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Mandatory Jury Service and the Thirteenth Amendment:

Critics of my argument that the Thirteenth Amendment is a comprehensive ban on forced labor can legitimately ask about the implications of my ideas for mandatory jury service. After all, mandatory jury service is pretty obviously a form of forced labor, yet almost everyone seems to believe that it doesn't violate the Thirteenth Amendment's ban on "involuntary servitude."

I am tempted to say that mandatory jury service is in fact banned by the Thirteenth Amendment, regardless of longstanding tradition. Forcing people to work for the government for weeks or months at a time is clearly "involuntary servitude" and nothing in the text of the Thirteenth Amendment exempts this form of forced labor from invalidation as unconstitutional (in the way that there is an explicit exemption for the use of forced labor as punishment for crimes). Longstanding tradition and judicial precedent is not dispositive here, anymore than was the longstanding tradition and precedent that anti-blasphemy laws were permissible despite the plain text of the First Amendment.

However, there is an important difference between mandatory jury service and all other types of forced labor. Mandatory jury service is necessary to secure another individual right guaranteed by the Constitution: criminal and civil defendant's rights to a trial by jury under the Sixth and Seventh Amendments. One could argue that the right of trial by jury does not necessarily require trial by a jury of forcibly conscripted citizens. In theory, the jury could be comprised of volunteers or paid professionals. However, as far as I can tell (and I welcome correction from those more knowledgeable about this issue) in 18th and 19th century usage and even today, the word "jury" was and is generally understood to mean a group of forcibly conscripted citizens. Coercion was and is (wrongly, in my view) believed to be necessary to ensure that the jury would be a representative sample of the citizenry. Thus, unlike other forms of forced labor, mandatory jury service is necessary to secure a constitutional right.

As a general matter, constitutional amendments should not interpreted to obliterate preexisting constitutional rights unless the intent to do so is specifically stated in the text. For example, under the Sixteenth Amendment Congress was given an unlimited power to "lay and collect taxes on incomes." That does not mean, however, that Congress has the power to impose discriminatory taxes that violate the preexisting First Amendment by targeting people who engage in speech critical of the government. For the same reason, the Thirteenth Amendment cannot be interpreted in a way that negates the preexisting constitutional right to trial by jury under the Sixth and Seventh Amendments. Not unless the text (or at the very least the intent of the Framers and ratifiers) clearly indicates such negation.

I'm not at all happy about this conclusion. As a matter of policy, I doubt that trial by jury is superior to bench trials, especially in cases with complex evidence that many jurors lack the competence to assess. Even if trial by jury is desirable, volunteer juries are probably just as good as ones manned by forced laborers. As a matter of morality, I believe that this form of forced labor is no less despicable than other types of mandatory "public service."

Nonetheless, as a legal matter, this is one of those painful instances where the Constitution not only permits what I believe to be a deeply unjust policy but actually requires it.

Guest1234:
So in a time of war, since the entire country could be taken over and therefore we would lose all of our constitutional rights, is mandatory national service constitutional?

You also assume, without citing to any evidence, that without mandatory jury service, there would be no jurys because not enough people would volunteer.
9.25.2007 11:34am
Roach (mail) (www):
As "original meaning" textualists, shouldn't the contemporary understanding of "servitude" as opposed to legal obliged duty be considered here. I mean, no one has to register to vote, which was the traditional sine qua non of being on jury duty.

I think this idea that we strip the words of all historical context and the have them run rough-shod over things that none of the authors of this amendment would have considered affected is kind of silly and "rationalistic" in the Oakeshottian sense, whom I think you would benefit by reading. As it stands, pretty soon I expect you to say that the Constitution mandates gay marriage or women in combat, which are both ridiculous notions.
9.25.2007 11:35am
Truth Seeker:
The results of the OJ trial and the fact that jury service is so hard on the self-employed, make me wonder if there is a better system. What do other countries do?
9.25.2007 11:37am
Randy R. (mail):
Jury duty wouldn't be so painful if judges took control of their trials so that a one week trial doesn't stretch into months.

Actually, if you can't present your case, matter how complicated, within a few days, something's wrong.
9.25.2007 11:38am
Ilya Somin:
So in a time of war, since the entire country could be taken over and therefore we would lose all of our constitutional rights, is mandatory national service constitutional?

It would indeed be unconstitutional. Just as it would be unconstitutional to censor anti-government speech even in a situation where the alternative is a takeover by evil totalitarian forces. In both cases, however, unconstitutional action might be justified on moral grounds as a lesser evil than the available alternative.

You also assume, without citing to any evidence, that without mandatory jury service, there would be no jurys because not enough people would volunteer.


I don't assume that at all. In fact, I believe taht the opposite might be true.
9.25.2007 11:42am
Ilya Somin:
I think this idea that we strip the words of all historical context and the have them run rough-shod over things that none of the authors of this amendment would have considered affected is kind of silly and "rationalistic" in the Oakeshottian sense, whom I think you would benefit by reading.

Thanks, but I have read Oakeshott. I just happen to disagree with many of his views.

Nor does my argument strip the words of "all historical context." To the contrary, as I explained in my last post, it situates the term "involuntary servitude" in the historical context of the free labor ideology underpinning the Thirteenth Amendment. It also situates it within the ordinary language meaning of "involuntary servitude" in both contemporary and 19th century speech.
9.25.2007 11:45am
Ilya Somin:
As "original meaning" textualists, shouldn't the contemporary understanding of "servitude" as opposed to legal obliged duty be considered here.

Making forced labor a legal duty is not enough to get around the Thirteenth Amendment's ban on involuntary servitude and was not so considered in the 19th century. If it was, state governments could get around it simply by requiring people to perform whatever labor the government and its supporters wanted. The peonage laws, for example, would have had to be upheld rather than struck down, since they were duties imposed by law.
9.25.2007 11:48am
Horatio (mail):
All involuntary servitude is illegal, except some servitude is less illegal than others

Forgive me Mr. Blair
9.25.2007 11:49am
jim:

As a general matter, constitutional amendments should not interpreted to obliterate preexisting constitutional rights unless the intent to do so is specifically stated in the text.


What, if I may ask, is the rationale for applying this specifically to rights on one hand, and not to deep constitutional structures on the other hand? (Okay, obvious the normative rationale is that one is more cautious with rights, but is there an interpretive rationale?)

I would additionally note that there is some evidence that the jury trial was not originally understood as a right of the accused, but as a right of the People, as represented through a jury, to dispense justice.

Juries were also seen as guardians of rights that judges either couldn't, wouldn't or shouldn't enforce. Justice Chase refused to review the constitionality of the sedition acts, but it was the jury that the defense lawyers really wanted to have review it.
9.25.2007 11:52am
John (mail):
We have a volunteer army; why not pay enough to attract jurors voluntarily? The "peer" test could be met by further screening, if necessary.
9.25.2007 11:56am
Rich B. (mail):
Of course, the primary use of the 13th Amendment among those with a more liberal than libertarian bent is in support of the decision in Roe v. Wade -- that it is involuntary servitude to be forced to work as an "incubator" against your will. Even assuming that the fetus/zygote/embryo has full rights of a human, the pregnant woman cannot be forced to work to raise it.

