On Juries
An Essay, By Alexander Marriott
Is it just or reasonable, that most voices against the main end of government should enslave the less number that would be free? More just it is doubtless, if it com to force, that a less number compell a greater to retain, which can be no wrong to them, thir libertie, then that a greater number for the pleasure of thir baseness, compell a less most injuriously to be thir fellow slaves. – John Milton, The Readie and Easie Way to Establish a Free Commonwealth (1660)
Before diving into the issue this essay means to examine—jury service in a free state—some background is, at least briefly, appropriate. Dr. Leonard Peikoff, Ayn Rand’s intellectual heir and an eminent philosopher in his own right, hosts a weekly Q&A podcast. In this podcast, he fields questions from philosophical novices, young people, and otherwise intellectually curious individuals. On July 19, 2010, he answered the following question: “Should jury duty be compulsory as it is in the U.S. today?” His answer—which along with a number of other source materials is appended below after the end of this essay—was, in essence: Sure, so long as a number of conditions are met. The condition of greatest import for Dr. Peikoff was that if a jury system was decided to be essential for the effectual running of the criminal justice system (a question upon which he was agnostic)—which is a critical and essential reason for even having a government—then it was fine to issue a writ to summon a jury to judge the facts of a criminal or civil case. Further, he stated that if one established such a government, or chose to live within it’s jurisdiction—and let us be clear, there is no legal restriction to leaving the United States (except, of course, in the legal jurisdictions of certain other states)—then that implied an acquiescence “to contribute.”
Dr. Diana Hsieh, an Objectivist philosopher and Professor from Boulder, Colorado, who hosts her own internet podcast, NoodleCast, responded to Dr. Peikoff on May 19, 2011. Simply put, Dr. Hsieh’s position was that: “compulsory jury duty is just as much a violation of individual rights as is compulsory taxation or the draft. I think it’s morally wrong and I think that it’s impractical too.” Furthermore, she framed the issue as one of the initiation of force against an innocent citizen:
The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.
Her lengthy rebuttal also offered a number of alternative hypothetical scenarios by which a voluntary jury system might work. But, after asserting that there was really no reason to worry that there would not be enough volunteers for juries, she decided to address the question of what would happen if there simply were not enough volunteers: “What actually happens? Well you know what happens? The criminals go free. Conflicts don’t get resolved. And if that’s not incentive enough for people to serve on a jury—that plus the pay and experience and so on—then I think a free country doesn’t deserve to stay free. And that’s exactly the same as with the military—if people are unwilling to defend their country by taking up arms against an invader then conquest is the result that those people deserve.” Dr. Peikoff also suggested that the power to issue subpoenas was a critical pillar in a criminal justice system. Dr. Hsieh agreed and in the process summed up the nature of her objection to the act of summoning a jury with a judicial writ: “Subpoenas are not like jury duty, military service, and taxation. I think all those three things are the same, subpoenas are something different.”
In certain ways I think both Drs. Peikoff and Hsieh are correct and incorrect, though in disparate proportions. Dr. Peikoff could hardly be expected to give a very rousing defense of impaneling juries while being agnostic to the point of skepticism on trials by jury—and thus he does not. In fact, he indicated his fundamental disinterest in dealing with the question in anything resembling a complete fashion at the end of his answer: “I mean, the way we stand today, it’s a question of will the United States survive for a little while. So the question of how would juries operate in utopia? ha! I just hope people listening to me live long enough for it to come up.” That sort of prioritization is fine so far as it goes—but he could answer every question given to him in that manner if he wanted to, since they are almost all less important than the imminent demise of the Republic. Dr. Hsieh was certainly correct to actually try to delve into the principles behind juries and the process by which they are impaneled, but she erred grievously on several fronts in the attempt. First of all, comparing receipt of a writ to appear at a court to sit on a jury is not comparable to being conscripted into an army and sent off to die, nor is it in any way the same as having a tax collector continuously picking your pocket all year long and tossing you in jail for failing to help him out. The differences are quite obvious. Sitting on a jury is not deadly and while one could point to opportunity costs associated with the time spent waiting around to sit on a jury and the actual trial itself—this is a species of confusing public and private life, which I will come to later—sitting on a jury is compensated. On top of that—taxation actually physically removes money from your possession—serving on a jury may not compare to private sector work, but sitting on a jury is remunerated work.
