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.
August 20, 2005
Excerpted from an opinion by Jon Roland, posted on the Internet to A Matter of Justice (http://www.amatterofjustice.org) on August 20, 2005. Jon Roland is president of the Constitution Society (http://www.constitution.org) and can be reached at firstname.lastname@example.org. The statements and opinions expressed are those of the author and do not necessarily reflect the views of Dr. Bernofsky.