, it ought to be said there was a brief period there from about ’45 to ’47 in which the United States had a rapid demobilization, pondered about the future of conscription, and also there was a, a massive demand for demobilization. But crises in the early Cold War, like Greece, Czechoslovakia, and Berlin, and also in Korea, revived, and permanently entrenched the national security state.

However, holdouts like the aforementioned Howard Buffett stood, stood and, and argued, that the Un- that the United States ought not to, permanently militarize its economy to, to, to fight the Cold War. He went so far as to blame the United States for the onset of the Korean War, and warned that militarism would, quote, “Lead to economic collapse and dictatorship here in the United States.” So Korea solidified, this particularly a- amongst conservatives within the GOP.

They, the, it brought into the fold the, the last few, holdouts, so-called isolationists who opposed, further mobilization. And it was so strong that even non-interventionists like Robert Taft and Herbert Hoover became to accept large nuclear deterrence and higher defense spending for the purposes of, of so-called defense. And so therefore, the, the collapse of this, of this earlier attitude towards American militarism, was, had solidified.

Now, I tried to end the chapter on a high note, and I’ll try to end this little presentation on a high note. So, Buffett’s 1962, opinion piece, while, while, while it wasn’t widely read and it wasn’t entered into the Congressional Record, which he had actually hoped to do, it nevertheless was part of a larger effort amongst some conservatives, people we would now consider to be libertarians, to end the draft.

And even though they tragically did not do so before the, the, the bloodletting of Vietnam, their efforts throughout the 1960s and into the early 1970s did in fact contribute to the end of the practice. So I guess that is a, a, a little glimmer of hope, in, in this larger story of, of, of, pessimism.

**Tommy Berry:** Fantastic. Well, that’s what we like, and I think very appropriate for, what should be mostly a celebratory week, although one in which we’re giving some notes of caution as, as, as well. So thanks so much for that, Brandon.

Reminder to our audience, we’ll be taking your questions soon. Please submit them on the, on the webpage as you’re watching. I get all the written ones here, and I’ll be, asking them as, as soon as we get them.

I also, before we wanna go further, have another thank you. Besides all the authors, all the excellent authors, of chapters in this book, I have to give huge thanks, to Eleanor O’Connor and Ivan Osorio in Cato’s publications team. This book was their idea, so this literally would not exist without them, and they also spearheaded, the editing process and the invitations and, really planning out the whole, theme and structure of this book. So they put a lot more work into this than I did, and a huge thank you to them.

I’m gonna touch on a couple other chapters just to give people, an idea of the scope of this. Since I talked about civil juries, I have to briefly, discuss Clark Ne- my colleague Clark Neely’s, chapter on criminal juries, and the really, shocking statistics and, and history he recounts of how much the criminal jury has, become unfortunately phased out, and is no longer the normal process of adjudication of, of criminal convictions.

We’ve reached a point now where thanks to coercive plea bargaining, which the, the Supreme Court has unfortunately pretty much allowed in every respect, thanks to tools like, the trial penalty, massive disparities between the sentence you get if you plead guilty versus the sentence you would get if you try to go to trial, as well as other coercive tools such as threatening to indict family members, pretrial detention, mandatory minimum sentences, creative charge stacking. All of these have been unfortunately allowed by the courts despite the jury right, in the Constitution.

All of these have led, led to a state of affairs today where only about 2% of federal criminal cases are actually tried before a jury. So 97-plus percent, are, of federal convictions are obtained from guilty pleas, and that just leads to a system that’s, unrecognizable compared to what the, the fr- Framers expected and designed because of many of the principles I was discussing earlier, that juries are not just supposed to be narrow fact-finding, adjud- bodies, but a, a, a democratic process by which the justness, of a prosecution, is also adjudicated.

That juries were frequently discussed by the Framers in the same sentences as voting, as democracy, as the two ways in which people participate directly in their government in a very concrete way. In fact, some Founding Fathers considered the right to serve as a juror more fundamental than their constitutional and political identity, to their constitutional and political identity than the right to v- to vote. That’s Professor Andrew Guthrie Ferguson.