Fundamentally, neither Dr. Peikoff nor Dr. Hsieh spent any time analyzing what, precisely, a jury is (Dr. Hsieh touched on this ever so briefly, but only in a minor digression), why we have them in the United States, or why writs are issued to impanel them as opposed to say, calling for volunteers. It strikes me as problematic to take on an institution of the greatest possible magnitude—the trial by jury—which has been fought for and bled for since Magna Carta and beyond, without at least nodding to the reasons why random writs were eventually settled on as the most equitable and logical way of assembling a jury. Eight or more centuries does not, by itself, make any practice or institution sacrosanct or unassailable (Spartans tossed infants into a chasm for almost as long, for instance), but I would expect that this particular institution, which every hero of liberty from Hampden and Sidney to Locke and Shaftesbury, and from Adams and Jefferson to Madison and Marshall exalted (all knowing full well that juries were summoned through the issuance of writs from a court), would receive at least some cursory examination. At the very least simply to know how and why so many who understood so well the nature of rights and government, force and law, could have overlooked this supposed assault on fundamental unalienable rights like life and liberty. In what follows, I will examine the precise reasons why the Founders of the Republic were so concerned about trial by jury and offer some of their rationale for why juries should be assembled by use of judicial writ. Though in all frankness, they did not approach the matter as one of an initiation of force. The jury was a bulwark of liberty and everyone was committed to its preservation. As I intend to show, as a political institution, you could not, in theory, be compelled to “serve” on a jury anymore than you could be compelled to be a citizen. If you were the one, you were the other. I will then more systematically analyze and critique the answers of Dr. Peikoff, and particularly Dr. Hsieh. Condemning a country so free that it touches its citizens so little even in the grips of conquest to deserved destruction—as she does—is the sort of fodder philosophers like Sir Robert Filmer and Thomas Hobbes used to point to as prima facie evidence of the perpetual inability of men to live in freedom and govern themselves. If that is the Objectivist answer to the question “What if people don’t volunteer in sufficient numbers to staff the juries?” then no statesmen or person who lives among other men—men who are sometimes not rational or only partly so—will see much applicable value in it as a philosophy capable of dealing with the predictable problems of governance, particularly self-governance. That is, the issues surrounding the protection of the individual rights of victims and the accused in the criminal and civil justice systems. Finally, I will briefly examine what, precisely, Ayn Rand had to say, or not to say, on the subject of sitting on juries through summons, and what Objectivism offers (or does not) on the matter beyond the defense and arguments provided by William Blackstone, John Adams, Thomas Jefferson, and Alexander Hamilton, among others.
PART I
The precise origins of the English—and by extension, the American jury—is murky and uncertain. While juries existed in Ancient Greece—Athens most famously—and under the Romans for certain purposes, the American conception of the jury is surely drawn from the time immemorial experience of feudal England. For much of its early known history up to the reigns of the last Tudor monarchs, the trial by jury was literally meant to protect peers—that is, Lords, Barons, Earls, Dukes and the like, from unjust persecution by the Monarch. Ecclesiastical courts in England functioned along a separate line of jurisprudence and, after Henry VIII’s reformation, the Crown took over this alternative judicial system as well. Under Henry VIII, Mary I, Elizabeth I, and the Stuart monarchs James I and Charles I, these courts were used to liquidate political enemies—all without juries, or through a frontal assault on the integrity of juries. For instance, when there were juries, they were made up only of those belonging to the official church of State—Catholic under Mary, Anglican under the others. Enemies of the wrong religion could expect little sympathy from a jury of their theological enemies in a period when they were garroting and burning each other at the stake. In addition to that, prominent enemies who could successfully gain a true jury of their peers were untouchable in effect—that is, until the accession of Henry Tudor (Henry VII) after the Battle of Bosworth Field (1485) and the subsequent establishment of the Star Chamber. In this special court there was no jury—you were judged by the King’s privy counselors. It was the flagrant abuse of this court that, among other reasons, eventually led to the English Civil Wars and the establishment of the English Republic in the mid-seventeenth century.
