Today, on Constitution Day, we should reflect on the central place juries fit within our constitutional system. The right to a trial by criminal jury is the only right to make a repeat appearance in the text of the Constitution (Article III) and the Bill of Rights (Sixth Amendment). Civil juries are protected by the Seventh Amendment. Grand juries guaranteed by the Fifth Amendment. And, of course, at the time of the Founding, the First Amendment’s protection against prior restraints of speech and the Fourth Amendment’s protection against unreasonable searches and seizures were protected by civil jury actions. Thus, half the Bill of Rights reflects the central role juries were to play in our constitutional order.
Yet, this constitutional linkage between juries and the Constitution has been lost for many citizens. When jurors receive that summons in the mail, they believe the court commanded them to attend, not the Constitution. Such a reality inverts role that juries were expected to play. Instead of holding judges, governments, and other powers accountable, juries are now seen as an arm of the court. Citizens have lost the sense that jury duty is constitution duty, and that “we the people” are responsible for our government.
In jurisdictions as diverse as Washington D.C. and West Texas, 80% of summoned jurors do not show up when summoned. Four out of every five people are excused or fail to respond to the summons. This is not simply a failure of courts, but a failure of citizens to embrace the rights and responsibilities of citizenship. Such a crisis level of apathy requires immediate action. Only those committed to the cause of jury service can save the jury for future generations. Lawyers, judges, and good citizens must begin the process of reclaiming juries and the Constitution.
While there are many positive steps those committed to saving the jury trial can take, including improving the juror experience, stream-lining jury trials, and easing the financial burden on jurors, I advocate for a more basic first step – personally reclaiming the constitutional identity of being a juror.
What do I mean by “constitutional identity”? Just as we consider “being a voter” as part of our identity as Americans, before, during, and after the actual act of voting, so we should consider “being a juror” as part of that identity. Jury service should be seen as an on-going status not a task to be completed. Being a juror does not mean simply showing up on irregular occasion to the local courthouse. It means identifying as a juror before and after the actual summons. This identity was embraced by the Founders who linked political citizenship to jury service. This identity was advocated for by women’s rights advocates who fought for Suffrage and the Nineteenth Amendment. This identity was demanded by civil rights advocates seeking equal treatment in courts in the South during the Civil Rights Movement. In each case, full citizenship meant sharing the political and civil rights of voting and jury service. To be clear, these historic, generations-long fights were not simply to get the opportunity for the occasional jury summons, but to claim a full constitutional identity that jury service was part of being an American citizen.
Being a juror must be seen as part of a constitutional identity. But, how do we get citizens to see this link, and learn about the foundational role of juries in society?
For the past year since writing my book, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press), I have been advocating a very simple approach to educating citizens about juries. It involves three easy steps I ask every lawyer, judge, and citizen to take.
First, educate yourself about the constitutional significance of the jury. ABOTA’s Save Our Juries website provides a wealth of material to do so, but if you are reading this you probably know that fact. Other books, videos, and web sources exist that can explain why jury duty is constitution duty. The history of jury equality remains a fascinating, if less known, chapter in American history. We forget that people fought, protested, and risked their liberty for the right to serve. By learning about this history we honor those who sacrificed for it.
Second, educate a jury of your friends about why jury service matters. Pick twelve people from your family, colleagues, or friends and explain in simple terms why they should learn about the jury. I regularly ask people (including lawyers, law professors, and judges) what they teach their children about the importance of the jury? And, the answers are usually underwhelming. As a society, we do a terrible job explaining the role of the jury to citizens. Young high school graduates become eligible to serve on a jury with almost no education, exposure, or explanation of why this role is important. Recently naturalized citizens are given no more than a cursory explanation. Most citizens do more preparation to buy a car than to be in a position to decide another person’s liberty or future. Then, after failing to explain the jury’s importance, we wonder why citizens do not take the responsibility seriously. So, on Constitution Day find a jury of people you care about and teach them why jury duty matters.
Finally, share stories of jury duty. The Juror Voices Project on Twitter (#JurorVoices) exists to share positive stories about jury service. Jury duty is generally a dreaded activity, not a time for civic enthusiasm, but it doesn’t have to be that way. Most jurors have positive experiences on jury duty. We need to collect and share those voices. It’s a tweet away – share a link, a story, a thought, and spread the word.
For the past year, I have been challenging all those who claim “they would die to protect the Constitution” to take the more modest step to live the Constitution. Show up for jury service. Vote. Teach your children why juries matter. Educate yourself about the link between juries and the Constitution. Today, and every day, proclaim that jury duty is constitution duty.
Professor Andrew Guthrie Ferguson teaches at the UDC David A. Clarke School of Law. He is the author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action