If a three-day jury trial is a "close call," then abortion restrictions are no less legal than denying me the right to quit my job after the first day, despite my agreement to work for you for nine months.
9.25.2007 11:56am
lpdbw:
Not a lawyer, but I was a (conscript) juror. It's safe to say that all-volunteer juries in Madison County, Illinois, would always find in favor of individual or class-action plaintiffs instead of corporate defendents, regardless of the merits. 100%. As it is, 10 of the other jurors in my case just waited me out. I caved in after 3 days of deliberation, as I had a life to get back to. Even though, as it turns out, they didn't believe a word of the plaintiff's story, they could not abide siding with a railroad corporation.

The good news is they awarded the schmuck about 2% of what he was asking. Not even enough to pay his shyster.
9.25.2007 12:00pm
PLR:
As luck would have it, I have jury duty this coming Monday, for the first time ever (I'm 48 years old).

I'll try not to go into it with a big chip on my shoulder.
9.25.2007 12:00pm
martinned (mail) (www):
The results of the OJ trial and the fact that jury service is so hard on the self-employed, make me wonder if there is a better system. What do other countries do?

No country that I know of has juries to the extent that the US do. In the UK, juries are limited to criminal cases and defamation trials, if I'm not mistaken. In France, people are randomly selected to serve on a (criminal) assises court for quite a long period, although I forget how long. Wiki

In my country, the Netherlands, we (fortunately) have no juries of any kind, because I agree with Somin's suggestion that bench trials are probably more reliabe.


Actually, if you can't present your case, matter how complicated, within a few days, something's wrong.

Really? What about, say, the Microsoft antitrust case, where even the rulings were gigantic. (Findings of fact in the District Court: 300 pages, Findings of law: 300 pages, Final ruling: 100 pages, European Commission Decision: 400 pages, Court of First Instance Ruling: 200 pages.)

Such cases are unavoidably incredibly complex, which is why, if I'm not mistaken, Microsoft agreed to a bench trial in the US.
9.25.2007 12:00pm
mariner (mail):
Taking this line of reason to its logical conclusion, any tax on wages is unconstitutional.

Hmmmm ...
9.25.2007 12:02pm
Ilya Somin:
no one has to register to vote, which was the traditional sine qua non of being on jury duty.

Many states base their jury selection roles on residency, not on registration to vote.
9.25.2007 12:03pm
AF:
Professor Somin:

I find your arguments about national service and the Thirteenth Amendment very interesting, but there is a certain down-the-rabbit hole quality to them, as they appear to be quite radical and novel, yet you treat them as if they are mainstream (even predicting that the Supreme Court would accept them).

To convince me that this is true, you need more than textual and philosophical arguments. You need history and/or precedent. Did the framers of the Thirteenth Amendment discuss whether it would prohibit a national draft or national service? Has any court addressed the question since 1918? What about popular debates surrounding the various military drafts of the 20th Century? In short, has anybody else agreed with you?

If so, it would enhance your argument to show this; if not, it would enhance your credibility to acknowledge it.
9.25.2007 12:04pm
martinned (mail) (www):
L.S.,

As for the 13th amendment, I have some suspicion that, while jury duty and national service are certainly involuntary, they may not be appropriately called "servitude", since the reduction in liberty is limited to part of the day, and is owed to the (democratically) legitimate state, as opposed to a private citizen.

Merriam-Webster: "a condition in which one lacks liberty especially to determine one's course of action or way of life."

(No reason to cite the definition of property law servitudes...)
9.25.2007 12:04pm
steve lubet (mail):
The average length of jury trials is about 3-4 days; the Simpson case was an extreme outlier that should not be used as a basis for determining public policy.

What possible basis is there for claiming that bench trials are more accurate than jury trials? Most empircal evidence suggests the opposite (the "wisdom of crowds") but a definitive answer is impossible.

It is odd, however, to see a libertarian prefer decision-by-government-bureaucrat rather than by ordinary people.
9.25.2007 12:09pm
PatHMV (mail) (www):
I've got to say that you are 100% wrong on your belief that judge trials would be better than jury trials, Ilya. When I was a prosecutor, and I saw plenty of both bad juries and bad judges. It's VERY easy for a local district judge to be swayed in his ruling by favoritism, ideological output, or plain old politics. I was grateful when our state passed a law allowing the prosecution, as well as the defense, to insist on a jury trial.

As other commenters have noted, with volunteer or "professional" jurors (there's a truly scary thought to me), you would almost certainly introduce a strong bias into the process. Remember the old joke "do you really want to be judged by a jury of 12 people too stupid to get out of jury duty?" In fact, it's much harder today than it used to be to get out of jury duty, and that's a good thing. The working class and the well off always have good reasons not to have time to serve on a jury. I've gotten plenty of calls from friends and co-workers seeking advice on how to get out of jury service. Very few would volunteer to serve out of civic obligation.

As a more general rule, I have to say your point illustrates one of my gripes about libertarians. Like any ideologue, they tend to value one guiding principle, one value strongly above all others. While you are a fine enough scholar to acknowledge that the Constitution clearly allows mandatory jury service, you would change that based on your libertarian opposition to forced labor. I think it's more important to at times recognize that there are many compelling needs and values shared by the diverse people who inhabit this country, and that in some circumstances one value (general opposition to forced labor) might be overcome by another value (need for a mostly random cross-section of the community to sit in judgment).
9.25.2007 12:11pm
Allan (mail):
I think there is a interesting theme on this board, with this post and the last post providing a juxtoposition.

On the one hand, one person argue that the community should not impose obligations on the members of the community, i.e, jury duty and conscription, because it is involuntary servitude.

On the other hand, another person argues that personally owned assets are superior to community owned assets because an individual has an economic incentive to provide upkeep and to save his assets, but not community assets.

There is a common theme to both arguments. That is, to ensure to the enduring prosperity of the community, one must provide economic incentives to individuals to provide services that benefit the community as a whole. So, rather than communilize (is that a word?) everything, we should incentivize everything. And the incentives should be positive (economic benefits), not negative (punitive).
9.25.2007 12:14pm
Ilya Somin:
I find your arguments about national service and the Thirteenth Amendment very interesting, but there is a certain down-the-rabbit hole quality to them, as they appear to be quite radical and novel, yet you treat them as if they are mainstream (even predicting that the Supreme Court would accept them).

Actually, they are not novel. Critics of the draft and other forced labor programs have been raising similar arguments for over 100 years. That's why the WWI-era cases I discussed in my previous posts arose in the first place.

