Fragility of the American Justice System


Nassim Nicholas Taleb’s Antifragile: Things that Gain by Disorder is a revelation. At last, someone has explained to me why so little has ever made any sense to me, especially about the behavior of my fellow human beings.

One of the most important things that hasn’t made any sense to me (at least since 2006 when I served on a jury) was the American justice system.

The problem with American justice is that in the past 228 years the highly Antifragile U. S. Constitution and Bill of Rights has become fragile, in other words, by treating the Constitution as “a living document” instead of as a rock-solid foundation, Americans have slowly squeezed the elasticity out of it, so that now it is on the verge of shattering.

Sidebar: If you think I exaggerate, consider the NY Times Op-Ed’s recent screed: “Let’s give up on the Constitution.” (I won’t dignify this choplogic with any other comment.)

The original Constitution and Bill of Rights anticipated unexpected, anomalous events, what Taleb calls “black swans” (one-in-million events). But human nature and modern statisticians want to believe in a nice, cozy “average,” a Bell Curve. So we try to establish a “well-ordered society” in which nothing strange or shocking can ever happen. For instance, we outlaw automatic rifles and try to pretend the bad guys won’t be able to obtain them, or we become amnesiacs and forget about airplanes carrying no automatic rifles diving into buildings.

Rights to a Fair Trial and Just Punishment when Guilty

Under the Antifragile Constitution, Americans (and everyone else who lives here) enjoy these freedoms:

Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Sidebar: In modern American English this means, people have the right to own private property and to maintain their privacy; invasion of privacy and seizure of private property are prohibited unless the government has solid grounds for doing so and only if the government agents who perform the search and seizure have first sworn an oath as to what the grounds are, exactly what places are to be searched, and exactly who they intend to arrest or what they intend to seize.

Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Sidebar: In modern American English this means, no one can be tried for murder or any other notorious, horrible crime unless a Grand Jury has heard the outline of the government’s case and issued an indictment; the one exception is during wartime when the accused is a member of the armed forces; no one may be tried twice for the same crime; no one can be forced to testify against himself; no one can be punished without a trial; no one’s property may be seized by the government without compensation in some form.

Sixth Amendment: “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.”

Sidebar: In modern American English this means, after arrest, criminal defendants have the right to a speedy public trial (no long drawn out investigations after arrest and no trials in secret);  it must be a jury trial and conducted in the legally defined community where the alleged crime occurred; an arrested person must be told exactly what it is he or she is believed to have done wrong and to have the witnesses against him make themselves known to him before the trial (no surprise witnesses for the prosecution); the defendant has a right to compel people to appear as witnesses in his defense, whether they like it or not; the defendant has a right to a lawyer.

Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Sidebar: In modern American English this means, in civil court where two people have a complaint against each other, both sides have a right to a jury trial, too; the decision of the jury is always final unless a judge has the right under common law to overrule the jury. “Common law” means specifically the long-standing practices of Anglo-American courts.

Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Sidebar: In modern American English this means, punishment in all cases cannot be cruel (imposing irreparable harm on the defendant, who may actually turn out to have been falsely accused) or unusual (designed specifically for him or her and not otherwise specified in law). (These are my personal interpretations of the words “cruel” and “unusual.” Obviously, I am not a lawyer, just a very good reader of 18th c. language. I do not, as most lawyers do, think that the word “and” was used in the 18th c. to mean nothing but “and.” It also meant “or.” I acknowledge, however, that capital punishment is not included in this definition of excessive punishment, because the Fifth Amendment clearly states that a person can be “deprived of life.”

Do We Still Want Defendants to Enjoy These Freedoms?

Of course not. The courts have slowly watered each of these rights down, because we are more afraid of 10 “guilty men” going free than we are of 1 “innocent man” being punished. We think that those 10 criminals will rampage forever unless we make sure we can throw them in jail. We know that the 1 innocent will just sit there quietly in jail for 30 years and then lie down for the fatal injection. Few people care about this injustice any more.

We’re fragile as a society and individuals, too scared to do anything but accept the necessary loss of freedom.