Blackstone’s Curse

If I refer to “checks and balances” I bet you think of the inherent tension between the Executive, the Legislative and the Judicial branches of the federal government.  The words “checks and balances” might also bring to mind the inherent tension between the federal government and state governments.

I don’t know about you, but I had never thought of criminal, civil and grand juries as being coequal with the Executive, Legislative and Judicial branches of the federal government and I never thought that such juries were coequal to state governments. In other words, I never thought of the jury system writ large as being in tension with and a “check and balance” to the three branches of the federal government and to the state governments as well. 

Professor Suja A. Thomas in Blackstone’s Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States, SSRN-id2424881 (Last revised: May 15, 2014) (free download) makes precisely that argument. She argues that all three types of juries used to serve as “checks and balances” to all the branches of the federal government and to state government as a historical matter, but, she asserts, they no longer exercise the power that juries once commonly enjoyed:

When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies. This [article]. . . tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority.*

Dear reader, assume Professor Thomas is right as a historical matter, and that criminal, civil and grand juries were much more active and powerful in the early days of the Founding than now. Aside from nostalgia for bygone days, why should we care that juries are now less active and the power previously exercised by all types of juries has lessened and shifted? Furthermore, assuming Professor Thomas is correct as a historical matter about the powers previously exercised by juries at or about the Founding, why would we ever desire to replicate that past now?

If you have answers to these questions, I’m anxious to hear them.


*Professor Berman at his Sentencing Law and Policy blog first highlighted Professor Thomas’ article in April of this year.





34 responses

  1. It is generally remembered that a significant advance in the freedom of the press was the Peter Zenger jury’s acquittal of Zenger as an act of jury nullification. Juries are not lawyers and they have the right to acquit regardless of the law and the facts if they don’t think that the law should be applied to the facts in this case. In short, they are there to judge the law.

    Now that federal judges have only to hear “national security” from the prosecutor to deny a defendant the right to examine evidence and confront his accusers, the jury could serve as the people’s check against the corrupted courts.

    That could happen, if people begin to notice that an awful lot more people are killed by out of control cops these days than by terrorists – who if there were really such a threat would be blowing up the people piled up for their convenience in front of the TSA checkpoint, not to try to sneak through it.

    Certainly one contributor to the decline of the jury is the refusal of white supremacist juries to convict in civil rights cases for a very long time. When you abuse freedom in order to do evil, you’re likely to lose that freedom.

  2. This might not exactly be on topic, but I have always wondered about the 7th Amendment constitutional right to a jury trial in civil common law cases. It seems that SCOTUS has very little respect for that right.

    First, it has not been incorporated under the 14th Amendment. Even worse, It seems to me that this right has been summarily suppressed by the Federal Arbitration Act. Usually, when one waives one’s fundamental rights, we require voluntary, knowing, and informed waiver. The FAA allows summary waiver of this right under contracts of adhesion, leaving consumers with no meaningful choice. If the founders put the right to a civil jury in the Bill of Rights, shouldn’t we treat it with some respect?

  3. Peter, you make an interesting point when you write: “In short, [juries] are there to judge the law.” Assume for a moment that English juries and some early American juries too had the power to “judge the law,” would you support that practice today? For example, if the elements of a crime are A,B, and C, but the jury decides that the government need not prove C in order to convict, is that acceptable to you?

    All the best.


  4. John A.,

    If a waiver of the right to a civil jury trial must be accompanied by a waiver that would stand up if the signer was charged with a crime, what would be the impact on commerce? Should that matter? By the way, would you let the jury determine whether, assuming the facts are undisputed, the contract is legally one of adhesion? More to the point, would a jury have the right to define what “adhesion” means?

    All the best.


  5. Fair and impartial is one thing. Blue Ribbon GJs? My mother-in-law sat on one in Brooklyn. Leaving aside all the jokes about one’s m-i-l, let’s just say she knew chicken soup a lot better than the Constitution. But, as one of the 24, she felt she spoke for the community. Loved the prosecutors.

