Constitutional Corner – The Duty of the Jury

Constitutional Corner – The Duty of the Jury

Trial by jury, a cherished, “first right,” traces its roots reliably to the 1215 Magna Carta and less reliably back even further, possibly to Alfred the Great (849-899 AD).  At Runnymede, King John was forced to subscribe to (among other things) Article 39, which read:  “No free man shall be captured or imprisoned or disseised of his freehold or of his liberties, or of his free customs, or be outlawed or exiled or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers or by the law of the land.” (emphasis added)

“Judgment of his peers.”  Some today mistakenly believe the Constitution guarantees a trial by a jury of one’s peers, but this is simply not the case; the Constitution levies no such requirement.  This notwithstanding, the tradition established by Magna Carta has made “jury of peers” part of our legal system.  While “peers” had a different context in 1215, today it has come to merely mean “citizens;” you have no guarantee of a jury of your particular sex, race, or even social class.  The Supreme Court has ruled that there is no guarantee a jury will meet certain demographic criteria, and that voir dire challenges based solely on demographic criteria are unconstitutional.

Jury duty joins other “civic duties” seen today as less important than they once were.  An Associated Press-GfK poll has found that Americans’ sense of their civic duty has slipped since a similar survey three decades earlier.  However, there was a time in this country — you could even say that the country owes its existence to it – that civic duty was taken seriously, even religiously.

Sam Adams wrote: “Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual – or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country.”  Notice that Adams assumed that each citizen would vote.

A companion civic duty to voting is of course: jury duty.  Today many citizens try hard to avoid jury duty, concocting inventive “dog ate my homework” sorts of excuses: the unexpected business trip, the sick mother in Florida, the house that’s being re-possessed.

Full disclosure: I’ve been called for jury duty on two occasions but never served; both conflicted with legitimately scheduled business trips.  Each time, however, I expressed my complete support for, even happy anticipation of, serving at some later time.  Never happened.

Business Insider magazine offers “9 Ways to Get Out Of Jury Duty.”  They range from the impractical (“be an ‘expert’ on the case at hand”) to the dangerous (“mention your mental illness or other ‘sensitivities’”).  If all else fails, they suggest you “pretend like you really, really want to be on the jury.”

The Madtbone website has a collection of a couple hundred jury duty excuses, some that apparently worked, some that did not.

Comedian Norm Crosby once quipped: When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.

So why is jury duty something to be avoided rather than something to be, if not embraced, at least tolerated?  Perhaps because we have emasculated today’s juries; we have stripped them of their historic power.

In a July 11, 1789 letter to Thomas Paine, Thomas Jefferson wrote: “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.”  Think about that for a moment: we normally imagine a jury trial as focused on determining the guilt or innocence of the accused, but here Jefferson focuses instead on the jury holding a government to its principles.  This seems an entirely foreign concept, until you consider that juries in this country originally had far more power than they do today.  Today’s juries are given the responsibility and power to render a verdict based solely on the facts, but yesterday’s juries were also empowered to determine the “justness” of a law.

In 1789, 1st Chief Justice U.S. Supreme Court John Jay wrote that: “The jury has the right to judge both the law as well as the fact in controversy.”  In 1796, U.S. Supreme Court Justice and signer of the Declaration of Independence Samuel Chase expressed a similar opinion.  As late as 1941, Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, said: “The law itself is on trial quite as much as the cause which is to be decided.”

What do we mean: the jury can judge the law as well as the facts?  Let’s say a local government passes an ordinance which makes it illegal to wear a blue shirt on Mondays.  Ridiculous, of course, but equally ridiculous laws are on the statute books in states all across the nation.  But let’s say it happened.  Such a “law” flies in the face of natural rights and natural law; what possible public safety or public order justification could be argued for such a sanction?  Citizen Jones disagrees with the law and purposefully violates it, a complaint is made, he is arrested and charged with the “crime;” he asks for a jury trial.  At trial, a properly instructed jury should render a verdict of “Not Guilty” because the supposed “law” is unjust and therefore not valid.  The jury has, in effect, nullified the law.  This doesn’t happen today, primarily because judges are unwilling to give juries such enormous power, and judges thus instruct their juries much more narrowly.

The “Duty of Jury,” is a DVD-based lecture course produced by the Institute on the Constitution.  The course examines the history of the jury system, the issue of jury nullification and ends with a lesson called “A Guide for Prospective Jurors.”  Everyone anticipating a call to jury duty should attend.

For those in the Tidewater region of Virginia, a Duty of the Jury course, conducted by Constitution Leadership Initiative (CLI), will be offered on January 31st 2015, from 8:00am to 5:30pm at 1609 George Washington Memorial Highway, Yorktown, VA (yes, all day, with a break for lunch).  There is a $35 tuition which pays for the Student Workbook.

To register for the course, please contact Gary Porter, Executive Director of CLI at 757-867-9120 or via

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution.  This essay appeared first on Fairfax free Citizen.