Day: July 23, 2025

How much money would you sell your ancient liberties for? Or let’s put it another way: how much money would you wish the government to save in a trade-off for an essential element of freedom and justice in the English-speaking world? The ancient freedom to which I am referring is the common law institution of trial by jury. David Hume, in The History of England, referring to “trial by … jury of twelve freeholders,” believed that this institution is “very ancient in England, and was fixed by the laws of King Alfred.”

So, how much money for this ancient institution? How about for £31 million (or just over $41.6 million). Let’s put that sum of money into context. As Robert Jenrick MP, the Conservative Shadow Secretary of State for Justice, noted, this sum is merely 0.2 percent of the United Kingdom’s Ministry of Justice budget. Despite the minimal savings that are estimated, the Labour administration in the UK is considering restricting this foundational judicial procedure. For instance, crimes from sexually assaulting a child to fraud may be restricted to judge-alone trials.

Adam Smith in his Lectures on Jurisprudence said, “The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries.” Writing about “procedural safeguards,” such as trial by jury, F. A. Hayek noted in The Constitution of Liberty that in “Anglo-Saxon countries,” these safeguards seem “to most people as the chief foundations of their liberty.” Indeed, the institution of trial by jury is the cornerstone of the criminal justice system and is deeply rooted within the legal tradition and practice in Anglo-American law.

As the scholar Harry Potter noted in his book Law, Liberty and The Constitution, 1166 was a significant moment because Henry II, after counsel and consultation, “promulgated the Assize of Clarendon,” and “this was a landmark in the history of the jury.” Roger Scruton in England: An Elegy notes that the jury with its Saxon and Norman elements “took something like its modern form following Assize of Clarendon.” Indeed, a jury and its impartiality are necessary to our conception of justice. Additionally, the very existence of a jury is central to our idea of the rule of law. Alexis de Tocqueville in Democracy in America wrote:

When the English adopted the institution of the jury, they were a half-barbaric people; they have since become one of the most enlightened nations of the globe, and their attachment to the jury has seemed to increase with their enlightenment.

This attachment does not seem to be shared by this present Labour administration. Of course, Sir Tony Blair, when he was Prime Minister, also endeavored to restrict the right to trial by jury. Indeed, Labour has a negative track record on our constitutional heritage.

So, if you would not throw this liberty away for the money, how about saving a bit of time and freeing up some sitting days? Say, 9,000 Crown Court sitting days a year? Sarah Sackman, a Labour MP and a government minister, expressed in the House of Commons that the “Lord Chancellor commissioned Sir Brian Leveson to undertake a once-in-a-generation review of the criminal courts.” The result of this commission was a report by Brian Leveson called Independent Review of the Criminal Courts. To use a concept that was partly developed by George W. Cary, the report lacks “constitutional morality.” Sir Brian seems to refuse to “abide by the restrictions and imperatives” of the British constitutional tradition. For instance, he claims in the report that there exists no constitutional or indeed “any form of general common law right to trial by judge and jury.” Moreover, he claims that Magna Carta does not provide “a legal basis to claim a right to a jury trial as a constitutional right.” Leveson has said that Magna Carta only refers to trial by “peers” not “jury.” It does appear that he is calculating that his sophistry will be persuasive enough for the government to make economies in the judicial system despite the constitutional immorality.

The report is wide-ranging, but for our purpose here, I shall focus on his recommendations to the Labour administration for changes to trial by jury. His recommendations are:

(1) Defendants should be able to elect not to have a trial by jury;
(In England and Wales, there is a very limited right to this, e.g., where there is a concern about jury tampering, unlike in the US, where being able to choose between jury or bench trial is fairly common.)

(2) There should be judge-alone trials when the trials may be long and complex;

(3) Trial by jury should not be used in serious and complex fraud cases.

As John Randolph of Roanoke had suggested, there is a difference between change and reform. These recommendations are not meant to reform, improve, and strengthen our existing concepts of justice but to change them. One would have thought that the Labour administration would recoil from such recommendations and also distance itself from the report. But no! The Minister of State in the Ministry of Justice at the dispatch box in the House of Commons said that the Government welcomes “the ambitious recommendations that he has put forward.” Why, you may ask? Because, according to the Minister, the Labour Government “must consider any measures that will put our courts on a more stable and sustainable footing.” In other words, to save time and money. Perhaps, the minister did not mean that the government welcomes the curtailing of jury trials, but the report in general? No, this is not the case as Sackman said, “We will carefully consider Sir Brian’s recommendations on jury trials, along with everything else, before providing a formal response to Parliament in the autumn.”