    Prosecutors use Grand Juries for their own ends. Sometimes its to get rid of difficult issues. Sometimes its to get charges when insufficient evidence would otherwise not exist. Many others could be discussed. When people get involved, especially one’s who are supposed to leave their knowledge, experience and reasoning powers at the door, no justice can result.

  6. It’s quite an exaggeration for the professor to say this story has never been told before. Lysander Spooner told it way back in 1852 in his Essay on Trial by Jury, which can be found on the website dedicated to Spooner maintained by Georgetown law prof Randy Barnett. Judge Jack Weinstein also told it in his great opinion in Polizzi.

  7. Certainly that kind of thing goes on now anyway, and probably more often than nullification in the direction of acquittal. The jury is, or should be as in days of yore, the judge of the law, but not the sole judge of the law. That is, the jury also should be checked by the judge. It is consistent with the foundational principle of justice that all these checks should serve the Presumption of Innocence. As far as racist juries in the past refusing to convict civil rights violators, that is indeed a problem. Some would argue that a similar dynamic was at work in the OJ trial. But the principle that it’s better that a 100 guilty go free than that 1 innocent suffer is applicable on the meta level too. The role of the jury in checking the State is that important. And a community steeped in that kind of racism already has much deeper problems.

  8. Indeed, my nostalgia for the role of juries in checking the State is itself checked by the ignoramuses who typically sit on them. Maybe juries should be made up of lawyers. After all, the best place for a criminal defense attorney is not at the kiddie table in the courtroom but on the jury. After all, there are some people who even defense attorneys, if called upon to judge rather than advocate, think should be locked up to protect the community.

  9. Juries were expected to do what everyone knew that you didn’t have the collective character to do: control yourselves. One case in point is the Sixth Circuit case involving a judge who was having sex with a party to a case he decided. Judges are naturally corrupt, and are always going to protect their own, which is why they declared (citing dubious “precedent” created by judges for the benefit of judges) that “WE JUDGES ARE YOUR KING, AND THE KING CAN DO NO WRONG!!!” He was suspended by the judicial tenure commission, and the prosecutor refused to prosecute. His license to practice hasn’t been touched. The judge was allowed to walk because he was a judge.

    A lowly cop would never get away with that.

    Do you honestly think that any sane civil jury, if asked whether judicial immunity should be absolute, would find that it should be? Do you honestly think that any sane grand jury, if asked to indict by the aggrieved litigant, would fail to do so?

    Apart from the constitutional dimensions of the question, absolute judicial immunity makes no sense whatever. If the threat of malpractice suits keeps doctors and attorneys honest, why not judges? And how can you have rights if judges refuse to enforce them?

  10. The author raised, but did not fully examine, the best example of an usurpation/elimination of the power of the jury to provide a check on the executive branch- agency actions and rulemaking. While it was just briefly raised as an issue on page 42 of the PDF (p. 1235 of the document), this is something that I see as the best point of the article. How many different issues, decisions, and impositions of authority arise from the myriad executive agencies on a broad array of topics?

    No jury has heard the arguments pertaining to the FAA’s unilateral (and likely overbroad) imposition of fines and issuance of cease and desist orders to drone hobbyists, be it for commercial or personal purposes. What jury gets to decide on a fine imposed by the EPA on an alleged mass polluter? Will a jury get to decide the issues of net neutrality currently before the FCC?

    The agency, with its rule making and enforcement powers, does more to undermine the checks and balances systems than anything else. Yet this is one area where a jury’s power of review and decision is quite low. Sure, some agency decisions and actions might eventually give someone/some entity standing to file a suit challenging some aspect of the law, but the presumptions all favor the government here. Worse, they mandate compliance until a challenger prevails.

    I hope this is at least coherent, if not a bit facile.

  11. According to a judge I’ve practiced before and a layman friend, the reason we should be concerned about the decline of the jury, whether civil or criminal, is this: they are less likely to get it wrong. This is a view that assumes and accepts a degree of imperfection.

