How come due process sometimes means what England did in 1791 and sometimes it doesn't?

[ElFenix]

The several due process clauses in the constitution have been held, repeatedly, to refer to English practice in 1791. The reason English due process was chosen was that there was no federal due process previous to that, and state practices were far from uniform. So we look to England, where we got most of our laws anyway. England had 12 people on a jury in 1791, so all federal civil juries must have 12 people. But in England had to have prior knowledge of the case. Here you want jurors with no prior knowledge. Due process is what guarantees at least some access to counsel in some criminal cases, but England didn't have that right until 1836. You can't reconcile the two. Either due process as applied in England in 1791 is the law, or it is made up as we go along. If that were so then it would be whatever manages to 'shock the conscience" of 5 members of a 9 member unelected tribunal. That to me doesn't seem like the best way to go about things.

 

[onelove]

its never too late to go to law school... but the short answer is that it is made up as we go along.

 

[ElFenix]

Originally posted by: onelove
its never too late to go to law school... but the short answer is that it is made up as we go along.

then doesn't that violate the constitutional requirement of preserving the substance of the jury trial (as it existed in england in 1791?)

 

[Spencer278]

Originally posted by: ElFenix
The several due process clauses in the constitution have been held, repeatedly, to refer to English practice in 1791. The reason English due process was chosen was that there was no federal due process previous to that, and state practices were far from uniform. So we look to England, where we got most of our laws anyway. England had 12 people on a jury in 1791, so all federal civil juries must have 12 people. But in England had to have prior knowledge of the case. Here you want jurors with no prior knowledge. Due process is what guarantees at least some access to counsel in some criminal cases, but England didn't have that right until 1836. You can't reconcile the two. Either due process as applied in England in 1791 is the law, or it is made up as we go along. If that were so then it would be whatever manages to 'shock the conscience" of 5 members of a 9 member unelected tribunal. That to me doesn't seem like the best way to go about things.

Explain how a tribunal in any way meets the requiriments of:
"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 defense."

 

[ElFenix]

Originally posted by: Spencer278

Originally posted by: ElFenix
The several due process clauses in the constitution have been held, repeatedly, to refer to English practice in 1791. The reason English due process was chosen was that there was no federal due process previous to that, and state practices were far from uniform. So we look to England, where we got most of our laws anyway. England had 12 people on a jury in 1791, so all federal civil juries must have 12 people. But in England had to have prior knowledge of the case. Here you want jurors with no prior knowledge. Due process is what guarantees at least some access to counsel in some criminal cases, but England didn't have that right until 1836. You can't reconcile the two. Either due process as applied in England in 1791 is the law, or it is made up as we go along. If that were so then it would be whatever manages to 'shock the conscience" of 5 members of a 9 member unelected tribunal. That to me doesn't seem like the best way to go about things.

Explain how a tribunal in any way meets the requiriments of:
"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 defense."

well the trial on the merits isn't conducted by the tribunal, so those requirements don't apply. the tribunal i was refering to doesn't try people.