When the restored Stuart monarchs overstayed their welcome after the Restoration (1660) and were deposed by Parliament in 1688, a Bill of Rights was adopted. Among the “rights” Parliament laid out were: “That the pretended power of dispensing with the laws, or the execution of law by regal authority, as it hath been assumed and exercised of late, is illegal;” and, “That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.”
The watching colonists across the Atlantic waged their own miniature versions of this “Glorious Revolution,” particularly in New England where the colonial charters had been destroyed by James II and a military governor imposed. In 1689, when news arrived from England that James had fled at the advance of William of Orange (William III), the colonists deposed the governor and sent him to England in chains.
Of course, the colonists basked in the Glorious Revolution just as their allies in England did. The right of trial by jury was held as a fundamentally important right that the chaotic 17th century had finally ended by securing, once and for all—or so everyone thought. Unfortunately, while the colonists assumed this applied to all Englishmen at home or abroad, those living in England gradually developed a quite different understanding of the legal rights pertaining to Englishmen in England and those living in the colonies. During the Stamp Act crisis in 1765, the colonists declared what they assumed were their rights as Englishmen. Among them were jury trials, as they proclaimed: “That trial by jury is the inherent and invaluable right of every British subject in these colonies.”
As the Revolutionary crisis mounted between 1765 and 1775, the infractions on this “invaluable right” also mounted—most notably with the imposition of vice-admiralty jurisdiction on the colonies. In effect, because the Royal authorities lost confidence in colonial juries to find verdicts corresponding to the law—for instance a jury would not convict those responsible for tarring and feathering a tax collector trying to enforce the Tea Act, or anyone responsible for the Boston Tea Party—they transferred all cases to vice-admiralty courts in Halifax, away from a revolutionary jury pool. We see this in the list of grievances in the Declaration of Independence: “He has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts or pretended Legislation: ... For depriving us, in many Cases, of the Benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended Offenses.”
Nearly all State Constitutions adopted after the Continental Congress called on the States to draft them contained clauses guaranteeing the right of trial by jury. During the debate surrounding the adoption of the U.S. Constitution in 1787-1789, statements similar to this were common among both Federalists and Anti-Federalists: “It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.” Of course, this ubiquitous sentiment led to the adoption of the Fifth, Sixth, and Seventh Amendments to the Constitution in 1791. But the most expansive and striking argument made for the institutional importance of the jury was made by Thomas Jefferson in a letter to the Abbé Arnoux. “We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it;” Jefferson told his French correspondent, “and that this is the only to ensure a long-continued and honest administration of it’s powers.” But Jefferson went even further in stating the overwhelming importance of the American institutional arrangements involved in the trial by jury. Read his language here closely, particularly the second half, to fully appreciate the fundamental and foundational importance the people who survived the 1760s and 1770s gave to juries:
It is left therefore to juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people in all the three departments where that is possible.
Why this primacy? Quite simply it was the complete breakdown of law enforcement through jury nullifications that stymied British attempts to enforce their trade regulations and taxes. When pushed in this way, the King’s Ministers had to choose between military repression or legal accommodation and concession; they chose the former and the Revolution came.
So, a person concerned with liberty might say, this is all well and good for the importance of jury trials, but why the compulsion? Doesn’t issuing a writ to summon a jury violate a person’s individual rights to his own body? These are important questions because they are indicative of a fundamental misconception of what a jury is exactly and what is going on when a court issues a writ to summon a jury. For the clearest and best exposition of precisely what is going on when a jury trial occurs one must turn to William Blackstone, the greatest 18th century English legal commentator and the primary source for all American legal training for the several generations from 1770 through the antebellum period. Before delving into Blackstone’s explanation of the jury trial and why a summons had developed to impanel the jury, let us indulge in a digression to review some fundamental points about the legal system.
When a crime is committed, the legal system swings into operation to investigate the alleged crime, collect evidence, issue an indictment against the supposed criminal, arrest said person, and then subject the evidence to a trial. In a free society, the defendant is presumed innocent until a full hearing is given—in public (Star Chamber was never public, for instance)—to all the relevant evidence, and the defense has a chance to confront the prosecution’s witnesses in open court. At the beginning of the trial, the burden of proof is—logically and in conformity to justice—on the side asserting something; that is, the prosecution. It can only shift once the prosecution presents what appears to be a credible case that establishes that the accused committed the alleged crime. (Not all free societies have had trial by jury, but since ours does, the following explication relates to a society which subjects facts in trial to the judgment of a jury.)
