In December of 1776, the American Revolution was, by every rational measure, finished. Washington's army had been chased out of New York, chased across New Jersey, and chased over the Delaware; of the twenty thousand men he had commanded in the summer, fewer than five thousand remained, many shoeless, most unpaid, nearly all due to walk home when their enlistments expired at the new year. Marching with that dissolving army was Thomas Paine, who by tradition wrote on a drumhead by campfire light the words that Washington ordered read aloud to every regiment before the crossing at Trenton: "These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman."
Paine wrote thirteen Crisis papers before the war was won. Each was occasioned by a moment when the cause looked lost, and each made the same demand: look squarely at the thing you are afraid to look at, name it in plain words, and then act like a free people. This essay is written in that tradition and under that title, because the crisis it describes is of the same species he described — a government's machinery turned against the governed — though it wears a different uniform. The redcoats of our day sit on benches. The crisis of our day is in the courts.
What the Revolution Was Actually About
Schoolbooks reduce the Revolution to a tax dispute. Read the Declaration of Independence — the actual bill of particulars — and count what the grievances are about. "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." "He has obstructed the Administration of Justice." Depriving colonists "in many cases, of the benefits of Trial by Jury." Transporting the accused "beyond Seas to be tried." Protecting the King's soldiers, "by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States." Of the twenty-seven grievances, the largest single cluster concerns the corruption of courts and the immunity of officials. The Revolution was, before it was anything else, a revolt against a two-tiered legal system: one tier for the Crown's men, who could not be touched, and one for everyone else, who could not be heard.
The Founders' remedy was not to abolish judicial power but to domesticate it. Juries of ordinary citizens standing between the state and the accused — a right so central it appears in the Constitution's original text and then twice more in the Bill of Rights. Judges with secured tenure so they could defy the executive, but subject to impeachment so they could not defy the law. And beneath it all, the axiom Paine stated in Common Sense with typographical thunder: "in America THE LAW IS KING." No man above it. No office a sanctuary. The mock trial of the Boston Massacre soldiers, the protected murderer, the untouchable official — these were the things the new nation was built to make impossible.
Now look at what stands on that foundation.
The Return of the Protected Class
Over the last half-century, and almost entirely without a single vote of any legislature, the federal courts have constructed for American officials a system of immunities more comprehensive than anything George III ever offered his soldiers. Judges enjoy absolute immunity from civil suit for their judicial acts — a doctrine the Supreme Court pressed so far in Stump v. Sparkman in 1978 that it shielded a judge who ordered a fifteen-year-old girl sterilized without a hearing, without counsel, without even telling her; she learned years later, married, why she could not conceive. Prosecutors enjoy absolute immunity for their advocacy, a rule announced in Imbler v. Pachtman in 1976 and stretched since to cover conduct up to and including the knowing presentation of fabricated evidence — the very conduct this series documented in the Duke lacrosse case, where the exception that finally caught Mike Nifong proved the rule that catches almost no one else. Police and every other executive officer enjoy qualified immunity, an invention of the courts refined in Harlow v. Fitzgerald in 1982, under which an official who violates your constitutional rights answers for it only if a prior court decision had already condemned nearly identical conduct — a standard that protects everything done for the first time, and much done for the hundredth.
None of these doctrines appears in the Constitution. None was enacted by Congress. Each was conjured by judges, for the benefit of the government of which judges are a branch, and each answers to the same logic the Crown's lawyers used in 1770: the King's business requires that the King's men be shielded from the King's subjects. The Declaration called that a mock trial. We call it settled precedent.
The Vanishing Jury
And what of the jury — the institution John Adams called the heart and lungs of liberty, the one place where the citizen outranks the state? It has been quietly starved to the edge of extinction. In the federal system today, roughly nineteen of every twenty criminal convictions are obtained not by trial but by plea, extracted under charge-stacking and sentencing differentials so severe that scholars across the political spectrum describe the choice as coercion in all but name. Trials — actual trials, with citizens in a box weighing the state's evidence — now resolve only a small fraction of federal criminal cases. The right the Founders enshrined three separate times has become, for the ordinary defendant, a trap door: exercise it and lose, and you will serve years more than the identical man who waived it. The system punishes the assertion of the right itself. The Crown never managed anything so efficient. It had to suspend juries by statute, in public, and it lit a revolution doing so. We suspended them by leverage, in proffer rooms, and hardly anyone noticed.
