Your Newest Best Reason To Love America: Trial By Combat

One of the very few things I truly enjoyed about law school is that, without doubt, there is no better way to get an in-depth look at everything genuinely absurd and stunningly ludicrous about our beloved U.S. of A.

With that in mind, today’s exciting episode of “Introduction to Ridiculous Thinking” features one of legal scholarship’s most singularly important questions: Do Americans still have the option of choosing “trial by combat” over the more conventional (and undeniably more boring) trial by jury? (You would at least literally have people begging for jury duty – that much we do know about our wonderful culture)

The legal “reasoning” here goes something like this: “The Ninth Amendment says that the enumeration of certain rights in the Constitution does not mean that the people don’t have other rights too,” Adam Winkler, a specialist in American Constitutional law, recently explained to Business Insider. “[To justify ‘trial by combat, proponents would] have to prove that it was lawful in Britain when the Founders created the Constitution and that they didn’t intend to outlaw it,” Winkler said.

(In Business Insider’s defense, the markets were closed at the time this particular article was written…)

Hence, since the United States did inherit British Common Law AND because “trial by combat” was still legal at the time of the Constitutional Convention AND because the feds never bothered to outlaw your fundamental right to settle legal disputes by duking it out, you might – and I emphasize might – still have that option. In the UK, for example, (where the legislature at least occasionally GETS STUFF DONE), Parliament actually did pass a ban formally ending the glorious tradition of deciding cases by having the parties beat the living cr@p out of each other. But the United States Congress? Of course not.

Now it is true that most states have anti-dueling laws on the books, but those statutes technically only apply to conflicts between individuals – not between an individual and the state (or how about a corporation?) — In fact, as Winkler notes, because dueling was fully accepted by the founders themselves (think Hamilton vs. Burr), an originalist might go so far as to suggest the practice was fully compatible with their understanding of the Fifth Amendment’s “due process” guaranty and therefore should still be the law of the land today. Then again, there couldn’t possibly be anyone on the Supreme Court who’d actually embrace a legal philosophy like “originalism . . .”

Should you feel particularly driven to further explore this fascinating legal conundrum, I invite you to read the rest of the article yourself  – Or, MUCH more importantly, if you’re currently demanding to settle a $40 traffic ticket with samurai swords. (Sometimes you really just can’t make this stuff up)

And to think – it was only just a few months ago I was blogging about how going to law school isn’t worth the cash.

What was I possibly thinking???

[“Trial By Combat May Still Be Legal In America,” Business Insider, 11/10/2013]

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