I did not claim that today's Supreme Court would accept my arguments in accept in the single instance that it probably would not uphold the road labor program at issue in Butler v. Perry.
9.25.2007 12:14pm
MI (mail) (www):
Making forced labor a legal duty is not enough to get around the Thirteenth Amendment's ban on involuntary servitude and was not so considered in the 19th century.

The issue here seems to be whether the term "involuntary servitude", as originally understood, admitted implicit exceptions to its plain meaning.

Correct me if I'm wrong, but IIRC, the Thirteenth Amendment is basically a carbon copy of the Northwest Ordinance &its successor statutes in other states; as such, the original meaning of the Thirteenth's language would presumably be that ascribed to terms of the aforementioned statutes sharing such language. (Indeed, as I recall, the drafter of the Thirteenth made a statement to this effect.) Given that, as you've noted previously, states having such statutes also had road service laws, it would appear that the term "involuntary servitude", as used in those statutes, was not understood as encompassing these forms of forced labor.
9.25.2007 12:14pm
Ilya Somin:
I think it's more important to at times recognize that there are many compelling needs and values shared by the diverse people who inhabit this country, and that in some circumstances one value (general opposition to forced labor) might be overcome by another value (need for a mostly random cross-section of the community to sit in judgment).

I don't see why any of those other values can't be achieved without resorting to forced labor. As for a mostly random cross-section of the community, pollsters achieve that all the time even though no one is required to participate in polls.
9.25.2007 12:17pm
Milhouse (www):
National service is certainly servitude, but I'd argue that jury service isn't. A juror is taking part in the government; he is part of the judicial branch. Certainly in the 19th century "servitude" was regarded as demeaning, and I can't imagine that the word could be applied to being part of the government. I'd say that if a state decided not to require its congressional candidates to consent to their nomination, and instead to compel them to serve if elected, that would be constitutional, and the same would be true if the electoral college insisted on electing a president who refused to serve, and the secretary of state refused to accept his resignation.
9.25.2007 12:19pm
Ilya Somin:
I have some suspicion that, while jury duty and national service are certainly involuntary, they may not be appropriately called "servitude", since the reduction in liberty is limited to part of the day, and is owed to the (democratically) legitimate state, as opposed to a private citizen.

The Constitution is no way distinguishes between forced labor that is owed to the state and that owed to private individuals. If it did, southern states could have reimposed plantation slavery simply by passing laws stating tht it was an obligation to the state and then perhaps rent out the now state-owned slaves to private farmers.

Still less does it distinguish between forced labor for only one part of the day and the whole day. Even slaves were, in fact, generally given at least a small part of the day as free time.
9.25.2007 12:22pm
TomH (mail):
One thing I notice from my reading of these threads is a distinction between public and private service. There is no cited case where involuntary private service is tolerated, but in the public sector several named exceptions seem to lay in a grey area (jury and military come to mind).

I do not have time to do research here at work, but the key may be in the original writers' defninition of "involuntary servitude". Is it conveivable, that by these terms, and in particular "involuntary servitude" they did not include the State as "master?"

By the way, AF above, requests some citation for information on the founders ideas abut conscription. The Congresshional Record from the first decade of the 19th Century reflects how they agoized over the need to recruit for the Navy, ultimately agreeing on the benefits of all volunteer crews, unlike the British Navy that the US emulated in many other ways.

It is my opinion that regardless of whatever other reasons may have been expressed, at heart the early Congress found the idea of compulsory service distasteful, but not unconstitutional.
9.25.2007 12:23pm
Ilya Somin:
What possible basis is there for claiming that bench trials are more accurate than jury trials? Most empircal evidence suggests the opposite (the "wisdom of crowds") but a definitive answer is impossible.

It is odd, however, to see a libertarian prefer decision-by-government-bureaucrat rather than by ordinary people.


Judges are, on average, better-educated than jurors and more likely to be expert in analyzing evidence and addressing the issues likely to come up in a trial. That's far from definitive, but it is at least some reason to prefer them to jurors.

As for libertarianism, I don't think anything in libertarian theory suggests that government-conscripted ordinary people with little incentive to do a good job will necessarily perform better than career bureaucrats (whose incentives may be just as bad, but who at least have greater expertise).
9.25.2007 12:26pm
Steve:
I feel like we're watering down an anti-slavery amendment to the point where it's going to be interpreted to ban traffic lights any day now.
9.25.2007 12:26pm
CEB:
As a practical matter, how mandatory is jury duty? I suspect that if, during selection, a person were to honestly state that he believes that jury duty is involuntary servitude, he would almost certainly be struck. I can't imagine that a person can be punished--held in contempt or whatever--for having a belief that gets you stricken. (struck?)

I know that being able to get out of something does not necessarily make it not mandatory, but would a judge excuse someone who conscientiously objected?
9.25.2007 12:29pm
PatHMV (mail) (www):
Polls take from 5 to 30 minutes at most, not days or weeks. Getting someone to serve for a week or two of jury service is much harder than getting them to answer 20 minutes worth of questions on the phone when they're at home in the evening. The greater time commitment required the harder it is to get already employed people to participate. Even replacing their wage might not be enough to attract significant participation.
9.25.2007 12:30pm
Guest101:

I don't see why any of those other values can't be achieved without resorting to forced labor. As for a mostly random cross-section of the community, pollsters achieve that all the time even though no one is required to participate in polls.

Do you really believe that any legitimate comparison can be drawn between voluntary participation in a 15-minute telephone poll and voluntary participation in a days- or weeks- (or months-)long jury trial? If jury service were not mandatory, is it plausible to believe that anyone with a full-time job would choose to undertake it? Could any employer be expected to permit workers to voluntarily walk off the job for a lengthy period of time to perform a supererogatory service? And even if some did, wouldn't the self-selection among volunteer jurors itself render the resulting pool an inadequate cross-section of the community?
9.25.2007 12:35pm
PatHMV (mail) (www):
CEB... from my experience as a prosecutor, I can tell you it depends. If you are recalcitrant enough for any reason, the judge is not going to have you actually serve, because that would not be fair to the parties. But he might do something else to you.

I watched one guy try to be cute and avoid service by categorically stating a variety of beliefs such as that all people arrested by the police are guilty. From his tone and attitude, it was obvious he was saying this solely in order to get out of jury duty. The judge didn't put him on the jury, but he did require the man to come in and sit in the front row of the audience every single day that the jury was there, for as long as the jury was there.

Ilya, I don't mean this as a personal attack at all, as I have a great deal of respect for you, but I have to ask if your opinion of the abilities of judges and juries is based on theory or any practical observations on your part. My own experience in court is that judges are humans too, and while they are, by definition, better educated than the average juror, they are no more nor less likely to be honest, biased, wise, etc. than the random juror.
9.25.2007 12:35pm
bellisaurius (mail):
This post actually brings up an interesting idea behind why we have juries. To a common person, I'd think 98% would think that jury duty, while invouluntary, just shouldn't apply, if for no other reason because it would seem kind of silly (I'm just glossing my feeling on this).