The court has, at least, the following officers and people in it during a trial: 1) the Judge(s), appointed by the local, state, or national executive—possibly confirmed by a portion or the whole of a corresponding legislature. They can also be appointed by a special council or committee designated for selecting Judges (as in the state of New York), or in some cases directly elected by the local population; 2) the Prosecutor, another public official appointed or elected depending on the jurisdiction; 3) the Defendant, as trials in absentia are highly unusual and occur only when the accused flees to (or is already in) an outside jurisdiction from which extradition is not possible; 4) the Jury, made up of impartial people unfamiliar with the particulars of the case and unknown to the defendant, the prosecutor, and the judge, who are selected from a larger pool of people after each side of the case sifts through the candidates and eliminates those it suspects of partialities in some direction or another; and 5) some manner of recorder, traditionally a stenographer, but today often accompanied, or even replaced, by voice and video recording equipment. If we imagine our governments as full of checks and balances—executive veto to check legislative encroachment, judicial veto of unconstitutional laws, etc.—we need to remember that every individual court and trial is also a web of checks and balances to assure justice for both the victims of crimes and the accused perpetrators (since justice is not served by convicting a non-criminal while the real villain roams free).
The Judge, as the impartial expositor of law and referee of procedure and evidence, is clearly the most important single individual in the courtroom, but his role is procedural. He facilitates the scheduling of the trial, the impaneling of the jury, rules on which evidence is allowed and which is not, and matters of this and various other natures. He is the check on abuses by both the prosecution and the defense and he attempts to curb potential abuses by the Jury through the answering of questions concerning the law and the issuance of instructions on the proper manner of evaluating evidence, deliberating, and what facts need to be affirmed for conviction(s) to occur.
The Prosecutor’s main function is to marshal the evidence against the defendant in order to attain a just conviction in accordance with the law. He must check the defense if and when they attempt to blur the issues or confuse the jurors about the facts of his case. The defendant and/or his attorney must, of course, dispute the Prosecution’s case, evidence, and witnesses wherever appropriate. Even if the defendant is guilty, if a trial is sought by the defendant, then the Prosecutor must be forced to prove his case. The recorder, of course, is meant to keep a full and accurate record of the proceedings, for other lawyers and judges to review in order to facilitate appeals, but more importantly to help ensure as uniform a standard of justice across jurisdictions governed by the same laws as possible.
Finally, the jurors. Their primary purpose is to consider the evidence offered by the Prosecutor and the Defense and make a judgment, according to law, about whether the accused is guilty or not of the alleged crime(s). But their duty is as much to the law as anyone else in the courtroom. A jury can and will balk at confirming unjust prosecutions for which the evidence is insufficient for a reasonable conviction. But beyond that, if the public officials—the Judge and Prosecutor—have conducted a capricious and arbitrary trial, juries can often rebuke them in any number of ways. English and American jurisprudence demand unanimity from juries for a conviction. This is a high burden for the prosecution—to get twelve essentially random people to agree to strip a fellow citizen of his rights and property—as well it should be, when one considers how awful it would be for an innocent person to be convicted of a crime. A jury that cannot agree on conviction or acquittal will hang and a mistrial will occur. This is important as an institutional check on weak cases, abuses of prosecutorial power, and unjust laws. A lone juror can hang a jury and cause a mistrial on almost any grounds—though he cannot legally do so as a result of a bribe for instance—and this is also an essential check in cases of mistaken majorities. In terms of its character, a jury must be the following: 1) from approximately the region or district where the crime occurred unless impossible because of the nature of the case—say a mass crime, like a riot, taints the jury pool, or a sensational and well-publicized case prejudices everyone against one side or the other. This is done for speed and expense as much as holding to the idea that one should be tried as much by one’s own peers as possible; 2) impartial—they must not know the principals as much as possible or have firm prejudices about the facts of the case—in John Marshall’s paraphrase of Blackstone, the jurors “ought to be superior to every exception;” and 3) they must be random and not appointed until needed—this is for the end of preventing any attempt to corrupt the jury by making its identity unknown until the last possible moment (the same idea undergirds much of the thinking behind the Presidential electoral college)—and furthermore this is meant to make sure no one citizen is called to sit on a jury anymore than any other citizen. All have an equal interest in the fair conduct of trials and proper application of law—therefore all have an equal opportunity to sit on a jury. Selecting yourself for a particular case or jury betrays an interest in the eyes of the law for the outcome—the goal of the law is to truly get an indifferent jury unprejudiced as far as the particulars of the case are concerned: “They ought to stand perfectly indifferent between the parties,” were Marshall’s exact words.