And so we’ve, we’ve reached a point now where, Clark has some fantastic suggestions for how to get out of this, things like, a, a lottery by which you would test whether what percentage of people who plead guilty are in fact actually innocent. But we have a long way to go to get to the system that we were designed to have, which was that every conviction comes via a jury of your peers. And another benefit if we went back to that is a lot more marginal prosecutions would no longer be brought, because prosecutors would really have to consider, is this worth the resources not just of the government, but also of the community, to obtain a conviction?

I also wanna discuss Adam Michel and Joshua Loucks’ chapter on taxation, which I learned a ton from, and I really think, is, is eye-opening and, and dispels a lot of misconceptions or oversimplifications of the famous, Tea Party and, and protests against taxation without representation.

Because as they emphasize, the Tea Act, which the Boston Tea Party was a protest against, it was widely seen as an attempt to establish British control over colonial commerce by providing a monopoly benefit to a politically connected corporation, in this case, the East India Company. The act of insurrection was a protest not so much against high tax burdens, but against a tax break for the East India Company that undercut colonial competitors and reinforced corporate favoritism.

So going back to the beginning, Americans had strong values, not just about low taxes, everyone always complains about low taxes, but about fairness, about the process being equal and the, people not getting advantages because they’re more politically connected. And we see that throughout the Constitution, things like taxation bills have to originate in the House of Representatives because that’s considered the more politically accountable and politically connected, body among, in our bicameral system. The requirement that direct taxes be apportioned across the states equally by population, the requirement that all duties and excises be uniform against, across the country.

So really, a lot of barriers were put in, supposed to protect us from favoritism, from a more politically powerful faction, gaining tax breaks and advantages at the expense of less politically connected factions. And unfortunately now, you know, since the 16th Amendment, again in the early 20th century, I’m sensing a theme here in all of our discussions about a shift around that time for the worse. Since, in- federal income taxes are now allowed, we have a massively complex, system in which all sorts of favoritism is, is all too easy and in which, the system is so complex, that it becomes natural that everyone will be asking for their own little carve-outs and their own little, advantages based on political connections. So it’s really ab- taxation, the history of taxation is not just about overall amount, it’s about fairness, and, and equal application.

So I’ll start with just a, a, a, a big-picture question, which is if I see a theme of, of everything we’re discussing, it’s that sometime in the 20th century, people got this attitude that the world of the Framers no longer exists, and that the principles they enshrined, even if they were right for 1776 or 1789, they no longer could, were up to the task of addressing the modern world.

And, David, I can’t help, you know, noting the moment we’re in, which is tomorrow, we now know, we’re going to get the Supreme Court’s decision about whether birthright citizenship as we’ve understood it for the last 100-plus years will continue to exist in this country, the general rule that nearly everyone born on US soil is a citizen. And there was an exchange at the oral arguments in the Supreme Court that I attended where, the Solicitor General of the United States said, “It’s a different world. People can fly here, give birth, fly back.” And Chief Justice Roberts responded, “It’s a different world. It’s the same Constitution.”

And so I wanna ask both of you, how do you think about this? Is there a collision, or how do you think about reconciling, principles from a moment that are supposed to be timeless with this idea that, changing, a changing world means they no longer work for us?

**David Bier:** Well, that’s a big, it’s a big question. Obviously there’s lots of ways in which the world has changed, and I think all of the ways in which the world has changed has made these limits on government that we’re talking about, including, birthright citizenship I would consider such an important one.

Look, if, if the world was, you know, run by a bunch of steamships and, you know, we were all working on farms and things like that, I, I, I think the argument today that we need to have birthright citizenship to limit who the government can say has rights, I mean, it’s one of the most important protections in the Constitution. And yeah, like there’s weird stuff happening, you know, people fly in and they have a baby, whatever.

The bigger picture here can’t be lost. We don’t wanna have the government be able to decide which Americans are real Americans, and having a simple, easily enforceable rule protects our rights so much better than having Congress come up with some complex system that results in a degradation of all of our rights.