A more nuanced person would say there are all sort of things that they're forced to do involuntarily by law (drive on the right side of the road, pay taxes, etc...), but that those things are sort of required to keep the system functioning, and aren;t so much an issue of involuntary servitude, but rather one of responsibility.

On the other hand, at a bench trial, something tells me there's a somewhat larger chance that a judge might be caught by the novelty, and admitted correctness in some sense, and therefore possibly agree.
9.25.2007 12:35pm
Ilya Somin:
Polls take from 5 to 30 minutes at most, not days or weeks. Getting someone to serve for a week or two of jury service is much harder than getting them to answer 20 minutes worth of questions on the phone when they're at home in the evening. The greater time commitment required the harder it is to get already employed people to participate. Even replacing their wage might not be enough to attract significant participation.

Of course polls are less work than jury service. But the government surely could attract "significant participation" if they paid the people enough to make it worth their while - just as they attract "significant participation" in the volunteer military by similar methods.
9.25.2007 12:38pm
TerrencePhilip:
Thus, unlike other forms of forced labor, mandatory jury service is necessary to secure a constitutional right.

Well why is it actually "necessary"- couldn't you pay people to be jurors? And besides, to the extent the 13th conflicts with the 6th, wouldn't it supersede the earlier amendment?

There is a pretty fair argument that mandatory national service is, at least in the right situation, essential to national survival; certainly in the 1860s such situations were imaginable. Without an independent nation you'd have no "constitutional rights" at all. So, your argument that you will reluctantly carve an exception to your 13th Amendment theory for "constitutional rights" sounds more like a non sequitur than a faithful application of your literalist theory.
9.25.2007 12:40pm
jack-999 (mail):
Couldn't the objection to jury service as "involuntary servitude" be mitigated if jurors were *fully* compensated for the direct and indirect costs of their service?

In other words, if I'm a brain surgeon who makes $500 per hour, and I get called to 8 hours of jury service, the Gov't ought to reimburse me $4000 plus per diem plus parking plus childcare (if applicable), etc., etc.
9.25.2007 12:42pm
Ilya Somin:
Ilya, I don't mean this as a personal attack at all, as I have a great deal of respect for you, but I have to ask if your opinion of the abilities of judges and juries is based on theory or any practical observations on your part. My own experience in court is that judges are humans too, and while they are, by definition, better educated than the average juror, they are no more nor less likely to be honest, biased, wise, etc. than the random juror.

No offense taken at all! But my opinion is based on both theory and observation. As a matter of theory, education counts for a lot in enabling a person to assess evidence. Other things equal, more educated people will do a better job in this field. I agree that judges are probably not not more honest, unbiased, and wise than the random juror. I do, however, believe that they, on average, likely to be much better at evaluating evidence - especially complex evidence in difficult cases. That's based both on extensive acquaintance with judges, and on broad acquiantance with the data on the relative ignorance of the average person.
9.25.2007 12:43pm
AF:
Actually, they are not novel. Critics of the draft and other forced labor programs have been raising similar arguments for over 100 years. That's why the WWI-era cases I discussed in my previous posts arose in the first place.

Good point. But of course, those arguments were rejected. So my original question stands: has anybody else agreed with you?

If not, the follow-up question would be: Why should these arguments be accepted now when they never have been in the past? The answer would have to be either (1) because national civilian service programs of the sort being proposed have never been implemented -- in which case you would have to abandon your opposition to the military draft and retreat from your "plain text" argument -- or (2) because something has changed. The argument that "nobody has ever noticed what the plain text of the Thirteenth Amendment says" isn't going to fly.
9.25.2007 12:45pm
Ilya Somin:
Good point. But of course, those arguments were rejected. So my original question stands: has anybody else agreed with you?

If not, the follow-up question would be: Why should these arguments be accepted now when they never have been in the past?


Lots of people have agreed with me (or rather made similar arguments long before I made them).

As to why these arguments should be accepted now, even though courts rejected them in the past (mostly in decisions almost 100 years ago), it's because the arguments are right and those courts were wrong. The fact that Courts decided an issue a certain way doesn't prove they were right to do so.
9.25.2007 12:57pm
Hans Bader (mail):
Having to sit on a jury is a downright trivial inconvenience compared to other impositions that the courts have stupidly upheld against Thirteenth Amendment challenges, such as having to pay child support for a child that is not biologically yours, or is the product of statutory or actual rape.

Under our courts' 13th Amendment jurisprudence, it violates the 13th Amendment to jail somebody for not paying a private debt.

But, inconsistently, the courts say it doesn't violate the 13th Amendment to jail somebody for not paying child support (a state-imposed debt), even when (a) the child results from the father being raped (either actual rape or statutory rape), or (b) even for a child that is not biologically the child of the purported father, but whose support is forced upon him through paternity fraud reinforced by legal doctrines like the legal presumption of paternity (in some states, the husband is still deemed the father of the child that results when his wife sleeps around with another man) or equitable estoppel (where the cuckolded husband erroneously believes the child is his, takes care of the child, and later is ordered to pay child support for that child when his unfaithful wife later gains custody of the child following a subsequent divorce).

Compare to being forced to pay 21 years of child support payments, having to sit on a jury is trivial.

For an example, an Alabama appeals court ordered a rape victim being to pay one-third of his net income in child support to his rapist, in S.F. v. State ex rel. T.M. (1996) (mother has sex with father while he was asleep, which neither the mother nor the court disputed had occurred or qualified as rape under state law).

If Ilya wants to be outraged by involuntary servitude, he should look into family law. There are plenty of examples in Virginia, in his own backyard, that he could look into, like the fact that Virginia courts enforce a Catch-22 policy of not allowing fathers to challenge excessive child support awards that they cannot afford to pay unless they first put up an (unaffordable) appeal bond for the full amount first before their appeal can even be heard. (See Mahoney v. Mahoney (Virginia Court of Appeals)).

Dave Briggman, himself a Virginia libertarian like Ilya, has experienced such abuses firsthand.

(Note: I am not divorced, am happily married, and don't pay, or owe, child support).
9.25.2007 12:57pm
Ilya Somin:
There is a pretty fair argument that mandatory national service is, at least in the right situation, essential to national survival; certainly in the 1860s such situations were imaginable. Without an independent nation you'd have no "constitutional rights" at all.

In "the right situation," the violation of almost any constitutional right might be necessary for national survival. For example, in some situation, maybe the only way to prevent a Nazi takeover would be to violate the right of freedom of speech. It does not follow that doing so is constitutional. Rather, these may be cases where unconstitutional action is preferable to the alternative.

