The Jury's Constitutional Role, Originalism, and Judicial Usurpation © by Tom Glass* I. Introduction.......................................................................................................................... 3 II. The Originalist Method ....................................................................................................... 4 III. The Evidence of Support for Jury Power by the Founders ............................................. 7 A. The Political and Intellectual Atmosphere of the Founding Era........................................... 7 1. Liberty and Justice for All ................................................................................................. 7 2. Natural Law Concepts Underlie Jury Power ..................................................................... 8 B. Defining The Jury ............................................................................................................... 15 C. The History of the Jury as the Founders Knew It ............................................................... 19 1. John Lilburne – Father of Most Criminal Procedural Rights .......................................... 19 2. William Penn, William Mead, and Bushell’s Case.......................................................... 22 3. The Restoration, the Seven Bishops’ Case, and the Glorious Revolution ....................... 27 4. Zenger’s Case – Press Freedom Protected by a Law-Judging Jury................................. 31 5. The Battle over Libel in Eighteenth Century England..................................................... 36 D. Comments on the Jury by the Founders.............................................................................. 41 1. Judging the Law as Well as the Facts .............................................................................. 41 2. The Structural Argument – Juries Represent the People in the Judiciary........................ 45 3. Juries – The Palladium of Liberty.................................................................................... 50 E. State Constitutions and the Sedition Act............................................................................. 52 1. Georgia and Pennsylvania State Constitutions ................................................................ 52 2. The Sedition Act .............................................................................................................. 58 F. Jury Practices of the Founders............................................................................................. 59 7/24/07 1 1. The Impeachment of Samuel Chase ................................................................................ 59 2. Trials and Instruction to the Jury ..................................................................................... 63 3. Prohibition Against Striking Jurors With Opinions of the Law ...................................... 68 4. Counsel Argued Law to the Jury ..................................................................................... 68 5. Triors and Challenge to the Favor ................................................................................... 70 IV. Arguments that the Founders Opposed Jury Power and Subsequent History............ 71 A. Arguments That the Founders Opposed Jury Power .......................................................... 71 1. More About the Originalist Method ................................................................................ 72 2. Dueling Dicta in Sparf v. United States........................................................................... 73 3. Academic Critics of Jury Law-Judging ........................................................................... 80 B. American Courts Since the Founding and Judicial Usurpation .......................................... 83 V. Conclusion .......................................................................................................................... 85 * - Tom Glass holds an MBA from Harvard University (1981) and a B.S. in Chemical Engineering from Texas A&M University (1979). He is a December, 2007 J.D. candidate at the University of Houston Law Center, and can be reached at [email protected]. 7/24/07 2 I. Introduction The vast majority of today’s judiciary, as evidenced by appellate court rulings, is hostile to the practice commonly known as jury nullification.1 But there is persuasive evidence that the American Founders (including the judiciary) held diametrically opposing views from today’s judiciary about the value of jury review of the merits of the law in criminal trials. Using originalist jurisprudence as articulated by Justice Antonin Scalia, this paper explores the evidence of the Founders’ views and practices, and concludes that an originalist application of the Constitution to jury power would produce very different courtroom practices and attitudes from those which currently prevail. Although this paper is written primarily for those with an originalist perspective, marshalling evidence of the content of the concept of the jury held by the Founders and avoiding discussion of why we should accept the Founders’ understanding, the Founders’ own arguments for jury review should also be interesting to those who do not adhere to the originalist approach. This paper will study the Founders' views on a criminal defendant's right to argue through counsel to the jury the constitutionality or propriety of the law under which the defendant is being prosecuted, the proper role of the judge and the jury in the republican system of ordered liberty detailed in the United States Constitution, the instructions that criminal trial judges should give juries about those roles, and the propriety of striking jurors for cause should they express opposition to the law under which the defendant is being prosecuted. Part II briefly reviews the originalist method. Part III reviews the evidence that the Founders supported jury review of the merits of the law in criminal trials. Part III.A explores the 1 E.g., U.S. v. Sepulveda, 15 F.3d 1161, 1189-90 (1st Cir. 1993). Jury nullification is the “exercise of jury discretion in favor of a defendant whom the jury nonetheless believes to have committed the act with which he is charged.” THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL JURY TRIAL, 1200-1800 xiii (1985). 7/24/07 3 intellectual atmosphere in the founding era, including the perspectives of the history and philosophers that the Founders studied and respected. Part III.B discusses contemporary definitions of "jury" and Part III.C details the history known to the Founders of how juries had acted to protect liberty. Part III.D presents the extensive commentary by the Founders on the role of the jury. Part III.E looks at the explicit state constitutional provisions protecting jury review of the law and similar language to that effect in the Sedition Act, and Part III.F covers courtroom practices in the founding era. Part IV addresses the significant arguments disputing that the Founders considered jury law-judging an integral part of the definition of the criminal trial jury. Several of the sources normally used by originalists in interpreting the Constitution do not give us evidence of the Founders’ views on the issue. There are no explicit textual references to jury review of law in the U.S. Constitution, and the issue was not discussed in the Constitutional Convention or the Federalist papers. We do, however, have a quote from the Massachusetts convention ratifying the U.S. Constitution and individual rights provisions in the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790. We also have multiple quotes from the most prestigious Founders on the topic, including three of the six original U.S. Supreme Court Justices. We have examples of practice in the early courts and two dictionary definitions from the founding era. But, the most powerful argument for what this analysis will contend was the Founders’ perspective on jury power is their views on natural law and the logical application of natural law philosophy to the institution of the criminal trial jury. II. The Originalist Method 7/24/07 4 Justice Scalia described the originalist method in a speech in 1988 that was recorded in a law review article entitled Originalism: The Lesser Evil2 and in an essay entitled Common-Law Courts in a Civil-Law System.3 He applied the approach to the Sixth Amendment in United States v. Gaudin4 and Crawford v. Washington.5 The objective of originalism is “to establish the meaning of the Constitution, in 1789.”6 This is done by using the evidence of “the text of the Constitution and its overall structure,” contemporaneous understandings of the Constitutional doctrine in question (“particularly the understanding of the First Congress and of the leading participants in the Constitutional Convention”), the “background understanding” of the doctrine in question “under the English constitution,” and the nature of the doctrine in question “under the various state constitutions in existence when the federal Constitution was adopted.”7 Also to be considered are “the records of the ratifying debates in all the states.”8 Originalism also requires “immersing oneself in the political and intellectual atmosphere of the time – somehow placing out of mind [the] knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.”9 When doing