And when I look at when ICE is stopping people on the street, demanding to see proof of citizenship and, and things of this nature, it’s not just the stop that I find offensive, it’s the fact that if you got rid of birthright citizenship, we wouldn’t have a foolproof defense against being deported or detained or arrested or harassed or whatever the case might be. So I think as the world has gotten more complicated, in some ways it has made the necessity of these limits on government even more important than before.

**Brandon P. Buck:** As far as my piece goes, I think, you know, even though the world has certainly changed, the, the reality of trade-offs has not. I mean, the, there, there’s, there’s always gonna be a, a, a financial cost and a political cost to maintaining a large military and having global ambitions for it. And this is something that the founders understood, and this is something that their, their heirs understood at the turn of the last century, and this is what, this is, this is what animated them.

And I think another thing that hasn’t changed is the fact that the United States m- still enjoys the, the, the best geopolitical position in, in human history. So it– the United States does not need to maintain, a large, a large standing military, a, a massive military bureaucracy, in, in order to secure itself. It, it, it, it simply does not have the same kind of security concerns that other, that other states do. And so in order to facilitate that, so in, so the counterargument for those who do wanna make those changes, they have to constantly expand what it is that the United States is trying to defend, right? It’s not just the soil and the nation state. It’s our values. It’s, you know, it’s some sort of like, amorphous category about the, the global rules-based liberal international order, et cetera, et cetera.

And I and, and you see this in debates at the time. I mean, it-it’s not as if, everyone in this camp was, say, opposed to, you know, like local militia drafts for the purpose of like defending the local community. One of the, one of the issues was that conscription became to, to see the draft became seen, by its supporters at the turn of the last century as, as, as a means of, of homogenizing the nation-state, as a tool of social engineering. So again, the debates about what the purpose of a military was also changed, and it wasn’t, it wasn’t seen by some of its more progressive or neutral supporters merely as a means of defending the United States. It b- it became viewed as a mechanism of social regulation. So, I mean, the, the, the presence of trade-offs for this and the reality of, of our g- of our geopolitical position will remain. And, and so therefore, the debates shall remain, largely similar.

**Tommy Berry:** I’ll, I think that’s spot on, both of you, and I think, one theme I sense is we’re too quick to assume that the principles have become outdated when, if anything, they can be more important now because as the world changes, the threats also become more significant.

You know, thinking about the jury rights, both criminal and civil, you hear so often that there’s just no capacity amongst the federal courts, amongst Article Three courts, to deal with the more complex world, that we’re in. And to me, that’s just a lack of imagination. We’ve built up a massive structure that would’ve been u‑unknown to the 17 and 1800s of these agencies, massive numbers of people working in there.

But what would stop us from shifting that capacity to Article Three courts, having massively more judges in, in, in Article Three life-tenured judges, massively more capacity for trials, both civil and criminal? You can keep up with, you can expand the capacity of the federal government, but you can do it in the proper, departments, the departments that were intended to handle these particular issues.

We’re starting to get some questions online, which is fantastic. Please keep them coming. Cl- keep them submitting. We have one comment, like, from anonymous I can’t resist reading. “Timothy Sandefur’s new book, *Proclaiming Liberty*, makes a compelling case for the natural rights basis of the American Revolution.” Indeed, it does. Thank you for the, thank you for the shout-out. And please, everybody, get Timothy’s, book. I think it’s a great companion to this one, so get them as a combo for, two fifty week.

Another- a big-picture question from McKenzie asks, “Do you think future administrations would be likely to re-embrace the founders’ original ideals? If so, what policy shifts would signal a genuine return to those constitutional roots?”

Big question, but at least maybe to turn the tide, at least to start going in the right rather than wrong direction, what do you think might, either of you, could be a reasonable first step?

**David Bier:** Yeah, so when I think about immigration, we’ve abandoned the whole concept of a rights-based approach to dealing with it. And, you know, the founders saw immigration as, part of, the rights of Americans to associate and contract and trade with people from other countries and, welcomed it on that basis. And we need to get back to a system that focuses on protecting our rights to a free association and interaction with people from other countries.

And I think you can start with a, a visa system that, really, I mean, the only group of people who can immigrate the way that, you know, people did 100 years ago are the spouses and minor children of US citizens, you know, if the U- if they’re, you know, not already in the country illegally. And so, I mean, that’s a very narrow group of people.