Alternatively, one might argue that there is an implicit exception to all constitutional rights in cases where violation is necessary to secure national survival. But if so, that exception should be narrowly limited to cases where national survival really is at stake. The government's mere assertion that it is should not be sufficient.
9.25.2007 1:01pm
Roach (mail) (www):
Jury service fits in nicely in the liberal-republican debate about the founding. Jury service, militia service (mandated by early Congressional statute), and the like were all considered important reciprocal duties of citizenship and something in which one would take pride. The idea that the system was just some Rube Goldberg contraption that ran on auto-pilot without anyone doing anything civic minded was absent, though it's quite present in libertarian "thought."

One of the roots of disagreement between libertarians and conservatives is the extent to which one believes that people, pursuing their self-interest, collectively bring about the common good.

One view, echoed in Madison and Adam Smith, is that if a society is properly structured, by pursuing individual self-interest the common good can come about "as if by a visible hand." Madison in particular seems to say that by counter-balancing self-interests, the evil of faction will be exhausted and only the most just and widely supported policies will likely make it through the hurdles of divided government.

Another, found in Burke and Adams and in Catholic Social Thought, is that self-interest alone cannot do the job. It theorizes that men are not motivated merely by reason, but by some combination of reason, appetities, and more middling feelings (like patriotism or love of justice). These latter feelings can be a great bulwark of the state and society, or its greatest enemy. If the latter are not well harnessed and tutored, mere appetites and reason will permit the greatest evils by moral imbeciles.

I think both of these philosophies have a lot to recommend. But the question becomes, "Is self-interst all that is needed?" Can these systems work well in an age of ideologically motivated men, who can publicly and shameless announce their intentions to support some abstract principle over the society they ostensibly serve? Does it work well, for example, if individuals in free markets generally are not motivated (or at least hindered) by notions of patriotism or honor? Finally, and most directly, does any of this work well if people are not educated about and loyal to the idea of a free society? That is to say, does this Rube Goldberg contraption that is a free market or a constitutionally-limited government (the combination of which we generally think of as a free society), need some external infusion of public-spiritedness to work?

I suggest it does, and I believe the Founders would agree. And I think that many "Classical Liberal" thinkers would likely agree as well. What part of self-interest, for example, says not to steal when I can get away with it? Or seek government subsidies? Or to help another nation undermine my own (so long as I am well rewarded)? Is it not some internal chain, some epiphenomenon of a moral education, that says these actions are beneath my dignity and simply wrong? Does a free society not depend on something more than well-structured institutions and self-interested actvity, but instead on some abstract commitment to the end of a free society as well?

Of course, this is where libertarians hyperbolic focus on the STATE and SERVITUDE misses something important: we owe something to our society, not to pursue national greatness or because it grants us our rights, but because we are born into a world of benefits that we have not contributed to. More important, freedom itself can be extinguished if a small part is not given up for the common benefit. This is why we allow the state to define easements and the like, and we also allow it to impose certain demands without which the entire system would melt down in a type of "collective action" failure no different than any other where collective action is required.
9.25.2007 1:03pm
PersonFromPorlock:

Coercion was...believed to be necessary to ensure that the jury would be a representative sample of the citizenry.

Since jury duty was compulsory even in the days when juries consisted of white male property owners, I doubt this was the original argument; now, it smacks of rationalization.

Slightly OT, but it's worth pointing out that paying jurors realistically for their time would increase the cost of jury trials by... nil. The cost is already there but it's only the jurors who bear it now.
9.25.2007 1:11pm
Grange95 (mail):

Judges are, on average, better-educated than jurors and more likely to be expert in analyzing evidence and addressing the issues likely to come up in a trial. That's far from definitive, but it is at least some reason to prefer them to jurors.


For most cases, the analysis of the evidence does not require any paricular academic skills that would be conferred by a greater level of education. Instead, most juries are asked to sort through which witnesses were more credible, and which theory of the case was most consistent, issues requiring experience (wisdom, perhaps, as opposed to intelligence?). Further, on any given jury, you will almost certainly have at least a couple of better educated jurors who can take a certain responsibility for any technical data that may be relevant. Also, in terms of highly complex information, what's to say any particular judge will have a better grasp of the evidence than a group of people?

Finally, before I abandon juries for judges, I want a system that requires judges to be appointed on a non-partisan, merit-based system (such as here in Iowa and several other states), rather than being elected (as many states continue to do). Do you think a judge who is elected will ever feel the freedom to make a highly unpopular yet legally correct decision? At the very least, the judge's motives would be subject to question in any controversial case, and we already have too much distrust of the legal system.
9.25.2007 1:12pm
Mark Bahner (www):

For example, under the Sixteenth Amendment Congress was given an unlimited power to "lay and collect taxes on incomes." That does not mean, however, that Congress has the power to impose discriminatory taxes that violate the preexisting First Amendment by targeting people who engage in speech critical of the government.


A much more important caveat would be that the Sixteeth Amendment does not over-ride the Tenth Amendment's limitations on Congressional power. (The Supreme Court's bogus Social Security ruling and countless others notwithstanding.)
9.25.2007 1:12pm
Gerg:
I think there's a subtle logical fallacy in your digression about bench trials versus jury trials. Namely it may be (and I believe is) the case that in no single trial is a jury trial superior to a bench trial, and yet a justice system in which jury trials are available to defendants is superior to one in which they are not.

If there was no right to a jury trial then there is no protection from a unjust laws or a capricious judge imposing arbitrary decisions. Even if in any given trial a bench trial is trustworthy it's only because of the possibility of a jury trial that that's so.
9.25.2007 1:17pm
r78:

As a matter of policy, I doubt that trial by jury is superior to bench trials, especially in cases with complex evidence that many jurors lack the competence to assess.

Do you have any experience - at all - in conducting or participating in jury trials?

I would guess that about 80% of trials do not have complex scientific or evidentiary issues that require expert testimony. In those cases, it is just silly to argue that a single judge would be superior to 12 jurors in assessing credibility and reasonableness.

And, even in the cases that do have complex expert testimony, there is almost always an expert for each side, both in effect arguing their client's position on the issue. Again, it will come down to credibility between the two experts. I once had a case where the opposing side had a genuine Nobel laureate as an expert witness and my expert was "just" the chair of the economics department at a major university. Given that, do you really think that a random judge (who almost certainly did not have the intellectual abilities of either witness (and who, gasp, may have even gone to a State school and may have been appointed only because he raised $50,000 for the governor's campaign 6 years ago) would be able to wisely decide which of these witnesses was right about economic impacts of certain banking transactions? Of course not.

You assume that there is a significant overlap between a) being a judge, b) being intelligent, and c) being able to assess credibility. There isn't really.
9.25.2007 1:21pm
Joe Kowalski (mail):
The problem I see with claiming that the 13th amendment should block jury service is that it comes into conflict with a person's right to a trial by jury. If a jury cannot be raised to try the person (whether by volunteer or by compulsion), than that person's right to a jury trial is abridged. Further it might be arguable, that in order to enjoy one's right to a trial by jury, one must also take on the obligation of providing jury service when called upon.

