Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

5. Living Liberty

81 5 Living Liberty Liberty on Trial For most people, “liberty” is not synonymous with jury duty. Jurors feel like their own liberty—the freedom to live their lives—has been taken by judicial force. You are summoned to court. Day after day, you are told when to arrive, when to leave, and even when you can go to the bathroom. You sit in a particular numbered seat. You watch what others produce for you to watch. The rules of court are decided for you, and though you are a central part of the trial process , you have little independent control. As you watch the parade of witnesses controlled by lawyers, you will not likely be struck by the revolutionary freedom of the jury. As you show up each morning, as you eat courthouse lunches every afternoon, you will not likely see the spirit of liberty in your surroundings.1 Yet historically, the jury trial has been considered the great preserver of liberty in the United States.2 82 / Living Liberty In colonial times, juries were hailed as the bulwark of liberty:3 “On many occasions, fully known to the Founders of this country, jurors—plain people—have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices.”4 At the time of the Founding, juries existed as one of the few local, decentralized, and public sources of power to check the controlling government—be it royal, federal, or state. Jury trials interposed ordinary citizens between judicial officials and the power of the law. Given the history of British tyranny and American rebellion through colonial juries, it should be no surprise that juries became synonymous with the protection of personal freedom and property. As James Madison stated, trial by jury “is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”5 This ennobling vision of the jury as protector of liberty fit within the larger constitutional aspiration of ensuring a governing structure that protected “the people.” Madison distinguished the United States Constitution from its English counterpart by describing the English version as a “charter . . . of liberty . . . granted by power,” and the American model as a “charter . . . of power . . . granted by liberty.”6 By this, Madison meant that the source of liberty derives from the people, not from the government. As mentioned earlier, juries were so connected with liberty that a perceived lack of civil juries in the original text of the Constitution almost undermined the new government .7 Strikingly, during the four months of the Constitutional Convention, the Founders discussed civil juries only twice,8 and quickly decided against including a civil jury right in the text.9 The public reaction to this omission was swift and furious.10 Anti-Federalist authors, using pseudonyms such as “Centinel,” “Brutus,” and “Federal Farmer,” launched criticisms of the new Constitution, voicing concern over the lack of civil jury protections as proof of the tyrannical intentions of the new federal government.11 Living Liberty / 83 This debate over the role of juries threatened to derail the national experiment. At least seven states ratifying the Constitution demanded an immediate amendment that included the protection of the civil jury trial.12 In response, Alexander Hamilton wrote Federalist No. 83, to assure citizens that civil juries were not purposely excluded and were very much recognized as “a valuable safeguard to liberty.”13 The Anti-Federalists’ call to liberty won the day. The inclusion of the right to a civil jury trial in the Seventh Amendment , as well as the criminal jury trial protections in the Sixth Amendment, represented the triumph of liberty concerns in a young nation.14 From this early history, jurors have remained a force to protect the liberty interests of the parties in court. In civil trials, be it against state government or private parties, the jury acts to protect consumers, contracting parties, property interests, and constitutional rights.15 In criminal trials , the jury literally determines the liberty of the accused. In each case, the concept of liberty animates the same jury process many feel so constraining as they sit on jury duty. Liberty and the Constitution Enlightenment More than any other Enlightenment principle that inspired our forefathers, “liberty” was the concept that united America. The Declaration of Independence recognizes the inalienable right to “life, liberty, and the pursuit of happiness .” The Preamble to...