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Sunday, March 26, 2023

SG to the Court: Originalism Requires Jury Lawfinding

A month ago, the Solicitor General reported to the Court that defendants have been denied the right to the full jury trial intended by the Framers in every case, state and federal, which has been tried at least since the end of the 19th century. Smith v. United States  is a venue case; I wrote about the venue issue at SCOTUSBlog. But in addressing the venue question, the SG revived a controversy with comprehensive implications. The SG explained that one of the “original purpose[s]” of venue, and “one at the center of the Framers’ debates on the issue, was to allow the jurors to serve as the conscience of the community through interpretation of law.” (Br. at 9) Quoting Drew Kershen’s work Vicinage Part II, the SG explained that venue provisions were designed to “enable the jury to ‘serve as the conscience of the community.’ That concept included ‘not simply [the jury’s] interpreting the law’ to apply to the facts, but the jury’s potential ‘to disregard clearly applicable law’ with which it disagreed.” (Br. at 29). The Framers’ juries, in the SG’s view, had not only the raw power of nullification against the law, but the institutional duty and responsibility to mitigate application of laws which would otherwise be unduly harsh. To be sure, as the SG pointed out, the Supreme Court rejected that role for the jury in the 7-2 decision in Sparf & Hansen v. United States, 156 U.S. 51 (1895). But while the majority marshalled much judicial authority, it was the dissent which was most interested in the views of the Framers and the leading authorities at the time the Constitution was adopted. The SG’s brief declared, in effect, that the dissenters were right.

The SG’s position is consistent with the view that many academics have taken in scholarship over the last several decades. Joan Larsen asserts that “the jury of the founding generation had powers and rights that went beyond the fact-finding power of the modern jury. The Founders' jury also had the right to judge the law, a right that criminal juries would not lose until well into the nineteenth century.” Jenia Iontcheva Turner claims that “[t]he authority of the criminal jury to determine law as well as facts was taken as self-evident in many colonies.”  According to Rachel Barkow, “there is evidence that, both before the Framing and for a time thereafter, juries were deciding questions of law.” Darryl Brown claims that “juries at one time explicitly possessed the power to judge the law as well as the facts.”

To be sure, some scholars disagree or find the evidence more mixed: William E. Nelson seems to report variation among colonial jurisdictions, and Stanton Krauss doubts what he calls the “conventional wisdom” about early jury authority. However, the point of originalism as I understand it is not to assess colonial practice, but to ascertain what the Framers intended. The SG has supplied a specific answer to that question.

I am in no position to opine on the ultimate issue. But this is a Court which believes the proper method of interpreting the Constitution is originalism. It is not fanatical about following existing precedent which was, in its view, erroneously decided.  The Court is also willing to dig deep; the Court quite recently rejected the non-unanimous jury based on a careful examination of historical practice. And few would deny the Solicitor General’s insight and influence on the interpretation of the Constitution. Accordingly, every criminal defense attorney in the United States should take this as a command, starting now, to contend that the Solicitor General is absolutely right, and that faithful application of the original public meaning of the jury trial right requires instructing jurors that it is up to them to determine not only what happened, but whether it was wrong. The Solicitor General may recant or the Supreme Court may ultimately read the history differently. But it is difficult to overstate the transformation of the criminal justice system which would ensue if juries were allowed to acquit simply because they, functioning effectively as a legislature for a particular case, did not find that a person should be convicted. The Solicitor General’s brief makes jury law-finding a live issue that must be addressed.

Posted by Jack Chin on March 26, 2023 at 07:03 PM in Criminal Law, Judicial Process, Legal History | Permalink


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Posted by: OliviaErin | Feb 23, 2024 5:35:01 AM

is the argument that the Framers believed the Seventh Amendment applies to the states? Unless they did, "in every case, state and federal," is incorrect. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833), etc.

Posted by: Greg Sergienko | Jul 13, 2023 12:10:26 PM

Just quoting from:



A judge, from his training and discipline, is more likely to give proper interpretation to highly technical patents than a jury and is in a better position to ascertain whether an expert's proposed definition fully comports with the instrument as a whole. Finally, the need for uniformity in the treatment of a given patent favors allocation of construction issues to the court.



Posted by: El roam | Mar 27, 2023 4:07:47 AM

Very interesting post.

The related article (Stanton D. Krauss) suggests clearly by the way, that as least in Rhode Island at the time, criminal juries took an oath to decide cases "according to Law and Evidence". But it does remain unclear and mystery for the rests or the whole picture it seems.

Also, "serve as the conscience of the community" and originally and more specifically: " ensuring that the jury was familiar with the accused and the events surrounding the crime" (as well stated in the brief for the US ( Smith v. US)).

But above all, courts held over and over, that questions of law, is for courts. Not jury. Not to forget, in time, the law becomes more and more complicated (due to social, demographic, international, and technological changes). It must be done by experts. For laymen, wouldn't be able to decide complicated questions of law. When you dive too deep into questions of law (along with facts let alone) you become emotionally cold and detached. More professional finally. So, one may wonder, not only capacity and competence. But, it would strip off the jury from their human touch. Human touch of one ordinary person (and laymen or ordinary person, that is the original meaning of the founders as jury in trial).


Posted by: El roam | Mar 27, 2023 3:49:45 AM

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