James Creedon
 Photo by Trent Yarnell on Unsplash

Photo by Trent Yarnell on Unsplash

Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them.
— Thomas Jefferson

The constitutional promise to a trial by jury is not merely an individual right; it is necessary to validate law in a democratic system. American history is replete with this notion. John Adams declared, “the common people . . . should have as complete a control, as decisive a negative” in courts as they do in other governmental decisions through their representatives. The Works of John Adams 253 (1850) (Diary, Feb. 12, 1771); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 88 (1998). The Declaration of Independence listed deprivation “of Trial by Jury” amongst many other grievances against King George III. The Declaration of Independence para 19 (U.S. 1776). Alexis de Tocqueville proclaimed, “[t]he jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.” Alexis de Tocqueville, II Democracy in America 273 (J. P. Mayer ed., George Lawrence trans., Doubleday & Co., Inc. 1969) (1840).

So central is the right to trial by jury that it makes a primary appearance in the United States Constitution four times. Twice the constitution secures the right to a jury trial in criminal cases. See U.S. Const. art. III & amend. VI; The Fifth Amendment secures the right to indictment or presentment by a grand jury. See U.S. Const. amend. V. And, the Seventh Amendment secures the right to a jury trial in civil cases. See U.S. Const. amend VII. The Northwestern Ordinance (1787) also memorialized the right to trial by jury.

Historically, the right to trial by jury not only ensured a criminally accused person or civil litigant that her peers, not the State, would decide her fate; the right to trial by jury equally protected the people’s right to judge.  With respect to federal jurisdiction, since the jury was thought to protect individual rights and to compete with centralized government power, an accused person or litigant could not waive a jury. Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the jury, 71 Ohio St. L.J. 959, 969 (2010) (pointing out that juries were considered necessary to a court’s jurisdiction to enter judgment).  Only a guilty plea in a criminal case could cut the jury out. Id.

The institution of the jury has an impeccable democratic origin. “In its original Greek form (demokratia), democracy meant that ‘the capacity to act in order to effect change’ (kratos) lay with a public (demos) composed of many choice making individuals.” Josiah Ober, Democracy and Knowledge: Innovation and Learning in Classical Athens 12 (Princeton University Press 2008). Ancient Athens grappled with the problem of how to design law-making institutions that facilitate equal participation of all citizens without at the same time overburdening the workforce or disrupting people’s daily lives. The solution lied in instituting a representative body of the community to decide for the whole. This was the jury in the People’s Court. Douglas M. MacDowell, The Law in Classical Athens 33-35 (Cornell University Press 1978). The jury in ancient Athens was composed of volunteers.  Any citizen who wished to serve as a juror put his name in for selection.  Volunteers were selected by lot to serve as jurors. See Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes 181-86 (J.A. Crook trns., University of Oklahoma Press 1999). The other decision-making body considered central to Ancient Athenian governance was the citizen Assembly. See Ober, supra at 161. The jury, under the Athenian model, constituted the very essence of democratic government, whereby the people themselves rule in the final analysis of law.

Not all persons in United States history have been fans of lay juries. By the mid-19th Century, judges began to strip the jury of any right to determine questions of law in the Untied States. The Supreme Court of the United States would put an end to any notion that the jury played a role in deciding questions of law in federal courts in Sparf v. United States, 156 U.S. 51 (1895). But even before this, Justice Story, when serving as a district court judge, argued against the wisdom of leaving any question of law to the jury. See U.S. v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545); see also M. D. Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582 (1939); Stacy Pratt McDermott, The Jury in Lincoln’s America (Ohio Univ. Press 2010). The jury’s power to determine civil law was the first to go. Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the jury, 71 Ohio St. L.J. 959, 977 (2010). A struggle ensued between the right of the jury to decide questions of law and fact and the rising legal profession that sought consistency and transparency in the law in the form of canonized legal materials.  This struggle is captured in a pivotal debate in Massachusetts concerning the right of the jury to decide questions of law and fact in criminal trials. 

An Amendment to the Massachusetts Constitution sought to articulate the right of the jury to decide questions of law in response to the Supreme Judicial Court decision to the contrary in Commonwealth v. Porter. 51 Mass. (10 Met.) 263 (1845) (holding against the argument that defense counsel had been wrongfully denied the right to address the legal argument to the jury for them to decide the question of law, and interpreting the state constitutional guarantee of a trial before an impartial judge as overriding any right of the jury to decide questions of law). Amendment proponents argued that the jury had the right not only to “interpret applicable laws” but also to ascertain whether the law was just, and thereby valid. The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 178 (1964).  Invoking arguments reminiscent of Jefferson and Adams, proponents argued that the jury had access to the natural law as much as any trained lawyer, and that it belonged to the people to rescue themselves, “in the name of their declared rights, from an unconstitutional law, or from an unconstitutional interpretation of that law.” Id. at 178; see also 1 The Papers of Thomas Jefferson 134 (Julian Boyd ed., 1950) (“The great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors.”). 

Amendment opponents argued, instead, that the jury was subject to irrational passions and easily swayed by public opinion. Opponents called on Rule of Law values, namely predictability and consistency in the law, to protect a criminal defendant. They argued, additionally, that interpretation of law must be left to professionals trained to broach law’s complex structure. One opponent expressed, “does not every gentleman who has studied the common law as much as I have—and I have studied it considerable—know that the common law is not always common sense? . . . In the case of criminal law, who knows exactly what murder is?” Changing Role of the Jury, supra at 180-81; see also Larsen, supra at 975-79. Even modern opponents of lay juries, especially in civil cases, resort to the same arguments, especially with respect to the complexity of law and limited capacity of laypersons to comprehend the law as such and the interplay of laws in the total legal scheme. Daniel Solove, Should We have Professional Juries? Concurring Opinions Blog available at <> (Professor Solove argues that lay juries in complex litigation is antiquated); John Gastil, et al., The Jury and Democracy: How Jury Deliberation Promotes Civil Engagement and Political Participation 155-56 (Oxford Univ. Press 2010) (setting out various arguments by legal scholars against lay juries in civil cases).

One of the most, if not the most, important shortcomings on the part of jury opponents is a failure to consider the Rule of Law implications on the other side. For law to garner the stability and predictability necessary to guide human conduct, law must achieve and maintain a level of consistency in its application. In order for the law to achieve predictability, the legal order needs more than mere consistency; it also needs clarity and publicity. Publicity requires governing bodies to reduce all laws to publication for public access. Clarity requires the law’s dictates to be understandable to those persons it purports and aims to govern; in other words, clarity shares with publicity the requirement that laws be publicly accessible to all persons.

If a person cannot understand the law,—those requirements in which a representative body reduced public disagreement and a felt need for concerted action into a final decision—then she does just as well to act on her own reasons for action rather than a legislative bodies’ reasons for action. Society may gauge law’s clarity, publicity, and predictability by its accessibility to the public. Early proponents of juries held that natural duties of justice and common sense were guides enough to access legal demands. For law to stray from people’s actual experience seemed an anomaly. Further, for law to stray from the public’s normal reasoning seemed an affront to free, democratic government. 

“Democracy” conceptually entails, at minimum, that the people govern themselves. A democratic legal system seeks to maximize its citizens’ opportunities to exercise their capacity for self-government. Anyone willing to take democracy seriously on its face considers the law’s validity strictly tied to its provenance—a provenance whose normative character aspires to improved democratic governance. 

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