The jury as a political institution: an internal perspective.

AuthorBurns, Robert P.
PositionThe Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. HISTORICAL CONSIDERATIONS A. Contrasting Senses of the Political B. Hannah Arendt and the Political Nature of the Jury II. THE AMERICAN TRIAL AS A POLITICAL FORUM A. Two Recent Calls for an Increasingly Political Role for the Criminal Jury CONCLUSION INTRODUCTION

In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term "political" in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between "the political" and the "the legal" and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American trial, as we actually have it, is a political institution. I argue that attention to our actual linguistic practices at trial reveals the jury trial to be a hybrid institution, with aspects of traditional legal formalism, but one in which the jury is finally asked to make what we may fairly call a political judgment about what is most important in the case. Finally, I will describe two recent important attempts to revive the political dimension of the work of the jury in the context of criminal law.

First, I address the nature of the question lawyers ask when we ask whether the jury is a political institution. This sort of question inevitably has both descriptive and normative dimensions. One can describe the actual practices in which lawyers are engaged at trial. Additionally, one can try to determine whether each of those practices is consistent with something like the "true function" or the "legitimate function" of the jury trial in the American constitutional order. Lawyers' practices may be consistent or inconsistent with broader philosophical commitments--for example, the lawyer's preparation of witnesses or his ability to engage in a very minimally constrained "free narrative" in his opening statement that defines "what this case is about" in a way that appeals to a whole range of norms, including those that may not be embedded in the "law of rules," as Justice Scalia likes to put it. (1) However, I agree with the proposition that those broader commitments should be generally consistent with what John Rawls calls our "considered convictions of justice," (2) the specific determinations often embedded in institutions and practices in which we have the greatest confidence. The relationship between particular practices and broader philosophies is normatively indeterminate, indeed circular. We may modify our practices in light of our broader political philosophy or modify our philosophy by careful attention to our actual practices. As is true at trial itself, one achieves insight into these matters by "a continuous dialectical tacking between the most local of local detail and the most global of global structure in such a way as to bring both into view simultaneously." (3) We can ask in a specifically doctrinal idiom whether we ought to structure our trial practices so as to permit the jury to engage in political deliberation at trial. Or, we can ask that question in a more theoretical and normative idiom, in which case we are best served through some attempt to reach what Rawls calls "reflective equilibrium," a (temporary) balance between our practices and our broader self-understandings. (4) My own inclination is conservative in these matters because I believe that most of the specific practices in which we engage at trial reflect a good deal of inherited wisdom. (5)

  1. HISTORICAL CONSIDERATIONS

    Here, I am not focused on making the case for the political nature of the American jury through considerations of constitutional history. The Founding Fathers' understanding of English history and their experience of the jury trial during the colonial period convinced them that it was a key expression of American political liberty. (6) They embedded the criminal jury trial for federal prosecutions in the original Constitution and then, with a sharper geographical focus, in the Sixth Amendment. (7) In enacting the Seventh Amendment, which was extraordinarily important to the AntiFederalists, the first Congress reflected the view that juries would act in political ways, different from the expected performances of judges. (8) The United States Supreme Court has held that the right to a jury trial is a fundamental right for purposes of selective incorporation into the Fourteenth Amendment's due process clause, addressing the jury's institutional purpose "to prevent oppression." (9) In their magisterial study of the American jury trial, Kalven and Zeisel found that the jury has acted in obviously "political ways," for example, to punish police misconduct. (10) Akhil Amar has argued that the jury trial is at the heart of the Bill of Rights and that the broadly accepted notion that the jury ought to be the "judges of law, as well as fact" reflects a conviction that the jury retained some of the preconstitutional sovereignty of the people. (11) This vision, in Amar's view, continues:

    [E]ven today remnants of the Founders' vision remain, in doctrinal rules preventing judges from directing verdicts of guilt or requiring special verdicts in criminal cases; barring trial judges from reversing, and appellate courts from reviewing, criminal jury acquittals; allowing criminal defendants to escape government efforts to use collateral estoppel offensively; and preventing challenges to inconsistent criminal jury verdicts. (12) I believe that it continues in less overtly doctrinal ways, implicit in the trial's linguistic practices, many of which are incomprehensible if the jury is understood solely to be a trier of fact in any simple sense. (13)

    Tocqueville is, of course, the classic theorist of the jury trial as a political institution:

    The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. If these two elements be removed, the love of independence becomes a mere destructive passion. It teaches men to practise equity; every man learns to judge his neighbor as he would himself be judged.... The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue cannot exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society. (14) Although acknowledging the importance of the civil jury, this commitment is even more poignant in the criminal context. According to Tocqueville, "The jury is above all a political institution, and it must be regarded in this light in order to be duly appreciated.... He who punishes infractions of the law ... is ... the real master of society." (15)

    One can say much more about this history, as several of the other contributions to this issue attest. (16) In my view, however, it is not ultimately significant, because the historical narrative may be subject to competing interpretations and is subject to the kind of circularity that the achievement of reflective equilibrium always involves. The extent to which the civil or criminal jury should function as a political institution has been a contested issue over the two hundred years of our history. The story can be told a number of ways. It may be told as an assertion of the political jury as continuous with the heart of the republican vision of the founders, a view that Justice Brennan embraced in the context of civil cases in his concurrence in Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry}1 Alternatively, it can be told as the slow erosion of jury authority in light of more "modern" understandings of the trial, in which the "rule of law as a law of rules" is increasingly important. (18) The latter argument would accept, either with joy or with resignation, the alleged normative significance of a more impersonal, amoral, and increasingly global market economy that operates by "systems imperatives" over which contextual moral and political judgment should have no say. The question of the appropriate role of the jury trial is intertwined with, and partially determinative of, the best way to tell this historical story. I think there are better and worse ways to tell the story, but that judgment is dependent on political and philosophical judgments we must make today. Those judgments should be keenly attentive to our considered judgments of justice embedded in the actual practices of the American jury trial.

    1. Contrasting Senses of the Political

      Discussions of the political nature of the jury can draw on quite different understandings of that term. Of course, the jury trial is a rule-bound set of practices. Those rules--rules of procedure and evidence, on the one hand, and the rules that form the substantive law and find their way into the jury instructions, on the other--have authority because they have been promulgated by constitutionally legitimate entities, courts and legislatures. These rules are what make the trial what it is. They are "constitutive rules," (19) of a public nature. So in a trivial sense, jury trials are political processes because they have been constituted by public institutions.

      But we usually mean more than that when we ask whether a jury trial is a political event. A traditional, Aristotelian distinction exists between...

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