    Also, It is my view that the decline of jury trials has eroded public respect for our judicial system: fewer people serve on juries, so fewer people can be public relations agents to the effect that our courts work pretty well and pretty fairly. Although I’ve never served on a jury and likely never will (although the Clerk of our state Court of Appeals served on the jury in a civil case I tried 15 years ago or so and was not the foreperson), everyone of my acquaintances has described it as one that restored and/or rejuvenated their faith and respect for our courts.

  12. Judge:
    Two instances of juries acting as a “check” on the government immediately come to mind. First, in instances of acquittal via jury nullification, juries are essentially saying “we are choosing to acquit irrespective of the fact that the prosecution proved the defendant’s guilt to the exclusion of a reasonable doubt.” While used quite sparingly in our history, jury nullification was all that stood between those whose lawful conviction would have been thought of by the community as immoral, e.g., those acquitted during the era of the Fugitive Slave Laws. Second, theoretically, grand juries were intended as a check on the executive branch, i.e, the prosecutor. For instance, in my home state of New York, generally someone may not be prosecuted for a felony absent an indictment by a grand jury. And yet, the existence of grand juries did not stop the former chief judge of our state’s highest court from asserting that one could “indict a ham sandwich.” This pithy phrase describes how, in realistic terms, the grand jury has morphed from a check on the executive branch to a tool of the prosecutor to use as he/she sees fit. The real question is why (and a corollary is why is it that the public doesn’t seem to care?)? My guess is that the business of the courts, both the criminal and civil justice systems, have become so shrouded in their own secrecy–intended or otherwise–such that the former pesky “checks” of the past get shunted aside as a mere hindrance to those who wish to use power more freely. Vigilance by the Bench, the Bar and the general public may be our only hope in this regard.

  13. I am a different Peter than above, but this question intrigued me greatly.

    I would say that the power/right of the jury to “judge the law” is (rightly) limited by the disparate way we treat convictions versus acquittals. The jury has an unreviewable check on the power of the executive and the legislature to exact punishment, since an acquittal by the jury is absolutely final. Conviction on the other hand is not final. If the prosecution truly presented no evidence that could possibly convince of C, then the judge should enter a JNOV to acquit, even if the jury convicts on the basis of “This is a bad guy; who cares if he didn’t have provable intent.”

    Of course you know all this better than I do. The reason that juries ought to have power to judge the law, or in my preferred view, to judge the whole of the case, is a sanity check. Sometimes the law does get wildly out of line from the values of the community, especially when the law has a wildly disproportionate impact on relatively small portions of the community.

    And hiding of the sentencing range from the jury is probably the biggest thing undermining that role today. In the era of the founding, there were relatively few crimes, and a juror would have a pretty good idea what the sentence would be. In things like the Francois Holloway case you talk about today, I think the jury knowing that they are sending the man to life in prison would seriously change the calculus there. As it should; the law is not meant to be secret. There is no reason that jurors couldn’t know federal sentencing law before being selected except that it’s byzantine and nearly nobody has any idea how it really works.

    The point of having 12 average citizens in the room, as opposed to an expert panel of jurors or a panel of judges (if your concern was just safety in numbers), is that the 12 people are outside the system. They ought to base their decisions on the whole of the case, without real facts about the laws they’re enforcing hidden from them.

  14. That is the advantage of the jury trial: the judge is a check on the jury, and the jury is a check on the judge. The jury will follow the judge’s reading of the law unless they suspect partiality. In the case of the judge who had an affair with a litigant, a jury would have concluded that there was no judicial immunity, and they would have been right.

    If you have to argue with Thomas Jefferson, you should probably lose.

    We all know that in questions involving judicial power, judges can’t be fair and unbiased.

  15. Yes. While juries may not be as learned in the law, they are less corrupt than judges. If the terms of a contract are outrageously unfair, they will do what is right, as opposed to the judge who will do whatever his owners tell him.

  16. If they worked pretty well and pretty fairly, we might have a higher opinion of them. But when you have two cases decided on the very same day, and the outcome is a function of the judges’ Party preference on Obamacare, you lose confidence in judges as honest arbiters of the law. And when judges decide, quite on their own, that one of their own cannot be exposed to personal liability no matter how plainly he violated the law and standards of common decency, it is high time to break out the pitchforks and nooses.