Now while the 13th amendment (since it came after the article 3 right to jury) could be interpreted via raw textualism to supersede the right to a jury, I seriously doubt that was ever the intent.
9.25.2007 1:22pm
Gerg:
It seems military conscription is an even more direct threat to the thirteenth amendment. Wikipedia says the courts have ruled that it doesn't violate the amendment but doesn't go into detail on why.
9.25.2007 1:24pm
AF:
As to why these arguments should be accepted now, even though courts rejected them in the past (mostly in decisions almost 100 years ago), it's because the arguments are right and those courts were wrong. The fact that Courts decided an issue a certain way doesn't prove they were right to do so.

This is a completely unconvincing form of argument. It's not just that courts have rejected your arguments in the past; the elected branches have as well, as evidenced by the fact that they have continually implemented military drafts. The fact that the democratic branches have accepted a practice for over two centuries does tend to prove that it is constitutional, because the Constitution derives its legitimacy from democracy. It isn't conclusive -- see, eg, Brown v. Board of Education -- but it takes a lot more than a plain language argument to overcome.

Brown illustrates this point: It overruled Plessy not in spite of, but because of, the long history of Jim Crow, which it emphatically rejected. Until you are willing to engage with the historical experience of compulsory service in a similar way, your argument won't get off the ground.
9.25.2007 1:25pm
Daniel San:
jim: I would additionally note that there is some evidence that the jury trial was not originally understood as a right of the accused, but as a right of the People, as represented through a jury, to dispense justice.

Are you referring to the Athenian practice or to the English practice? The Athenians did do quite well at populating their juries with volunteers; whether they were fairly composed is another matter. Of course, a jury of hundreds in a high-profile case can present problems of its own.

IS: As a matter of theory, education counts for a lot in enabling a person to assess evidence. Other things equal, more educated people will do a better job in this field. I agree that judges are probably not not more honest, unbiased, and wise than the random juror.

Education counts for a great deal in assessing complex evidence. But maybe not in assessing credibility. And the judge, who is generally well educated and is a part of the system, will carry a different sort of biases than a group of (sort of) randomly selected citizens. One purpose of the jury system is to exchange the outsider biases for the insider biases.
9.25.2007 1:29pm
Public_Defender (mail):
You missed on important rationale for jury service--it's a check on the power of the State. Before imprisoning someone, the State must convince a body of citizens that the person is guilty. I think Scalia derided trial by judge as getting a decision by a "lone employee of the State" (or words close to that).

Unfortunately, the right has been diminished by forbiding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

Libertarians should applaud trial by jury. It's one more check on State power.
9.25.2007 1:42pm
Mark Field (mail):
I think Prof. Somin has a far too idealized image of judges. Sure, some of them are intelligent and reasonable. Many of them, however, are neither; as someone else suggested, they were appointed because they donated a lot of money to the governor. I'm mystified that a libertarian would prefer to let government bureaucrats make a decision rather than ordinary citizens.* My own personal experience is similar to that of PatHMV: most of the time, I'll take the jury.

*We could do a lot to improve the current jury system, of course.
9.25.2007 1:43pm
M. Simon (mail) (www):
You want people to do jury duty willingly?

Pay them what their time is worth.

Or say to keep from being ruined by Bill Gates make it something like an income rate that would include 75% of the population.
9.25.2007 1:46pm
Horatio (mail):
Taking this line of reason to its logical conclusion, any tax on wages is unconstitutional.

Hmmmm ...


Yah think?

:)

And immoral - but then never let morality get in the way of legality
9.25.2007 1:50pm
Mark Bahner (www):

Unfortunately, the right has been diminished by forbiding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).


Petit jurors don't have that right?

Have anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?
9.25.2007 1:57pm
Kevin P. (mail):
Astoundingly, I find myself agreeing with both Randy R. and Mark Field on something!!

I too prefer to take my chances with the average citizen than with the government-appointed bureaucrat. The professional judge is a permanent employee of the institution of the government and has his own set of biases, particularly with respect to conduct that the institution of government tends to approve or disapprove of. It is no surprise, for example, that many federal judges tend to approve of the expansion of the federal government, or that many local judges tend to sway to either greatly favor or greatly disfavor police practices depending on local politics.

Like Mark Field, I too would like to see the jury system strengthened and made more effective. I am open to reasonable proposals to fairly compensate jurors for their loss of wages or earnings. Like Randy R. I also agree with the concept of having short jury trials. I would also point out that if an jury of ordinary citizens is too incompetent to understand the law or facts in a case, why do we expect the citizen defendant to have understood the law or facts either?
9.25.2007 2:08pm
Marco:

You missed on important rationale for jury service--it's a check on the power of the State. Before imprisoning someone, the State must convince a body of citizens that the person is guilty...Unfortunately, the right has been diminished by forbidding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

IANAL, but I think I recall a general discussion on the VC, and the consensus seemed to be that while a sufficiently informed and stubborn juror could not be overturned in practice, jurors did not have the right to ignore positive law. But then again, I thought I saw somewhere else a case where a judge tried to punish a juror who openly supported jury nullification. Maybe somebody with Lexis access could provide a citation?
9.25.2007 2:10pm
AK (mail):
Forcing people to work for the government for weeks or months at a time is clearly "involuntary servitude"

It's not clear at all. Sure, using a 2007 definition of "involuntary servitude" leads to that conclusion, but it takes a special type of historical illiteracy and shameless Randian mental contortion to argue that the term "involuntary servitude" could be understood by a Thirteenth Amendment contemporary to strip the states and the Federal governmnent of the power to compel military or civic service.

It might interest you to learn that, immediately prior to the passage of the Thirteenth Amendment, the States had just fought a bloody war with each other over issues related to the legal status of involuntary servitude. Believe it or not, that war had little to do with compulsory jury service.
9.25.2007 2:26pm
AK (mail):
It's not just that courts have rejected your arguments in the past; the elected branches have as well, as evidenced by the fact that they have continually implemented military drafts. The fact that the democratic branches have accepted a practice for over two centuries does tend to prove that it is constitutional, because the Constitution derives its legitimacy from democracy

You win the prize for best answer.

The very same state legislatures that ratified the 13th amendment simultaneously conducted jury trials with compelled jurors. They understood that they were ratifying an amendment that banned slavery, not one that destroyed their power to compel jurors.
9.25.2007 2:31pm
NickM (mail) (www):
Acknowledging that the Fourteenth Amendment incorporated rights from the Bill of Rights against the states greatly weakens the case for arguing that the Thirteenth Amendment worked an implied repeal of the Sixth and Seventh Amendment jury trial rights.

