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.





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