ABOUT THIS EPISODE
Self-Evident: The Road to 1776 — Episode 14i
Prosecutor One Day, Judge the Next: Inside America's In-House Courts | Jared McClain
Montesquieu wrote that there is no liberty if the power of judging is joined to the power of carrying out the law. Jared McClain, a senior attorney at the Institute for Justice, works on the far side of that problem: a county hearing officer hired by the county that brought the charge, an agency lawyer who argues the government’s case one day and sits as the judge the next, and courts that have written their own rules about who gets through the door.
Jared represented the five Humboldt County, California, landowners whose federal lawsuit against the county’s cannabis code-enforcement program settled in August. The county used satellite images to charge property owners, levied daily fines of up to $10,000 per violation, and sent appeals to a hearing officer it had hired itself. Jared explains how the case became a petition asking the Supreme Court to guarantee a civil jury against the states, why Justice Gorsuch wrote that the 1916 decision standing in the way warrants a second look, and what the settlement did and did not change.
Then Jared answers Montesquieu’s question — too much power, or the wrong people doing the judging — and walks through qualified immunity, the language cut from the Ku Klux Klan Act, the immediate appeal officials get that the people suing them do not, and a double standard in how courts weigh the privacy of people caught on body-camera footage. After the interview, I put the civil jury itself to the Liberty Test, starting with the strongest case against it.
🔗 Institute for Justice: https://ij.org
Did it leave people more free, or more governed?
⏱️ CHAPTERS
0:00:00 — Introduction: Montesquieu & The Problem of In-House Judges
0:03:14 — Introducing Jared McClain & The Institute for Justice (IJ)
0:06:12 — Impact Litigation: From Kelo to Immunity Battles
0:10:54 — Crushing Fines in Humboldt County: When Enforcement Becomes a Trap
0:19:45 — The Seventh Amendment & Incorporating the Right to a Civil Jury
0:25:20 — “The Process Is the Punishment”: Administrative Law Realities
0:28:05 — Montesquieu’s Question: Too Much Power or the Wrong Judges?
0:31:42 — Building Precedent: From Timbs to Jarkesy
0:34:33 — Judicial Bandwidth & The Pushback Against Court Access
0:37:22 — Settling Humboldt: Did Landowners Win Liberty or Just Process?
0:41:24 — Qualified Immunity & The Ku Klux Klan Act
0:47:00 — Interlocutory Appeals: How the Rules Tilt Toward Government Officials
0:54:16 — Body Cameras & Surveillance: A Double Standard on Privacy and Access
1:00:37 — Supporting IJ & The Scope of Impact Litigation
1:03:25 — Sun Valley Orchards: The Next Battle at the Supreme Court
1:04:36 — Post-Interview Analysis: The Three Criticisms of the Jury
1:09:18 — More Free or More Governed? The Power to Refuse
1:12:21 — Looking Ahead: Rousseau and the General Will
📚 Companion article, “The Spirit of Laws” — Montesquieu and the Architecture of Liberty: https://www.consequentialactions.com/post/the-spirit-of-laws-montesquieu-and-the-architecture-of-liberty