This is the two-tiered system, fully restored and running smoothly. Tier one: officials who cannot be sued, judges who are almost never removed, prosecutors who are almost never disciplined even when appellate courts find their misconduct in published opinions. Tier two: citizens who can no longer realistically reach a jury, facing a state that wins by attrition. This series has spent months filling in the particulars — the judge who jailed a lawyer in a basement cell, the raids conducted without warrants, the massacres that produced not one conviction, the innocents convicted while the guilty were promoted. Each installment ends the same way because the system is built to end the same way. Accountability is not failing. It has been architected out.
The Summer Soldier, 2026
Paine's most famous sentence is usually quoted as a compliment to the brave. It was written as an indictment of everyone else. The summer soldier and the sunshine patriot were not Tories; they were supporters of the Revolution — men who cheered independence in July and went home in December, who loved the cause exactly as long as it cost them nothing. Every age has them, and ours have never been more comfortable. The sunshine patriot of 2026 recites the Founders at ribbon-cuttings and confirmation hearings while defending doctrines the Founders would have listed as grievances. He solemnly warns that criticizing courts endangers the rule of law, while the courts he defends have exempted their own officers from it. He calls jury trials sacred in speeches and makes them impossible in charging memos. He would have been at Trenton, Paine tells us, in the summer.
"Tyranny, like hell, is not easily conquered," the first Crisis continues, "yet we have this consolation with us, that the harder the conflict, the more glorious the triumph." But between the famous lines sits the sentence that matters most for us: "What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value." The rights of 1791 came dear — bought at Trenton and Saratoga and a hundred nameless fields — and so the generation that paid for them guarded them jealously. We inherited them for free, and we have esteemed them accordingly: traded the jury for efficiency, accepted immunity as the price of governance, learned to read "no one was held accountable" at the end of every story and turn the page. A long habit of not thinking a thing wrong gives it a superficial appearance of being right. Paine wrote that about monarchy. It describes our case law.
Why This Is a Crisis and Not a Complaint
A skeptic will answer: every era has judicial scandals; the system self-corrects; this is reformism dressed in a tricorn hat. The answer is arithmetic, not costume. A system self-corrects only if its correction mechanisms function. Name them. Impeachment of federal judges: a handful of convictions in the history of the Republic, a remedy so dormant it is invoked less than once a decade while the bench numbers in the thousands. Civil suit: barred by the immunities described above. Bar discipline for prosecutors: studies of documented misconduct find public sanction in a small minority of even the proven cases. Elections: the crisis papers of this series have already shown what re-election rates mean when districts are drawn by the incumbent class. Each door the Founders built has been closed, welded, and painted over — not by a tyrant in a single decree, but by the patient accumulation of doctrines, each reasonable-sounding alone, that together restore precisely the arrangement the Declaration was written to destroy: power that judges itself.
When every internal correction fails, correction must come from outside the system — from the sovereign the system forgot it had. That is what revolution means in the American sense: not the storming of buildings, but the reassertion of ownership. The people did it in 1787 when they scrapped an entire national government that could not be fixed from within. They did it in 1868 when they rewrote the Constitution's very structure over the objection of the class it restrained. The tools remain: the amendment power, the state conventions, the ballot wielded with intent rather than habit, the jury box used as the veto the Founders designed it to be, the refusal — organized, lawful, and absolute — to keep pretending that doctrines written by the protected class in its own favor command anything but our contempt.
Paine closed the first Crisis with an image: a father, having fled the fighting, holding his child's hand and muttering, "Well! give me peace in my day." A generous parent, Paine said, would have said instead: "If there must be trouble, let it be in my day, that my child may have peace." That is the whole question of this essay, put as he put it. The two-tiered system will not dismantle itself; protected classes never do. Either this generation does the unglamorous, entirely lawful, entirely constitutional work of tearing the immunities down and standing the courts back up on their original foundation — or it hands its children a country where the law is king in the schoolbooks and the king is law everywhere else.
These are the times that try the courts of a free people. The courts are failing the trial. The verdict, as the Founders arranged it and as the next essays in this series will show, still belongs to us.