The Founders of our nation understood that no idea was more central to our Bill of Rights — indeed, to government of the people, by the people, and for the people — than the citizen jury. It was cherished not only as a bulwark against tyranny but also as an essential means of educating Americans in the habits and duties of citizenship. By enacting the Fifth, Sixth, and Seventh Amendments to the Constitution, the Framers sought to install the right to trial by jury as a cornerstone of a free society.
The Framers of the Constitution felt that juries — because they were composed of ordinary citizens and because they owed no financial allegiance to the government — were indispensable to thwarting the excesses of powerful and overzealous government officials. The jury trial was the only right explicitly included in each of the state constitutions devised between 1776 and 1789 . And the criminal jury was one of few rights explicitly mentioned in the original federal constitution proposed by the Philadelphia Convention.
Anti-federalists complained that the proposed constitution did not go far enough in protecting juries, and federalists eventually responded by enacting three constitutional amendments guaranteeing grand, petit, and civil juries. The need for juries was especially acute in criminal cases: A grand jury could block any prosecution it deemed unfounded or malicious, and a petit jury could likewise interpose itself on behalf of a defendant charged unfairly. The famous Zenger case in the 1730s dramatized the libertarian advantages of juries .
When New York’s royal government sought to stifle its newspaper critics through criminal prosecution, New York grand juries refused to indict, and a petit jury famously refused to convict . But the Founders’ vision of the jury went far beyond merely protecting defendants. The jury’s democratic role was intertwined with other ideas enshrined in the Bill of Rights, including free speech and citizen militias. The jury was an essential democratic institution because it was a means by which citizens could engage in self-government.
Nowhere else — not even in the voting booth — must Americans come together in person to deliberate over fundamental matters of justice . Jurors face a solemn obligation to overlook personal differences and prejudices to fairly administer the law and do justice. As the great historian of anti-federalist thought, Herbert Storing, put it, “The question was not fundamentally whether the lack of adequate provision for jury trial would weaken a traditional bulwark of individual rights (although that was also involved) but whether it would fatally weaken the role of the people in the administration of government .
Perhaps most important was the jury’s educational mission. Through the jury, citizens would learn self-government by doing it. In the words of Alexis de Tocqueville, “The jury is both the most effective way of establishing the people’s rule and the most effective way of teaching them how to rule” . This learning, of course, would carry over to other political activity. As Tocqueville explained: “Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free .
They make all men feel that they have duties toward society and that they take a share in its government. By making men pay more attention to things other than their own affairs, they combat that individual selfishness which is like rust in society . [The jury] should be regarded as a free school which is always open and in which each juror learns his rights and is given practical lessons in the law. I think that the main reason for the political good sense of the Americans is their long experience with juries in civil cases” .
Once we see how juries serve as major avenues for popular education and political participation, the connections early American observers drew between jury service and other means of political participation –especially voting-make more sense. Tocqueville keenly understood these linkages: “The jury system as understood in America seems to me to be as direct and extreme a consequence of the . . . sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.
The jury is above all a political institution [and] should be made to harmonize with the other laws establishing the sovereignty . For society to be governed in a settled and uniform manner, it is essential that the jury lists should expand or shrink with the lists of voters . “[In general] in America all citizens who are electors have the right to be jurors. ” We have come to think of voting as the quintessential act of democratic participation.
Historically, the role of the people in serving on juries was often likened to the role of voters selecting legislative bodies, and even to the role of legislators themselves. Indeed, the jury’s place in the judicial framework was closely related to the idea of bicameralism: Just as the legislature comprised two equal branches, an upper and a lower, juries and judges constituted the lower and upper branches, respectively, of the judicial department. The Supreme Court has reinforced the linkage of jury service and voting as part of a “package” of political rights.
For example, in a 1991 case challenging race-based exclusions in jury selection, Justice Anthony Kennedy observed in his majority opinion that “with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process . Whether jury service may be deemed a right, a privilege or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise” .
Later in the same term, Justice Kennedy again invoked the similarity between jury service and voting, observing that just as government cannot escape from constitutional constraints by farming out the tasks of administering elections and registering voters, neither can it evade constitutional norms by giving private parties the power to pick jurors. The link between jury service and other rights of political participation such as voting was also recognized and embraced by the drafters of the Reconstruction amendments and implementing legislation, and still later by authors of various 20th-century voting amendments.
For example, the framers of the Fifteenth Amendment, which prohibited race-based discrimination in voting, understood well that the voting they were protecting included voting on juries: That amendment, drafted and ratified in the 1860s, proved to be a template for later amendments protecting women, the poor, and the young from voting discrimination . Albert Aschuler writes that the weaknesses of jury trials are sometimes ascribed to the mediocre capacity of ordinary citizens to adjudicate matters of law and fact in an increasingly complex society .
It is true that jurors will not always decide “correctly,” any more than voters will always choose the most qualified candidates for public office. But the real problem is not that we rely too much on men and women of ordinary intelligence and common sense to decide questions of fact and value in the courtroom. The problem is that we rely too little. The jury is crippled by constraints imposed by the court professionals.
In the era of the Founders, the jury was no more egalitarian than was suffrage, limited by race and sex and by tests of personal traits thought necessary for judging cases. Over two centuries, even as the right of jury service was gradually extended to all citizens of voting age, the freedom of jurors to participate in the finding of fact in the courtroom was constricted. Contrary to the spirit in which the jury trial was woven into our constitutional fabric, judges and lawyers have aggrandized their own roles in litigation at the expense of the jury.
From what I have read and learned, the deepest constitutional function of the jury is to serve not the parties but the people — by involving them in the administration of justice and the grand project of democratic self-government. Alas, over the years, the search for adversarial advantage by attorneys won out over the values of public education and participation. Judges, charged with protecting these enduring constitutional values, have at times done just the opposite in order to maintain their control over trials.
The jury was to check the judge — much as the legislature was to check the executive, the House of Representatives to check the Senate, and the states to check the national government. It is not surprising that we — as jurors, as citizens-have not fought off these creeping assaults. The benefits of jury service are widely dispersed — they redound to fellow citizens as well as the individual jurors. But the individual juror bears all of the cost — the hassle, the inconvenience, the foregone wages — of jury service.
If the jury system is to remain a central institution of democracy and citizenship, it must be refined. Jury trials must attract engaged and thoughtful citizens; the rules of the courts must treat jurors as sovereign, self-governing citizens rather than as children. To this end, we suggest a number of reforms. In many instances, these changes would require no new laws, but merely a willingness on the part of the courts to unleash the common sense of the ordinary citizen.