    As Judge Hughes wrote, “Honesty comes hard to the government.” It appears to come even harder to federal judges. And you wonder why we have lost our faith? Only a cultist would continue to believe in spite of the evidence.

  17. Perhaps.

    But Spooner was a nut even at the time he wrote his essay. For example, he totally ignores Marbury v. Madison when he speaks of illegal judges and their failure to correct the sovereign. His loopy dependence upon the Magna Carta is little more than asserting that really old ways are good and any deviation therefrom is bad. There is absolutely no reason whatever to conclude that the right to trial by jury set out in the American constitution that followed more than five hundred years later was somehow defined by that feudal document, the Magna Carta. For those who would like to read the essay, you can find it at

    All the best.


  18. Anon.,

    You make a very important point when you write:

    “Also, It is my view that the decline of jury trials has eroded public respect for our judicial system: fewer people serve on juries, so fewer people can be public relations agents to the effect that our courts work pretty well and pretty fairly. Although I’ve never served on a jury and likely never will (although the Clerk of our state Court of Appeals served on the jury in a civil case I tried 15 years ago or so and was not the foreperson), everyone of my acquaintances has described it as one that restored and/or rejuvenated their faith and respect for our courts.”

    As I have said before, since 1987 I have interviewed every jury that deliberated in my court. Almost without exception, I am told that jury service was informative and renewed their faith in the system including the judges. So, as juries decline, a credible argument can be made that respect for at least a portion of the judiciary–the “trial” judge–will decline as well. Thank you for your insight.

    All the best.


  19. He stated it too broadly, but Bouldergeist has this point. generally, the federal courts are deferential to the national security state and the corporations, with a few exceptions such as Kathleen Roberts – in rather sharp contrast to how they were even in Nixon’s days. It is very much as it was in Chile in Pinochet’s days, where even habeas corpus remained on the books in theory, but such writs were denied routinely on the government’s bare denial that they were holding whomever they had disappeared. Here, the prosecutor need only utter the words “national security,” and the judge will deny the defendant any meaningful opportunity to have access to evidence to defend himself.

    At the same time, as was true even in the Soviet Union, you might well get a fair trial if the government took no political interest in your case.

  20. Spooner was a “loopy” “nut”? I’m glad you linked to the essay, as I think it can speak for itself, though I wonder why you linked to it on “bare foot’s world” rather than on the site of Spooner enthusiast / scholar and Georgetown law prof Randy Barnett. Three justices of the SCOTUS have cited Spooner’s The Unconstiutionality of Slavery in three separate opinions on the 2nd Amendment. I suspect they became aware of this great work (the 1st chapter, titled “What is Law?”, is particularly good) because in it Spooner made an early and strong case for textualism. But in contrast to those 3 justices, who get from their textualism judicial deference to the legislature, along with textualism Spooner propounded its critical corollary, i.e., a canon of statutory interpretation which Barnett calls the Presumption of Liberty but which I prefer to regard as a subset of the immemorial Presumption of Innocence, and which is a close cousin to the Rule of Lenity.

    Spooner taught in The Unconstitutionality of Slavery that there is, and can be, correctly speaking, no law but natural law, and that whatever authority, if any, other laws may have is derived ultimately only from it. This is self-evident, and is shown most starkly by, e.g., the Fugitive Slave Acts and Dred Scott v. Sanford. I seriously doubt, then, given this attitude, that Spooner had the sort of sacred awe towards Magna Carta that many Americans have towards the Constitution. But custom does play a role in determining what’s right and wrong. It would be not only illegal but immoral, for example, to insist on driving on the left side of the road in America.

    The chapter on The Authority of Magna Carta in Spooner’s essay that you linked to is not “loopy.” Blackstone was an important figure to the Founders, an important source for their understanding of the common law, including trial by jury, at the time of the ratification of the Constitution, was he not? He’s cited even today by the SCOTUS, right? Towards the end of Spooner’s chapter on The Authority of Magna Carta he quotes Blackstone as saying that trial by jury is secured to the Englishman by the Great Charter.