The reasons provided by Leveson, who has a track record of endeavoring to restrict the use of trial by juries, for these recommendations for diluting this core safeguard for our freedom are revealing. Leveson does not believe that the jurors have the capacity to understand the complexity of fraud cases. He makes this plain, writing that cases that are “serious” or “complex” “should be tried by judge alone.” These cases will be “defined by their hidden dishonesty or complexity that is outside the understanding of the general public,” and that Leveson believes it is “difficult for the jury to understand or assess … some of the evidence.” Again, he does think that the general public is not up to the job of justice and believes that the “increasing length of trials” and the “substantial burdens placed on jurors” are too much of a burden on ordinary people.

Turning to Adam Smith again, the Scotsman observed that “the jurymen are your neighbours who are to judge of a fact upon which your life depends.” Leveson desires to remove your neighbors from the judicial process, and the Labour administration “welcomes” it. Russell Kirk wrote in America’s British Culture that “the English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” Sir Roger Scruton similarly argues that the “idea of the law of the land” drew “credibility” from two key procedures, and one was trial by jury. If the Labour administration implements Leveson’s recommendations, it will partially remove one of the core pillars of credibility of the law. Removing juries also removes, as Tocqueville expressed it, “a mode of sovereignty of the people.”

This mode of sovereignty of the people is essential as it acts as a democratic check on the power of the state. For instance, Scruton argued that the jury system “ensured that the law remained responsive to the ordinary conscience, since juries would not convict if the penalty seemed to be severe or the crime a mere formality.” Indeed, Adam Smith argued that “people are generally disposed to favour innocence” in criminal cases. Removing juries and replacing them with new judge-alone courts will not ensure any of the benefits that enhance our liberty and justice that juries provide. Having the general public, via jury duty, participate in the administration of justice improves and enhances the reputation of the law and ensures that the general public sees the law as ours and that it is liberty-enhancing and enabling rather than a top-down imposition on our freedom.

Sir Patrick Devlin remarked that “trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.” It seems to me that this Labour administration desires to extinguish the lamp that shows freedom lives in far too many areas of British life, including trial by jury.

As I began to write this, the US Treasury had just announced the publication of the 2025 Social Security and Medicare Trustees reports. The reports unsurprisingly bring more bad news, highlighting James Capretta’s point that “the economic risks are real and rising with each passing year.” The latest reports show that the combined Social Security Old Age and Survivors and Disability Insurance (OASDI) Trust Funds will only be able to pay full benefits until 2034, one year earlier than reported last year. Meanwhile, Medicare Hospital Insurance (also known as Medicare Part A) is projected to pay full benefits only until 2033, which means funds are now expected to run out three years earlier than previously projected.

This dire state of Social Security and Medicare highlights the need for both forums such as these and for a plan of action. I concur with Capretta’s lead essay that “reforms that involve continuity and gradual change” will be far more palatable to policymakers and voters than radical changes. I cannot, however, turn away those “sharp departures” from our present situation. Being familiar with Capretta’s great contributions to the subject of entitlement reform, I’m sure he would agree that “no singular way forward” includes wrestling with the larger ideas and offering “sharp departures” from the status quo when the situation calls for it. We must be alert to opportunities and have the discernment to know when and how to apply and blend those ideas.

Those of us advocating for entitlement reform cannot lose sight of why entitlement reform is important: sound reforms make it easier for Americans to find work, keep their hard-earned money, and remove barriers to quality care. 

While it is helpful to focus on what can be feasibly achieved in the realm of policy, we cannot ignore those guiding principles and models. F. A. Hayek wrote that those guiding models will come across as entirely out of reach or unfeasible. Being unable to achieve the ideal policy scenario, however, does not mean we should stop at what can be feasibly achieved. By holding our situation up against our principles and ideal models, we hold ourselves accountable. When we realize we are not living up to those ideas, we are stirred to make what feasible improvements we can to slowly move toward those ideals.

Gradualism in Practice

Capretta’s policy insight shines through here, noting that “sharp departures” from current programs (despite having merit) are more likely to be dismissed and ignored. He offers several notable adjustments to Social Security and Medicare.

He notes that “nothing should be considered off the table.” For Social Security, Capretta suggests tax increases, means testing, and raising the retirement age for future retirees as possible strategies. For Medicare, the more complicated of the two, a workable reform plan could involve tax and premium adjustments on the revenue side, with adjustments to inflation indexing on the spending side.

While these adjustments offer gradual change within the status quo, reformers must be prepared for opposition. Even the most modest changes can come under fire as an attack on retirees. Take, for example, the Medicaid reforms in the “One Big Beautiful Bill” Act to reduce future Medicaid spending to $880 billion by 2035. Michael F. Cannon notes that, if this reduction were successful, “the program’s annual growth rate would merely fall from 4.5 percent to 3 percent.” Despite a mere reduction in growth (in other words, Medicaid spending will continue to grow, albeit at a slower pace), opponents of the spending reduction have come out in full force, opposing the reforms.

