The Importance of Juries

The Founders' wisdom was that things like "declarations of rights" and "limited delegations of powers" are just "parchment barriers", as Madison put it. They thought the only way to preserve rights was to set up opposing forces that would not have an incentive to unite, but which would remain rivals and in their rivalry provide an opening for intervention by members of the general public to enforce compliance with the Constitution.

In other words, the Constitution, and for that matter all laws and governmental institutions, were not expected to remain faithful to the Constitution without intervention from random outsiders.

The main avenues for outside intervention were trial and grand juries, private prosecutions, and private prosecutions of public rights in court. All of these avenues have now been largely closed. Grand juries are no longer random but stacked with the cronies of politicians, and prosecutors have taken them over, shutting out private citizens. Trial juries are kept uninformed, stacked, misinstructed, and generally manipulated. Private prosecutors are being shut out, especially from grand juries and from private prosecutions of public rights — beginning with the Frothingham decision and the doctrine of standing only for those who have been personally injured by a violation of their rights.

So while there are some structural and procedural innovations that might be adopted, most of what is needed is to undo the subversions of what worked in the Founding Era. People need to demand that almost all cases, even equity cases, be submitted to a jury, and that all arguments of law be made in their presence. Grand juries, selected at random, should be set up for every neighborhood of 3,000 people, and more private prosecutions, both criminal and for the protection of public rights, should be made available without the need to have been personally injured.

Jon Roland
August 20, 2005

Excerpted from an opinion by Jon Roland, posted on the Internet to A Matter of Justice ( on August 20, 2005.  Jon Roland is president of the Constitution Society ( and can be reached at  The statements and opinions expressed are those of the author and do not necessarily reflect the views of Dr. Bernofsky.

Inns of Court Jury Statistics Supreme Court Judicial Reform Home