    Spooner is clearly concerned in his Essay with the essence and purpose of the trial by jury rather than the ancient details of its ancient use. Nevertheless, he clearly believes, rightly in my opinion, that the old ways came far closer to the essence and purpose of the trial by jury than the ways by which it had been degraded in his time, and I agree with him on that score. For example, as shocking as it may sound, I agree with him that juries rather than judges should determine the admissibility of evidence. And if that’s the case, his other shocking notion, that, in accordance with Magna Carta, judges shouldn’t preside over criminal cases, is less shocking. The jurors can elect a foreman to preside.

    A couple points where I tentatively disagree with the Trial by Jury as presented by Spooner and as it presumably existed at the time of Magna Carta: First, I don’t think, even in criminal cases, that juries should necessarily have to be unanimous. It seems to me that 11 out of 12 should be sufficient to render a verdict. One lone holdout may represent only an unreasonable doubt, whereas two is a sign of reason. By this could be avoided the odious hung jury and the mockery of the Double Jeopardy Clause that follows. Two or more jurors voting for acquittal though means an acquittal, and that’s the end of the case. Second, I’m not so sure jurors really should be, or even that they were at the time of Magna Carta, really just chosen totally at random and by lot from the country. For one, I don’t think the government has a right to conscript people in this fashion, but that’s the least of my concerns.

    My point is not to invent my own legal system, but to say the trial by jury of Magna Carta as presented by Spooner was far closer to the essence and purpose of the trial by jury and far better than what we have, and that neither I nor Spooner worship Magna Carta in the manner that many Americans of the present day worship the Constitution.

  21. My brother, not a lawyer, once was despairing over some decision of the jury system and I asked him if he were on trial would he prefer that the decision be made by exclusively government employees? Upon reflection he agreed that a jury would be preferable. And even though I am a former law clerk to Federal Judge, of whom I hold the highest opinion, I agree.

  22. Law and justice is too important, and on the other hand in a better world would be so secondary to the primary business of life, to be done for money. And I say this as a lawyer who for the time being earns his living by the sword. Granted, relying on volunteers (or, getting more deeply into my ideal society, people who satisfy what is now their residential property tax obligation by government service) for jurors would have its own dangers, and as a defense attorney during jury selection I am prone to exercise a peremptory strike on a prospective juror who seems too eager to serve. My point is that I’d like to see the functions of the jury and judge merged, and responsibility thereby made transparent. And not just any yokel is qualified to be a judge.

    I surmise that Judge Kopf’s remarks above about the loopiness of Spooner have a lot to do with the remoteness (and therefore impracticality) of his prescriptions from anything existing now. Fair enough, though I think such idealism has its uses, as providing a framework within which to judge what is assumed and taken for granted. But two changes are quite practical for the here and now and have been advocated by respected jurists, though they would have far reaching effects: Juries should be instructed that they have not only the power but the right to acquit for the sake of justice despite the “law” propounded to them by the judge; and juries should be informed of the penal consequences attaching to a conviction. Better yet, juries should themselves select the sentence from within the range set by statute.

  23. John,

    I agree with you that juries should know the potential consequences of their action regarding the range of sentences the defendant will face upon conviction. I also have no difficulty with jury sentencing given the mess the Supreme Court has made with the Sentencing Guidelines. However, I strongly disagree that juries should be told that they have the right acquit in the interests of justice. For one thing, the interests of justice standard is just to vague and, additionally, that standard would lead to widely disparate treatment of defendants.

    All the best.


  24. RNJ,

    As I noted to another commentator, I have no problem with jury sentencing particularly given the mess the Supreme Court has made of the Sentencing Guidelines. All the best.