Capretta also offers regulatory reforms as a means of improving competition in the health insurance market. He discusses the possibility of standardizing insurance offerings and clinical requirements, and revising rules in Medicare, Medicaid, and the commercial market to encourage consumers to choose lower-priced offerings. These reforms may gain more traction, especially when presented as mechanisms to increase access to care and options for care. One obstacle, however, may be the concentrated interests that benefit from maintaining the status quo. As the logic of collective action shows, those concentrated interests, whether they are insurance companies, healthcare providers, or Medicaid recipients themselves, form a relatively small, motivated, and homogenous group with strong interests in preserving and expanding Medicaid. Those shared goals make organizing easier and reduce the risk of free riding, whereas the broader population of taxpayers has more diffuse and less coordinated interests. Elected officials will cater to these smaller groups’ demands in the hopes that doing so will get them reelected.

Capretta’s proposed solutions are within reach, but they will still face opposition, especially from those who benefit from the status quo. This is why we cannot abandon those core principles and ideal models.

Another potential fix not mentioned in Capretta’s lead essay would be closing the Medicaid provider tax loophole.

The Medicaid provider tax is used by states to maximize Medicaid spending paid by federal taxpayers. As Brian Blase and Niklas Kleinworth found, state governments use taxes on insurance companies that participate in Medicaid managed care and then use the money raised by provider taxes to claim additional federal reimbursement, which is then returned to those same providers with added supplemental payments. 

Now that provider tax reform has been solidified into law and there is a proposed federal rule set to strengthen those restrictions, slowing unsustainable Medicaid spending and broader Medicaid reform feel within reach. To that extent, those reforms must also grapple with the same problems caused by the logic of collective action that I mentioned previously. Once again we must reserve some of our capabilities toward winning the battle of ideas.

The Trust Fund Illusion

In terms of changing those tacit ideas about entitlements, I offer one point of contention with Capretta: we cannot concede the truth regarding the nature of the Social Security and Medicare trust funds. While he wrote in a 2023 article that the trust funds were created to ensure long-term financing, it is necessary to clarify what that assurance entails. That assurance is backed by the promise of tax increases, spending cuts, and taking on additional debt, not any prefunded assets. The federal government admitted so in its FY 2000 financial report:

These balances are available to finance future benefit payments and other trust fund expenditures—but only in a bookkeeping sense. … They do not consist of real economic assets that can be drawn down in the future to fund benefits. Instead, they are claims on the Treasury, that, when redeemed, will have to be financed by raising taxes, borrowing from the public, or reducing benefits or other expenditures.

Social Security and Medicare accounts, unlike an Individual Retirement Account or a Health Savings Account, are simply records of tax payments and contain no funds. That assurance is promised through future taxes, debt, and/or cuts to other federal programs.

As my colleague David Rose notes, this does not necessarily make Social Security a Ponzi Scheme, but in some cases, it makes the situation worse than a Ponzi scheme. Rose comments, “Even though a trust fund was built up to deal with this baby boomer problem, it is filled with special securities that must be presented to the Treasury for redemption, which the Treasury can only do by issuing new debt dollar for dollar.” Social Security and Medicare are not voluntary programs (unlike a Ponzi Scheme). Over the lifetime of these programs, politicians eager to secure votes supported changes that increased benefits to current voters at the expense of long-term program viability and broader fiscal solvency.

Many Americans mistakenly picture the money they are paying into these programs through payroll taxes being held in an account tied to their Social Security number. Instead, their payroll taxes are being used to fund benefit payments for today’s retirees, while their benefits will be paid for by future workers, many of whom have yet to be born. When discussing the program’s financing, the American people are at least owed the truth.

What Ideas Will Be Lying Around?

To reform entitlements, we must change hearts and minds. Here, Hayek is again helpful. As he notes in the Constitution of Liberty (and a major focus in The Essential Hayek), the “state of opinion” that determines how policymakers make decisions comes about from ideas that have slowly germinated across society. “New ideas,” Hayek wrote, “start among a few and gradually spread until they become the possession of a majority who know little of their origin.” No society that sees state-controlled healthcare and interventionism as desirable will embrace sound healthcare reform. In Capitalism and Freedom, however, Milton Friedman noted that real change is only produced in the event of a crisis and that change will “depend on the ideas that are lying around.” We will need both the ideal models based in principle as well as the more practical solutions, such as the ones Capretta offers in the lead essay, lying around when the entitlement crisis begins. Ultimately, it will be up to us to discern when and how to apply both types of ideas by remaining vigilant and alert to opportunities.