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Warning: Polemic Article!

When the founding fathers wrote the Constitution of the United States they guaranteed the citizens trial by jury.  At that time, the right to sit on a jury was considered a form of political power.  If this view seems strange to you, please keep reading.

Our Constitutional Tradition

The English Background

In 1670, England was far from being a democracy.  The House of Commons belonged to the propertied class, but it had very little power. The unelected, and hereditary, House of Lords could veto any bill passed by the Commons with a simple majority vote. The only power the House of Commons had was a negative power.  It had the power to tax the propertied classes or to refuse to do so.  Remember that the American revolution started with the cry, "No taxation without representation."  The English House of Commons was said to have had "the power of the purse."
However, in that year of 1670, the traditional right of a trial by a jury of the defendant's peers became much more powerful. In what is called Bushel's case, The King’s Chief Justice ruled that a jury could not be punished for bringing in a verdict that the Judge thought was unreasonable.  This gave the commoners jury the right to nullify the King’s law in any specific jury trial. The traditional phrase "the right of trial by a jury of the defendant's peers," reflects the historical tension between the commoners and the nobility.

A Colonial Example From our Tradition of Free Speech and Press

In 1735, jury nullification decided the celebrated seditious libel trial of John Peter Zenger. His newspaper had openly criticized the royal governor of New York. The current law made it a crime to publish any statement (true or false) criticizing public officials, laws, or the government in general.
It is no accident that our U.S. Constitution, and the Bill of Rights, mention trial by jury several times.  Our founding fathers understood the importance of the jury to protect the citizens from any state including a republic.

The Constitutional Function of the U.S. Jury

Alexander Hamilton in the Federalist Paper No. 83 states -

"The friends and adversaries of the plan of the [constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government."

Thomas Jefferson's views were much stronger!  -

"I consider...[trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.. [1789 in correspondence to Thomas Paine]

If you think that Jefferson overlooked the right to elect our representatives, you should consider a second quote of Jefferson, from a letter written also in 1789, while serving. as ambassador to France: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say that it is better to leave them out of the Legislative."

Supreme Court Re-Interprets Our Original Constitutional Traditions

A US Supreme Court decision, (Sparf and Hansen v. U.S.) declared, in 1895, that the jury does not have the right to nullify laws.

The actual case was technically just a ruling, in a bitter split decision, that U.S. states no longer had to inform juries they could veto an unjust law.  However, the majority opinion was that the juries have the power to nullify, but not the right.

If you find the last sentence confusing I don't blame you! I hope that the next paragraph will clear things up a little.

Basically it was the immunity of a seated jury from prosecution for returning a verdict that the judge didn't like that gave the jury members the power to nullify the law.  However: In reality this acceptance of the traditional immunity of a seated jury only limited the full impact of the court's decision.  Everything, up until the verdict is achieved, is fair game.  Trial judges now routinely tell jurors that their only job is to decide if the facts are sufficient to convict, and that if so, they must convict -  but  because of the continued immunity of a seated jury that is a relatively minor issue.  More important is the fact that the ruling allowed judges to limit the speech of trial lawyers, or at least defense attorneys, as well as the constitutional power to interfere in the seating of  individual jurors.

Today defense attorneys can face contempt of court charges if they urge jurors to acquit, because they believe the law is unconstitutional, or that a conviction would be an unjust burden on the defendant.  However, in England, "Rumpole of the Bailey" can still use the following defense - "Yes my client did it!  So what!  Does any member of the jury really believe my client deserves to be punished?"

Judges have almost limitless exclusion rights when seating a jury.  If you have merely read about the case in a newspaper you may be excluded!  Originally, the constitutional function of the jury would have required that the Judge, who represented the government, should have NO power over the jury.  A jury was often addressed as "the Nation."  "Will the Nation please rise" was intoned when the judge entered the courtroom.  The tension between the judge, who represents the government, and the citizen jury, that represents the people, is obvious.