We need to be working on e- expanding that visa system, allowing people to apply, focusing on, you know, the rights of Americans to hire people from other countries, to rent to people and sell their property to people from other countries. As long as these activities are happening, you know, private sector, you know, i- interactions should be protected by the government. Presumptively, you should be free to engage in these activities without the government getting involved, unless there’s some security threat or otherwise.

And when I look at the immigration system, the vast majority of what the modern immigration system does has absolutely nothing to do with the security of Americans, and I think that’s the number one concern that people have. That’s the number one legitimate purpose of government, is to protect our rights from people who threaten us, and that’s not what the vast majority of the legal immigration system does.

You can look at what types of things we’re spending billions of dollars in immigrants’ fees. I mean, they’re paying for the system to do this, but it’s a total waste. You look at it for Just to take one example from the employment-based system, we have millions and millions of dollars being spent on deciding whether an immigrant is extr- has extraordinary ability or merely exceptional ability. I mean, that is the type of, you know, parsing that we’re doing, and it’s not without consequence. If you’ve got extraordinary ability and you’re from India, you might have to wait, you know, three or four years. If you have only exceptional ability, you might have to wait 100 years.

And so, you know, these are the types of things that we’re spending our money on. This is the type of people who are being excluded from this country based on arbitrary criteria like this. And so I think we need to get back to a system that focuses on protecting our rights from people who are threatening us and protecting our rights to associate and contract and trade with, with people in other countries.

**Tommy Berry:** Yeah. Brandon?

**Brandon P. Buck:** You know what? That’s a big question, and I wish I had an easy answer for it. I mean, it, it’s gonna take a fundamental reordering of what we believe our, our, our role as Americans in the world is and, and, and ought to be. You know, obviously we’ve heard some shades of this recently, the whole America f- supposed America First movement w- w- within the, within the Trumpism and, and, and the current presidency. We, we’ve seen flourishes of it o- on both the left and the right.

But I think it’s, it’s gonna take a, a, a sustained change, not only in popular opinion, but in elite opinion, that America’s best interests are actually served by some sort of military retrenchment, and I think that’s gonna be a much heavier lift.

You know, one of the interesting things to me is in the 1920s and early 1930s in the disarmament movement, you had titans of industry. Even before that, you had Of course, you had Andrew Carnegie, who was then the, the world’s richest man. You had people in the steel industry, in the oil industry, in the coal industry supporting arms limitation, ’cause they, they, they earnestly believed that this was bad for their bottom line, ’cause it was it, it would distort the market.

But, you know, since, since the 1970s, with, with Nixon permanently c- closing the gold window and us just going o- on, on a totally inflationary standard, it, it’s harder and harder to create, the, that, that, that level of elite politics that sees its interests as being served by, by some sort of, of military restraint. So it I think it’s, it’s gonna take that, and it’s also gonna take a sustained popular, attitude towards lower defense spending and, and I think, most importantly, and perhaps even achievably, the, the physical withdrawal of, o- o- of troops from abroad. But, neither of those, avenues are, are, are easy.

**Tommy Berry:** Yeah. Very, very true. I’ll just add one thing on general attitudes of the executive branch, which is at a fundamental level, we’ve moved away from the attitude that the executive and legislative branch used to have, which is they are equally bound by oath to evaluate the constitutionality of policies and actions just as much as the judicial branch.

All too often now, I hear this attitude, sometimes said explicitly from legislators and executive branch policymakers, “We do what we think is best policy. It’s the job of the courts to block us if there’s some constitutional issue in the way.” And that’s not how it, the system is supposed to function. You’re supposed to get through all three branches, considering something constitutional, and any one of them can block it for not being constitutional.

Grover Cleveland famously vetoed a bill to provide, Texas, drought-stricken Texas farmers with seeds, because he thought it was, you know, even if good policy, not authorized by the const- federalist separation of powers, that it was a state, not a federal issue. And so I would love to see presidents, you know, start saying again, “Maybe the administrative state that I’m overseeing is not actually consistent with the separation of powers in the Constitution, and maybe I should start winding it down or at least moving in the direction of something that’s, more consistent with the, the framing ideals.” They don’t have to just wait for the courts to force them to do it.

