But in one of those unanimous decisions -- Berghuis v. Smith -- Clarence Thomas wrote a concurring opinion that has startled a few people (including me). The opinion is very brief -- barely two pages -- but he basically says he'd be willing to revisit the Court's precedent that juries should have a fair cross-section of society. Now, the reasoning relates partially to my problem with originalism and its 18th-century fetishism. Here's what Thomas writes:
The text of the Sixth Amendment guarantees the right to a trial by “an impartial jury.” Historically, juries did not include a sampling of persons from all levels of society or even from both sexes. See, e.g. , Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 877 (1994) (In 1791, “[e]very state limited jury service to men; every state except Vermont restricted jury service to property owners or taxpayers; three states permitted only whites to serve; and one state, Maryland, disqualified atheists”); Taylor v. Louisiana , 419 U. S. 522 , n. 13 (1975) (“In this country women were disqualified by state law to sit as jurors until the end of the 19th century”). The Court has nonetheless concluded that the Sixth Amendment guarantees a defendant the right to a jury that represents “a fair cross section” of the community. Ante , at 1 (citing Taylor , supra ).In my view, that conclusion rests less on the Sixth Amendment than on an “amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment ,” Duren v. Missouri , 439 U. S. 357, 372 (1979) (Rehnquist, J., dissenting), and seems difficult to square with the Sixth Amendment ’s text and history. Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” requirement. But neither party asks us to do so here, and the only question before us is whether the state court’s disposition was contrary to, or an unreasonable application of, our precedents. See ante , at 23, 810; 28 U. S. C. §2254(d). I concur in the Court’s answer to that question.
I admire the fidelity to the text, sure, but this seems a bit extreme, no? I have two problems: first, is Thomas suggesting that it would be constitutional for a statute that barred women or minorities from serving on juries, since that was common practice when the Founders roamed the Earth? And secondly, knowing the problems and history of jury selection, and the insidious role race often played, is it wrong to think that a "fair cross section" of society will most likely yield an "impartial jury," as the Sixth Amendment demands?
Can anyone explain this to me?
I might be misreading it, but I gather he's referring to the idea that juries MUST contain a cross section of the population (ie quota-type requirements) with the implicit notion that only a quota type system can be impartial and fair. He's suggesting that nothing in the 6th Amendment suggests that, and that prior precedents have pretended that it does, while actually basing decisions on the Equal Protection clause instead.
ReplyDeleteThomas is very much about proper process regardless of if the end result was positive policy, so the idea that he'd wish to revisit something that he believes has been legally twisted doesn't seem surprising to me.
It certainly doesn't mean that he wishes for segregation of juries (sort of like how one can be pro-Abortion and still think that Roe v. Wade should be struck down b/c it's a legal clusterf*ck.
Btw...on your last questions. Couldn't your answer be: Yes, it's a good idea to have juries be a cross section of the population, BUT nothing in the Constitution requires it currently. THEREFORE the proper solution is to amend the constitution so that it does require a cross-section, rather than just pretending that the Constitution already said it?
ReplyDeleteI was thinking about something recently that may relate. It seems to me that the spirit of the Declaration of Independence and the Constitution prior to the 13/14th/15th amendments presupposed that slavery/inequality weren't permissible because all men are created equal and free. Obviously the country didn't act on that viewpoint however, to our shame.
The modern liberal viewpoint it would seem to me would, were it present back in the 1860s, suggest that the mechanism to resolve those issues was simply to have the Supreme Court assert that actually, the Constitution always said that slavery/inequality were always banned as evidenced in given language, but we were not acting on correctly. New precedent established.
The originalist viewpoint (and the viewpoint that was subscribed to by the people back then however) was that rather than decide that the Constitution now meant X, they would instead pass amendments that established new governing rules.
The originalist viewpoint seems to me to understand that the Constitution is not a priori perfect and requires our maintenance. The liberal viewpoint seems to want to pretend that the Constitution is already perfect, but our reading of it isn't. So we fix our understanding; not the document itself.
Very interesting -- it's not usual you find commentaries that pin liberals as the Constitution-lovers. (I think most on your side argue that the leftist judge views the Constitution as deeply imperfect but prefers to change it with precedent and interpretation rather than the difficult process of the amendment.)
ReplyDeleteJed Rubenfeld, the author of "Freedom and Time," made an equally perceptive point about a paradox created by originalism. On the one hand, its followers create an almost cultish and reverential view of the Founding generation (what did they think, and how they did they view the words they wrote in the Constitution?). At the same time, however, their insistence that the only way to change the constitution -- through the amendment process -- would mean a constant revision of the Constitution. (If you don't like X-part of the text, amend it!) You have both fidelity to the text, as well as fidelity to constant revision.
Anyway, to your first question: I don't think it's particular damaging to American democracy for judges to ask, "What does the Constitution mean when it says 'impartial jury'?" and then offer reasonable interpretations. (And I don't see what's wrong with bringing in the due process clause of the 14th Amendment into this quandary either, given that different parts of the Constitution regularly overlap each other.)
I have a huge problem with deciding this question by saying: a) When the Founders wrote the text, juries excluded blacks, women, people who didn't own property, so b) the Constitution implicitly allows blacks, women, people who don't own properties to be excluded.
I just think it's silly to privilege the flaws and traditions of one generation over the rest of ours when it comes to understanding what these words mean. It doesn't seem all that radical (or undemocratic) to suggest judges can read "impartial jury" according to modern definitions. But that's the nub of the debate, I suppose.
I have another question on the originalist method -- during the gun rights cases (Heller and McDonald), the majority opinions both noted that authorities regularly disarmed blacks in an effort to exert control. They mention these episodes to speak to the value of the Second Amendment as a powerful check on government tyranny.
ReplyDeleteBut my question is this: if blacks were forcibly disarmed during the Founding era (as I'm sure they were), then doesn't the Second Amendment -- in the originalist view -- not necessarily apply to blacks?
One more thing: I'm not sure I agree when Thomas writes that the interpretation of the Sixth Amendment should be guided completely and solely by the text of the Sixth Amendment, and not, say, the due process clause or equal protection clause of the 14th Amendment. If a certain segment of the population was denied placement on juries, and another not (i.e., blacks denied, whites granted), then it seems equal protection has been violated.
It's not as if each clause in the Constitution rests on an island, right?
Finally: it seems rather narrow-minded to think about these profound questions -- who should compose our juries -- solely by looking at how the 19th-century generation answered it. There are larger principles -- the ones you mention, Esquore, when you say all men are created equal -- that also deserve consideration. And so, we ask: can a truly democratic society regularly exclude certain people from juries? Doesn't that confound our democratic sensibilities, even if it is not articulated specifically in the U.S. Constitution?
Are you really that scared of a judge who would follow this line of reasoning?
Re: the idea that blacks were forcibly disarmed...
ReplyDeleteI don't think they were in the north in the early republic (rights of Blacks were actually better protected in the early republic than as history moved forward towards the civil war.)