It is true that originally the Bill of Rights was widely, but not universally, understood to only be a bar on the actions of the federal government. However, it would still have applied to juries in Federal Trials. The Supreme Court's decision was a not about states rights.  The court's ruling, accepting juries as having immunity from prosecution for their verdicts, shows that it was a decision about the constitutional function of a jury.

This subject is explored more fully in the book -

JURY NULLIFICATION: The Evolution of a Doctrine,
pub 1998, by Carolina Academic Press, Author: Clay S. Conrad.

This book provides ample evidence, from both before and after the adoption of the U.S. Constitution, that nullification was the central aspect of the constitutional functioning of the Jury.  Early law dictionaries -  Statements by the first Chief Justice of the U.S. Supreme Court -  The definition of jury in the first edition of Websters dictionary - etc.

Recent Further Limitations to the power of the Jury

California has allowed judges to enter jury rooms, under certain special situations to evaluate if the jury is reasoning properly!  These actions have been examined (2001) by the California Supreme Court, and found acceptable based on the 1895 Supreme Court decision. The ability of the Judge to "judge" the reasoning processes of seated jurors, under admittedly rare situations, is only true in California at this time.  However, you can be sure it will be extended to other states and with less narrow requirements over time.  The ability of a juror to vote his or her conscience is an insult to an unrepresentative government's power.  The Supreme Court is as about as unrepresentative as you can get, so they will not likely stand in the way of any legislative act.



        1. The best, but few libraries hold a copy  -
        JURY NULLIFICATION: The Evolution of a Doctrine,
        A Cato Institute Book, pub 1998, by Carolina Academic Press,
        Author: Clay S. Conrad
        Out of stock at Cato Institute but avilable new and used Amazon Nov 2011
        No Kindle version Nov 2011

        2. Lacks much of the legal and historical evidence, but I like the title!
        WE THE JURY: The Jury System and the Ideal of Democracy,
        by Jeffrey Abramson, professor of politics and legal studies
        at Brandeis University, published 2000, Basic Books, Harvard University Press
       The Power of  the House of Lords

       Bushel’s Case (1670) (also spelled "Bushell's Case") is a famous
       English  decision on the role of juries.

       References that are widely available on the web.

       John Peter Zenger ( freedom of the press,  free speech, seditious libel trial )

       Hamilton quotes, and the full  Federalist paper # 83,

       Jefferson's quotes (Google Books)

      The only anchor ever yet imagined by man, by which a government

        Were I called upon to decide

        Sparf and Hansen v. U.S. ( U.S. Supreme Court decision )
        The California Law
        Justices Say Jurors May Not Vote Conscience

        Judges vs Juries


The Jury

Painting The Jury 1861 by John Morgan England

“Freedom,” said the ancient Roman lawyer Cicero, “is participation in power.”

The American Revolution

The American revolution started with the cry, "No taxation without representation." The  importance of this political right becomes much more obvious when we realize that; this was about the only political power possessed by the propertied farmers and merchants!

For the American colonists this was even more true, after the King replaced trial by jury with admiralty military courts for customs trials in the American colonies.  Many historian consider this the final act that guarenteed our colonial revolution.

U.S. Supreme Court - Fuller Court 1899

U.S. Supreme Court Warren Court 1953

The Jury
Bill of Rights

Amendment 6 – Trial by jury

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Amendment 7 - Trial by Jury in  Civil Cases

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Bill of Rights
U.S. States

A magor change in the U.S. Constitution came after the conclusion of the Civil War, with the passage of the 14th Amendment.

At its ratification the Bill of Rights was generally, but not universally,  understood,  to  only be  a  bar  on  the actions of the federal government. Originally the Bill of Rights did not apply to the states. The US Constitution was primarily  designed to be a framework for the federal government.

The following sentence from the 14th Amendment had, and continues to have, long-lasting implications on the application of the Bill of Rights to the states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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