Nick
9.25.2007 2:47pm
TruePath (mail) (www):
First of all I think you miss the primary value of jury trials. They are not a superior way to decide actual questions of fact (did so and so violate the text of this law). Rather they function as a check against the tyrannical power of the government and a common sense check that stops laws from being used in inappropriate ways. Judges are (rightly) better trained to focus on the law as opposed to the results so may (unhappily) convict some 17 year old boy for having sex with his 17 year old girlfriend under some statutory rape statute. Juries are much more ready to reject truly absurd results and refuse to convict.

---

As far as your interpretive philosophy goes I don't think it makes sense. You take yourself to be governed entirely by the actual textual meaning of the words but how do we determine that meaning? The meaning of words is determined by common usage. Therefore if we discover that it doesn't even occur to anyone that jury service is involuntary servitude this is strong evidence that it isn't contained in the meaning of the term.

Let's give an example that will illustrate what I mean. Suppose after a tragic drowning incident a small town passes the following law, "Any parent who allows their child to play within 20 feet of a bank shall be guilty of a misdemeanor." Now obviously the intent of this law is to prevent parents from letting their children play on river banks but textually it just as much applies to children playing near banking institutions. Does your textualism really require that the court should convict the parent who allows their children to play near the money lending institution in town? In short it just isn't possible to ascribe meaning to textual strings without looking at the context they were created in and the intentions of those creating them.

However, if we accept this point and apply the same reasoning to the thirteenth amendment case I think we would find that the meaning of "servitude" in this context does not include jury service.
9.25.2007 2:55pm
gasman (mail):
Who could be against 'conscripted' juries? I suspect criminal defense attorneys would be leery of the justice that might be dished up by the 'professional' unpaid jury of retired civic minded white guys who hear a few cases each morning before heading down to the waterbuffalo lodge for dinner and drinks. Conscription is the only way to get a pool of young, poorly literate, unemployed and maleable jurors.
9.25.2007 3:10pm
TruePath (mail) (www):
Two more quick points.

1) It doesn't matter whether juries technically have the right to refuse to apply the law anymore than arguments about gun ownership being necessary to protect the people from government tyranny are refuted by the fact that it would be illegal to resist a tyrannical government. As the Kevorkian trials prove juries will refuse to convict if they think the sentence would be unfair (whether you agree with what these juries thought or not).

2) I don't think most people even in 2007 would agree that "jury service is a form of involuntary servitude." "servitude" implies an inferior position like that of a servant or slave and jury service lacks that aspect.

3) The usual argument for textualism is that we must abide by the original common meaning of the statute or law. In other words we must apply the law using what the people of the time would have thought the words meant. Now of course there is an ambiguity here, when should we say the people of the time merely failed to realize some of the implications of this meaning (the example with blasphemy laws) and when should we say they understood the meaning differently (my bank vs. bank example above). However, it seems clear that in this case it wasn't merely that it didn't occur to people of the time to ask whether jury service was involuntary servitude but they just didn't take the meaning of servitude to include common community obligations.
9.25.2007 3:10pm
pete (mail) (www):
I think the Athenian method would quite well, which according to Aristophanes in the Wasps usually amounted to paying bored retired people to serve, but most local governments would balk at the cost.

My county does not even guarantee jurors that their parking will be paid for (you can get your parking validated, but only at one garage that is often full) so jurors could come out losing money each day they serve just in transportation costs.

I do not mind serving on a jury, but jurors need to be treated with as much respect as lawyers, instead of like cattle with no rights, while they are serving and given some decent compensation for their time.
9.25.2007 3:12pm
Public_Defender (mail):

Petit jurors don't have that right (to refuse to convict even where the facts support a conviction)?

Have anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?


No, but if a juror tells other jurors that he is holding out because he or she thinks the conviction of the defendant would be imprudent, the judge would remove the hold out and the decision would stand up on appeal.

Under current precedent, petit jurors have the power to nullify, not the right. And they only have the power to mullify as long as they keep quiet or lie about why they are voting the way they are voting.

As to involuntary servitude, if a juror must serve for two weeks every ten years, then the person is effectively taxed 0.38% (2 weeks of service every 520 weeks). Yes, some serve more, but I'd bet if anything, the average is less than that.

An effective tax of .38% is reasonable to secure a right that's clearly set out in the Bill of Rights.
9.25.2007 4:13pm
JBL:
1.

My main problem with mandatory jury service is not that I am required to serve, but that I have no control over the timing. I would be happy to serve, but the cost of doing so varies a lot. Most weeks my professional duties can be rescheduled if necessary, but every other month or so I have a trip out of town that can't. Giving citizens the option to serve at a more convenient time would dramatically reduce the cost of serving without reducing any of the merits of compulsory service.

2.

As to the tangent about the merits of jury trial, it should be stated that eliminating the jury from most trials does not necessarily mean abandoning the adversarial system. Defendants could still have a professional advocate and the ability to appeal.

In addition, the rulings would be a matter of public record. A judge who disregarded factual matters in order to enforce his personal preference would do so at great risk to his career. That's another difference between judges and juries - judges are not necessarily less biased than random citizens, but they are much easier to subject to scrutiny.

3.

A thought experiment: it could certainly be argued that the people's ability to monitor judges would be more important at the appelate level. What about the Supreme Court? If the merits of jury trial hold, would it not be better to have each Supreme Court case decided by a different group of twelve randomly chosen citizens?

Probably not, but is the difference instructive?
9.25.2007 4:21pm
Hank:
I haven't read the previous comments, so forgive me if someone has already made this point, but jury service -- in the sense of actually being on a jury -- is not mandatory. All that you have to do to avoid it is to tell the judge that you are biased in favor of or against one of the parties. It is mandatory, however, that you show up in order to tell the judge that. Therefore, this does not eliminate the 13th Amendment issue, but it mitigates the nature of the servitude.
9.25.2007 4:34pm
Public_Defender (mail):

My main problem with mandatory jury service is not that I am required to serve, but that I have no control over the timing. I would be happy to serve, but the cost of doing so varies a lot.


As far as I know, many, if not most, courts will allow you to reschedule jury serice.


All that you have to do to avoid it is to tell the judge that you are biased in favor of or against one of the parties.


The judge can generally make you wait around to sit on another jury. I remember reading that one judge made someone with your attitude sit at an empty desk during the entire jury service stint.
9.25.2007 4:58pm
Horatio (mail):
Fully Informed Jury Association

From their site

+++++++++++

Juries protect society from dangerous individuals and also protect individuals from dangerous government. Jurors have a duty and responsibility to render a just verdict. They must take into account the facts of the case, mitigating circumstances, the merits of the law, and the fairness of its application in each case. The recognition of the authority and right of jurors to weigh the merits of the law and to render a verdict based on conscience, dates from before the writing of our Constitution, in cases such as those of William Penn and Peter Zenger. Should this right ever be suppressed, the people will retain the right to resist, having an unalienable right to veto or nullify bad and oppressive laws, and in fact then would be morally compelled to do so.

