In early American history, the right to a jury trial was seen as a critical component of our democracy. Today, by contrast, only about 1 percent of cases on average reach a jury trial. For those who would like to reverse this trend, it’s time to look creatively at state constitutions.
Most state constitutions include language preserving the jury trial right, typically declaring it to be “inviolate” — pretty expansive protection. While some state constitutions do place certain limits on the “inviolate” right (such as anchoring it to claims existing at common law at the time of the constitution’s adoption), most don’t. And if you dust off the debates around the time of the adoption of many state constitutions, it’s not difficult to find proponents of the jury right explaining how important and central it is, particularly as a check on the other branches of government. After all, the English denial of the jury right is part of what sparked the American Revolution.
Early case law surrounding the jury trial right in the states often described the right as nearly sacrosanct. So what happened? The full answer is beyond the scope of this short article, but the core of the story is that the courts did not protect the jury right from incursion by other forces. The jury, as an institution, is an oddity because it has no real institutional power. A jury’s members perform their assigned duties and then return to the community. No one lobbies on their behalf or stands up for the jury when other branches seek to whittle away its power.
Courts essentially bowed to the practicalities of rising caseloads and limited time, and they created nontextual limitations on the jury right over the years. Many would pay tribute to the jury right, then quickly add, “but it is not absolute,” before handing down decisions that would weaken it. Throughout the 20th century, arbitration gained acceptance, we witnessed the rise of the administrative state, and tort reform swept through the states — all these trends marginalized the jury. And the courts, in effect, allowed this to happen or at least acquiesced to it.
So how do we go about rehabilitating the jury right? One possible answer can be found in state constitutions. We sit in a moment in which many lawyers, judges, and academics are placing renewed emphasis on state constitutions. Lockstepping — when state courts reflexively follow federal constitutional precedent when interpreting their own constitutions — seems to be falling out of favor as state courts desire to give a full measure of protection to the rights enshrined in their constitutions.
For the textualists out there, it doesn’t take too much digging to appreciate the inconsistencies between modern practice and the language of state constitutions, early case law, and constitutional debates. A persuasive textual argument can be advanced that certain modern restrictions on the jury trial right are inconsistent with the intent and purpose of the state constitutional requirement. In other words, if we truly believe that the right is so important — underscored by nearly all the state constitutions — we should act like it.
And for legal pragmatists, we live in a world in which our institutions have fallen out of favor with the public, and the judiciary is no exception. But people generally have very positive experiences on jury duty — Alexis de Tocqueville described it as “free school” two centuries ago. When everyday citizens, and their friends and neighbors, serve on juries, they generally walk away from the experience with renewed civic engagement and a better understanding of the court system. Isn’t that something we should encourage? The experiences of jurors can reflect well on the judiciary and help promote confidence in the institution.
Others might look at the directly democratic feature of the jury enshrined by state constitutions and see reflections of modern arguments about access to justice and transparency. Our founders wanted citizens to enjoy the protections of the collective judgment of the community — that was how they thought about what we now call access to justice. And the determinations of the jury bring transparency to legal disputes, something often hidden nowadays by settlement agreements with confidentiality clauses or the privacy of arbitration.
In other words, regardless of what mode of constitutional interpretation one subscribes to, there’s a little something for everyone here. Part of the challenge is getting lawyers and judges to imagine what life might be like if more cases went to jury trials. Many fear that the system would come to a crashing halt — but it doesn’t have to be that way.
The details of various reform ideas to promote jury trials could consume multiple law review articles, and the point here is not to try to canvass them all. Rather, it is to make a provocative suggestion — lawyers and judges are smart, creative people who can devise and implement reforms to facilitate jury trials. What is often lacking is the impetus to confront the question. A renewed focus on our constitutional heritage could provide that inspiration.
Fully appreciating the how and why of our founders’ embrace of the jury trial might convince us that we should honor that legacy by tackling the absence of jury trials in earnest and advocating for reforms that will uphold our constitutional history.
Hon. Pierre H. Bergeron is a judge in Ohio’s First District Court of Appeals and teaches state constitutional law at the University of Cincinnati College of Law. The views expressed are the author’s own and not necessarily those of the Brennan Center.