America's Constitution by Akhil Reed Amar

Author:Akhil Reed Amar [Amar, Akhil Reed]
Language: eng
Format: epub
ISBN: 978-1-58836-487-6
Publisher: Random House Publishing Group
Published: 2012-02-29T05:00:00+00:00

“trial by jury”

Of the five amendments in the Bill of Rights that did not directly invoke “the people,” three explicitly referred to the closely related idea of the “jury.” The Fifth Amendment guaranteed a role for federal grand juries, the Sixth Amendment elaborated the parameters of federal criminal-trial juries, and the Seventh Amendment preserved certain entitlements to and of civil juries.

This pattern faithfully reflected the broader legal culture of post-Revolutionary America. During the 1760s and early 1770s, the British Empire had repeatedly sought to evade local jury trials via expanded uses of juryless admiralty, vice admiralty, and chancery courts and via laws authorizing trials in England for crimes committed in America. In response, the colonists had demanded an end to all such evasions. In 1765, delegates representing nine state assemblies met in an intercolonial Stamp Act Congress to declare, among other things, “that trial by jury is the inherent and invaluable right of every British subject in these colonies” and that imperial extensions of “the jurisdiction of the courts of Admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.” A decade later, in response to a fresh set of British provocations, the First Continental Congress insisted on Americans’ right “to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of [common] law”; and the Second Continental Congress reaffirmed Americans’ entitlement to “the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property.” The Declaration of Independence featured three distinct paragraphs condemning the Empire’s violations of the rights to and of local juries. Every state that penned a constitution between 1775 and 1789 featured at least one express affirmation of jury trial, typically celebrating the jury with one or more of the following words: “ancient,” “sacred,” “inviolate,” “great[],” and “inestimable.” The Northwest Ordinance also affirmed “trial by Jury” and, in a separate provision, a man’s right not to be deprived of his liberty or property in the absence of “the judgment of his peers, or the law of the land.”18

Small wonder, then, that even though the Philadelphia framers explicitly guaranteed in Article III that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed,” Anti-Federalists demanded much more—more guarantees of local criminal trials within a state, more explicit safeguards of the historic role of grand juries, and more security for civil juries. Amendments V–VII aimed to give the people what they wanted while accommodating certain practical considerations confronting the new continental government.

The Fifth Amendment required grand-jury indictments for all serious federal crimes but carved out an exception for matters of military justice within the army or navy or within the militia when called into actual federal service. (While expressly exempting the military only from the ordinary civilian system of pretrial indictments, the amendment also implicitly recognized that

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