We have a question from Vikram online. “Is there a double-edged sword effect for advocating for a return to founding era rights? For example, would founding era juries have the same latitude to disregard judicial instructions on the law? If immigration is justified by freedom of association, could that license race discrimination, et cetera?”

Interesting question. So y- on the “would founding era juries have the same latitude to disregard judicial instructions on the law?” I think that’s a tricky question. I think in general, we think we should at least move more in the direction, directionally speaking, of get closer to where we were at the framing, that a lot more of the problems now come from far too little latitude on evaluating the justness of something than far too much. So I’m less concerned about that sort of going too far in the other direction, situation.

I think again, history shows that juries in general can be trusted to be reasonable and that certainly, you know, acquitting someone because the prosecution is unjust despite the letter of the law is something to be exercised rarely, but still something that should be available to them as a tool and that they’re not sort of l- told unfairly or incorrectly that they simply don’t have, as an option.

Did either, do either of you have a response to that?

**David Bier:** I mean, I would just say when it comes to freedom of association, look, this is, this is the f- this is a founding principle and it does have implications that are, you know, not easily embraced by our current, left r- liberal consensus on this. But I would say is we would be in a much better position if Congress and the government protected people’s rights and that was true, throughout American history.

Businesses have a strong incentive not to discriminate, because that hurts their bottom line. If you’re turning away the best person because they’re an immigrant or they’re not the right race, that undermines your ability to compete in the market. If you’re turning away consumers for the same reason, again, it undermines your ability to compete. The railroad in *Plessy v. Ferguson* was not defending segregation and Jim Crow. They were fighting against it.

So there’s strong reasons to believe that, a free market approach here would produce a much better, more egalitarian system. And ultimately, if our rights are protected, we have the ability, the most fundamental ability is to move, is to get away from the, the whoever’s violating our rights or discriminating against us or we have alternatives.

But when the government is mandating some sort of demographic micromanagement for the country, whether it’s through DEI initiatives or some kind of race-based control at businesses or through immigration, you end up in a worse place because the bureaucrats and the people who are in charge in DC just don’t care about people’s fundamental rights, to associate and contract and trade and you end up with, minorities being the first to, you know, suffer in that situation. And so, I, I would advocate for, the, the free market, over some sort of, government-based system of control.

**Tommy Berry:** Fantastic. We got about one minute left. Brandon, any last thoughts?

**Brandon P. Buck:** No, that’s, that question is a little- Oh, we lost your audio, Brandon. So. Okay. Oops. Oh, you’re back. Good. All right.

**Tommy Berry:** Well, thank you both, so much. So I hope all of our listeners learned a lot about the declaration. I certainly did reading this. I’ll say just as a, as a parting thought that it really s- I really gained an even greater appreciation of the fact that the declaration is a philosophical document, not just a political policy complaint, that the framers were really sophisticated in thinking about first principles, that they were, you know, breaking up with England not just because they didn’t like the policies being imposed, but they thought that fundamentally, the classical liberal values of good government had been violated, things like equal protection of the law, equal application of the law, representation, a chance to have a voice in government and a chance, to protect the individual rights that are fundamental to good government.

And I think as this discussion has shown, even as the world changes, those principles of classical liberalism are timeless.

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[Thomas A. Berry](/people/thomas-berry)

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

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[David J. Bier](/people/david-bier)

Director, Immigration Studies, and The Selz Foundation Chair in Immigration Policy, Cato Institute

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The Cato Institute’s new edited volume, *A History of Repeated Injuries*, explores simple but profound questions: 250 years after the Declaration of Independence, how successful have we been in escaping tyranny? Are we entirely free of the “injuries and usurpations” of which the Framers complained? Or have modern analogues of old tyrannies crept into our own government, leading to losses of liberty akin to those suffered by the colonists? Four authors of different chapters in the book will discuss these questions with respect to jury rights, taxation, immigration policy, and foreign policy.

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