Juries and race in the nineteenth century.

Author:Forman, James, Jr.

How can justice be administered throughout States thronging with colored fellow-citizens unless you have them on the juries?

--Charles Sumner (1)


    The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause prohibits a prosecutor from using his peremptory strikes against a potential juror on the basis of race. (2) Later, the Court extended Batson to a variety of related contexts. In Powers v. Ohio, the Court held that Batson applied even when the defendant and the juror were of different races, holding that a white defendant could challenge the discriminatory striking of black jurors. (3) The Equal Protection Clause prohibits discrimination only by state actors, but in Edmonson v. Leesville Concrete Co., the Court held that private civil litigants were to be regarded as state actors when they used their peremptory strikes. (4) The Court went one step further in Georgia v. McCollum, holding that even criminal defendants were state actors when exercising peremptories. (5)

    These cases prompted disagreement among the Justices on important questions, including whether a juror's race might influence his view of a case. In Powers, Justice Kennedy flatly rejected such a notion, arguing that to accept it would be to recognize "the very stereotype the law condemns." (6) His conclusion in Edmonson was similarly resounding: Our "progress as a multiracial democracy" mandates that litigants "satisfy themselves of a jury's impartiality without using skin color as a test." (7) While Kennedy's position has consistently held a majority of the Court, Justice O'Connor has taken the opposite view: "We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be." (8)

    Also in dispute has been the question of whose rights are violated by discriminatory jury selection. The prevailing view, again pressed most vigorously by Justice Kennedy, is that there are three harms: to the defendant, to the excluded juror, and to the community at large. (9) This rationale has allowed the Court to extend Batson to all parties in all trials, because whenever a litigant uses a discriminatory strike, somebody is harmed. Again, this view has been challenged, with Justices O'Connor, Scalia, and Thomas arguing that only criminal defendants were meant to be protected by the rule against discriminatory strikes. (10) In McCollum, for example, Thomas wrote that prohibiting a defendant from using race-based peremptory strikes "exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death." (11)

    On its face, this line of cases evokes the legacy of Reconstruction, when racial inclusiveness on juries was a major constitutional and legislative issue. In deciding these cases, however, the Court has rarely examined debates from that period. (12) This Essay attempts to provide what is missing from the Court's jury discrimination decisions: a discussion of how various parties during the antebellum and Reconstruction eras thought about juries, and especially how they thought about juries and race. (13) In Part II, I focus on the abolitionists' views of the jury. I suggest that while the Court has traditionally recognized the primacy of juries to the political philosophy of the colonial era, juries became even more important during the abolitionist movement. Specifically, the abolitionists' struggle against fugitive slave laws deepened their commitment to jury trial--a commitment that had existed in some form since colonial times.

    The abolitionists' struggle also helped set the stage for developments during the Reconstruction era, the subject of Part III. During Reconstruction, I argue, the abolitionist belief in juries as protectors of liberty came under challenge. After the Civil War, all-white Southern juries refused to indict or convict white defendants accused of crimes against blacks. In response, Reconstruction Republicans did not abandon the jury trial. Instead, they worked to eliminate barriers to black participation in the legal system, with a view toward ultimately securing the right of blacks to serve as jurors. They had come to recognize that the exclusion of blacks from juries made it impossible to achieve justice in Southern courts.

    But just as important as the abolitionists' decision to end discriminatory jury selection was their reason for doing so. Blacks and Reconstruction Republicans were grappling with many of the issues that divide the Court today. One was the question of whose rights were violated by discriminatory selection. On this point, the historical record yields no single answer--different legislators took differing positions. But a common theme does emerge: The greatest legal injustice of the era was the failure to protect black victims of white violence, and most of the jury arguments were framed with that problem in mind.

    Consideration of this historical reality would go a long way to resolving the debate presented in McCollum, where the Court struggled over whether white defendants charged with assaulting black victims could use their strikes to remove blacks from the jury. Writing for the Court, Justice Blackmun held that they could not, but in doing so he failed to refer to any of the evidence that protecting black victims from all-white juries was one of Reconstruction's goals. (14) Blackmun's ahistorieism was matched by the revisionism of Justice Thomas, who argued in concurrence that protecting black defendants was the sole goal of Reconstruction. (15) Again, as we shall see, the historical record says otherwise.

    On another question, the Reconstruction debates provide even greater clarity. Reconstruction Republicans would be quite surprised by the current Court majority's assumption that a juror's race is irrelevant to how that juror is likely to perceive evidence, evaluate witnesses, or make judgments in a case. Reconstruction Republicans' case for racially diverse juries was grounded in the understanding that people's life experiences were significantly influenced by their race, and that these experiences, in turn, often made a difference in how they performed as jurors. So while the current majority believes that eliminating jury discrimination must be predicated on the belief that race is irrelevant, Reconstruction Republicans fought to end jury discrimination because of their contrary belief that race is significant. Accordingly, I conclude by suggesting that if the Court were to give more attention to Reconstruction, it would find a basis for its jury discrimination holdings that is more firmly rooted in history and more consistent with the emerging empirical evidence about race and juries.


    To understand Reconstruction, we must pay careful attention to abolition, for the Reconstruction Amendments grew out of the political and constitutional theory of the abolitionists. (16) This is especially true when considering the right to jury trial, for the jury was of central concern both before and after the Civil War. While the Court has long understood the centrality of the right to jury trial in the colonial era, it has not recognized the contribution of abolitionism to our modern understanding of the jury.

    Emblematic of the Court's approach is Duncan v. Louisiana, in which the Court held that the Sixth Amendment right to trial by jury applies to the states via the Fourteenth Amendment's Due Process Clause. (17) Duncan focused exclusively on the jury's role in the colonial era. The Court noted that the revolutionary generation hated unchecked federal or state power as well as corrupt colonial judges whose allegiance lay with the Crown. (18) Their safeguard was the jury, the only institution that provided for "community participation in the determination of guilt or innocence." (19)

    Duncan's choice of history is significant. The absence of attention to the Fourteenth Amendment's historical context stands out, given that Duncan was an incorporation case. Similarly absent is any reference to the abolitionists, who were not only the intellectual forebears of the Reconstruction legislatures, but who also, as we shall see, had substantial experience with distant authority overriding community sentiment. In this Part, I explore the way in which abolitionist experience with the fugitive slave laws reinforced the colonial understanding of the jury as the People's last check against oppressive government and arbitrary official power. (20)

    1. The Centrality of the Jury to Abolitionist Thought

      The federal fugitive slave laws ensured that "[w]hether they liked it or not, Northerners were part of a political compact that provided for the rendition of fugitive slaves." (21) Part of the nineteenth-century abolitionist struggle was a response to that political reality. Many abolitionists sought to interfere with the implementation of the fugitive slave laws, and all sought to protect free blacks from being kidnapped and falsely claimed as fugitives. Juries became central to both of those efforts.

      The Fugitive Slave Clause of the Constitution, passed with virtually no debate, stated:

      No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (22) As the text makes clear, while the Clause gave a slaveowner the right to have his property "delivered up," the law was not self-executing. Among other things, it did...

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