Jurors, as the representatives of the people, hold no personal agenda during any trial and most certainly not the government's agenda. Let us not forget that the prosecutors, judges, arresting officers - and the forensic investigators in most cases - are all a part of and receive their paychecks from government, with personal power bases to build and personal careers to protect through the "productivity" of successful prosecutions resulting in convictions. Jurors have no such stake in the outcome, and are, in fact, the only truly objective individuals in the courtroom.

The role of our jurors is to protect private citizens from dangerous government laws and actions. Many existing laws erode and deny the rights of the people. Jurors protect against tyranny by refusing to convict harmless people. Our country's founders planned and expected that we, the people, would exercise this power and authority to judge the law as well as the facts every time we serve as jurors. Juries are the last peaceful defense of our civil liberties.
9.25.2007 5:25pm
K Parker (mail):

Public_Defender,
Unfortunately, the right has been diminished by forbiding both ... petit jurors the same right to use discretion that prosecutors enjoy (i.e., not ... convicting even where the evidence supports it).
I think it's more accurate to say that jurors still have that right; they just can't talk about it.

Marco, I remember something similar to what you're asking, but IIRC in that case the issue of jury nullification had been explicitly raised during voir dire, the juror in question had claimed to be willing to follow instructions, and then later divilged that she didn't really mean it, so was threatened with some kind of contempt action based on that.
9.25.2007 5:47pm
Mark Bahner (www):
Public Defender wrote:


Unfortunately, the right has been diminished by forbidding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).


I responded,


Petit jurors don't have that right?

Has anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?


Public Defender replies:


No, but if a juror tells other jurors that he is holding out because he or she thinks the conviction of the defendant would be imprudent, the judge would remove the hold out and the decision would stand up on appeal.

Under current precedent, petit jurors have the power to nullify, not the right.


Ah, semantics! While not disagreeing with your interpretation, I'd like to point out that rights that aren't recognized are still rights. (At least says Thomas Jefferson and I! ;-))

This comes up in the context of something that would be far worse (in my opinion, and hopefully the vast majority of all U.S. citizens')...mandatory 2-year "public service" for 19 and 20 year-olds.

I say that even if (God forbid!) such a law were passed in the U.S., it would not mean that every 19 and 20 year-old doesn't have an "unalienable" right to pursue happiness. It merely means that their government and fellow citizens are trampling on that right.

Returning (briefly ;-)) to jury nullification: As I recall from my one stint as a juror at a medical malpractice trial in North Carolina many years ago, I was asked whether I could render a verdict according to the laws of North Carolina (as explained by the judge), rather than my personal feelings. (I said I could, and I did.) My guess would be that, for example, a Prosecutor would ask a similar question in a case such as a medical marijuana case, e.g. "Can you render a verdict in accordance with federal law, rather than your personal feelings...or even California Law?"

My vague recollection was that I was made to take an oath that my answers to questions about my participation as a juror would be true. (Can anybody here say whether or not that is true for North Carolina or other states? That is, are jurors required to take an oath to answer pre-trial questions truthfully?)

P.S. So for the hypothetical federal medical marijuana case above, I would have to ask the Prosecutor, in response to the his or her question, "Do you mean according to the Supreme Law of the Land, the U.S. Constitution…or do you mean according to federal laws as judged by a Supreme Court I hold in contempt, as voted by a Congress I hold in contempt, and as enforced by an Executive Branch I hold in contempt?"

P.P.S. I don't expect ever to be seated as a juror on a medical marijuana case! ;-) And it would be very interesting to see whether such a response would (properly) earn me a Contempt of Court citation! ;-)

P.P.P.S. Of course, I would never have such a snappy comeback in real life.
9.25.2007 6:15pm
john w. (mail):
K. Parker (4:47 PM): I think you are referring to the Laura Kriho case.

http://en.wikipedia.org/wiki/Laura_Kriho
9.25.2007 6:35pm
Mark Bahner (www):

"Any parent who allows their child to play within 20 feet of a bank shall be guilty of a misdemeanor." Now obviously the intent of this law is to prevent parents from letting their children play on river banks but textually it just as much applies to children playing near banking institutions. Does your textualism really require that the court should convict the parent who allows their children to play near the money lending institution in town?"


Well, the Supreme Court recently ruled in that manner. See PGA Tour vs Martin, in which the Supreme Court decided that the area "inside the lines" during a PGA Tour event was considered to be a "public accomodation."

Let's face it, everyone...the Supreme Court does (and pretty much always has) simply make up whatever they need to achieve their desired outcome.

Supreme Court rules a river bank is a money bank
9.25.2007 6:42pm
David Schwartz (mail):
Any scheme to change the compensation of jurors will inevitably alter the composition of jurors. The current scheme doesn't produce a fair composition, so it's not necessarily automatically bad to change it. But there will certainly be huge opposition to the change from one side or another.

An extremely important concern has to be the fairness of juries. I think that's even more important than the involuntary servitude issued. (And I'm basically a Libertarian.)

This reminds me of the efforts to have a "voter lottery" where every voter gets a chance at a million dollar prize. I opposed this because it seems to me to be a fairly transparent attempt to re-engineer the voter composition. Change the prize to a ten year exemption from capital gains taxes and see how the Democrats/Liberals feel!
9.25.2007 7:13pm
Mark Bahner (www):

Any scheme to change the compensation of jurors will inevitably alter the composition of jurors.


How so? The compensation now is ridiculously low. Why would changing it to something much higher, e.g. 1.5 times the local average salary, change the composition of juries? And toward what composition?
9.25.2007 7:52pm
john w. (mail):
" ... Why would changing it to something much higher, e.g. 1.5 times the local average salary, change the composition of juries? ..."

Just to give one example, right off the top of my head: Under the current system, people who are self-employed have a tremendous incentive to evade jury service. A lot of that incentive would disappear if jurors were fairly compensated for their time.
9.25.2007 8:00pm
Mark Bahner (www):

Just to give one example, right off the top of my head: Under the current system, people who are self-employed have a tremendous incentive to evade jury service. A lot of that incentive would disappear if jurors were fairly compensated for their time.


OK, that seems right. It would indeed probably change the composition in that way. But I don't under why, "...there will certainly be huge opposition to the change from one side or another."

It doesn't seem to me like it would be clear which "side" would be helped or hurt, especially over a huge range of cases.
9.25.2007 9:50pm
Heather:
" ... Why would changing it to something much higher, e.g. 1.5 times the local average salary, change the composition of juries? ..."

Well, in Milwaukee, black and Hispanic jurors fail to show up 3.5 and 5.2 times as often as white jurors. "More money than going to work" is a powerful motivation to get over one's fear of the courthouse, hatred of "the system", etc.

More minorities on more juries could decrease the "all-white jury" appeals on convictions of minorities, and that'll bother someone.
9.26.2007 1:46pm