  25. But (and not to extend the exchange further than is welcome, as I appreciate your responses, particularly since I’ve for the most part taken on the persona of an ankle-biter in the comments here up to now) the only reason to inform the jury of the potential consequences of their action in convicting is to invite or give them moral permission to, not so much nullify, but determine the law. (If I recall correctly, the Second Circuit pointed this out in reversing Judge Weinstein in the Polizzi case.) It’s then a small and logical step to expressly inform the jury of their right to nullify, or rather determine, the law. And indeed, this right is of the very essence of the jury as the “palladium of liberty,” as the people’s check on the State. Furthermore, the beauty of this palladium of liberty is that it would not lead to widely disparate treatment of defendants. If the State can not strike for cause, for example, a potential juror who doesn’t believe people should go to prison for pot, it is likely that the State would be able to convict very few people of this “crime,” and would probably stop trying. This then would also have a prophylactic and salutary effect on legislation. The State would only be able to enact and enforce criminal laws that essentially the whole country agreed with. And this would be as it should be.

  26. My brief comment left out my real concern. I agree with you on sentencing but that was not my chief concern. While I did not mention the Grand Jury I have long believed that a rubber stamp indictment process is a real threat to our liberty. And I ask you, does the Federal Judiciary properly inform the Grand Jury members of their need to be skeptical and discerning? I really never was involved with Grand Jury proceedings so I don’t know what, how and who educates the members on their powers and duties.
    P.S. Your blog is a very valuable asset. Thanks.
    P.P.S. Notwithstanding W. Churchill, at the age of 73, I don’t know if I am now a liberal or a conservative. If President Lincoln was a Liberal then I am a Liberal. But if he was a Conservative then I am a Conservative.

  27. RNJ,

    Fascinating question. When, as Chief Judge, I had to pick my first grand jury, I had not the slightest idea how to do it. I did a little research and prepared as script. I normally hate scripts, but I was really at sea. So, I gave fairly long introduction about the reasons for, and functions of, the grand jury. I shoveled it one pretty thick, but I don’t remember whether I explicitly told them to be skeptical. I think I came pretty close, however.

    I, too, am whatever Mr. Lincoln was. Indeed, I have a large bust of Mr. Lincoln in my chambers and my prized possession is an old lithograph of the great man my grandmother gave me. Trying cases in the backwoods, even for railroads, gave our President a real feel for the real world of real people.

    All the best.


  28. John,

    I don’t think that the only reason to tell a jury about the possible penalties is to allow the jury to determine the law. We tell them about the meaning of “reasonable doubt” and telling the jury the scope of the punishment gives meaning to the abstraction we call “reasonable doubt.” Perhaps you think I am skinning things too thinly, but I truly believe there is an important difference.

    All the best.


  29. No, that makes a lot of sense. It brings home to the jurors the seriousness of what they’re doing. What’s a reasonable doubt? If the consequences are slight, a lot of doubt might be reasonable. If the consequences are very serious, much less doubt is reasonable. That’s true in our daily lives and it should be true for jurors. And informing the jurors of this would be a very significant step in the right direction.

  30. I feel a little silly bringing up family courts here given the high level of the discussion, but (barring Texas, which allows them) I think juries there could possibly bring some sanity back to a bunch of hopelessly broken state systems. Many states have laws that are vague to the point of inanity, essentially stating that all decisions must be made “in the best interest of the child” and leaving it at that. In small town low level JDR courts staffed by overworked and underqualified judges cases are presented by the same few lawyers over and over again so that the court and its officers are far, far too friendly with one another and no one has an incentive to judge the actual facts of the cases. It seems to me that small juries could bring special parental knowledge and attention to circumstances into courtrooms where they now seem to have no place. Also juries in such cases would at least have a chance of understanding the contemporary conditions that young parents face (the judges are, in my experience, not ever young parents, and some things are really only knowable by experience). I know this is a limited case, and it seems not to be a popular viewpoint (as I said, it’s 49 to 1 against statewise), but when there are life/death human facts to be judged and absolutely no guidance from the law, I think G.K. Chesterton’s defense of the jury is spot on. (See esp. the last paragraph here if you don’t know it: )

  31. Jo,

    You have no reason to feel silly. Long ago, I practiced before judges who weren’t even lawyers. Many times I would much rather have had a jury, imbued with their common sense, decide my case. All the best.


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