The honest application of law and the conduct of fair trials are both absolutely essential to a free society and every single citizen has a vital and overwhelming interest in them. An impartial and just criminal justice system is one of the very few paramount reasons we have a government at all. John Locke said that “The great and chief end ... of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property,” and Blackstone tied this end to his discussion of the jury system for the English citizen: “his own property, his liberty, and his life, depend upon maintaining, in it’s legal force, the constitutional trial by jury.” John Adams echoed this in 1771: “In the Administration of Justice too, the People have an important Share, Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.” Could juries err? Yes of course, but unlike corrupt or erroneous jurists, said James Wilson: “the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot be systematical.” Their errors, though certainly not as prevalent as an unchecked Star Chamber that stacked the deck for unjust laws, unjust prosecutions and unfair trials, would be isolated to particular cases and would have no effect outside of particular courtrooms. The price, steep as it was and is, is worth it given the disadvantages and the steeper prices of the alternatives.
So what about issuing a judicial writ to wrangle this jury into existence? How do we justify that? The history of the jury is interesting in this regard. In ancient Athens, for instance, the trial system essentially consisted of an accuser (who acted as prosecutor) charging a defendant before the assembly (the accused acted as his own lawyer, though often he hired a speech writer to help him prepare his remarks). The assembly—usually upwards of 500 citizens for trials—listened to these arguments and then voted by simple majority for who was correct. If found guilty, the litigants suggested the proper penalties and then the assembly voted again—the punishment which won a majority was carried out almost immediately. When the Normans conquered England in 1066, they brought the institution of trial by battle with them—which subjected the dispensing of justice to armed combat in cases involving no conclusive independent evidence. Whoever won the court-sanctioned duel was thought to have triumphed by the will of God as a sign of his favor for the just. This system was unable to supplant the far more fundamentally democratic traditions of the feudal Anglo-Saxons, in which lay the forerunners of not only Parliament, but also trial by jury—almost certainly a holdover from the Roman era. In England, the jury trial was not automatic until after the constitutionally transformative 17th century had come to an end. Before that—and in some cases, even afterwards—it had to be requested. This was done in informative language—one asked to be judged by “the country.” That is, anyone brought before the bar could ask that the facts the court proposed to convict them with be adjudged by twelve of their neighbors. A sheriff was then dispatched to appoint a jury to meet at the courthouse on an appointed day, with all the relevant witnesses, the judge, the defendant and anyone else who wanted to attend. These observers, or talesmen, could be called upon if the jury pool proved inadequate to seat twelve qualified jurors. Even at the earliest stages there were already procedures to dismiss individual jurors or whole juries for fear that they were biased or that the Sheriff sent to gather them had picked a corrupt group on purpose for one reason or another.
According to Blackstone, the early jury system was voluntary. The Sheriff simply told people to come by on a certain day and hoped that they did so. “This jury is not summoned, and therefore, not appearing at the day, must unavoidably make default,” says Blackstone, “For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum.” If the government is instituted to protect property and to protect the individual rights of citizens—and also creating a judicial system of checks and balances that presumes the innocence of the accused, guarantees them a speedy trial with a chance to subpoena witnesses and evidence, and also a chance to have “the country” hear and judge it all—then it simply makes no sense to wait around for word of the trial to spread and volunteers to show up. Beyond that, it violates the principles outlined above, namely the principle of randomness and equality of opportunity to sit on a jury. Blackstone tells us that the old principle of jury selection had been de vicineto—from the particular neighborhood—but just as with a jury system of self-selection the authorities found “that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; ... the jury being now only to come de corpore comitatus, from the body of the county at large.” Clearly present during the evolution of the jury has been a great concern with the impartiality of jurors—and great lengths are gone to in order to assure this for the accused (who in theory is always an innocent man until the moment a verdict is pronounced in open court) and for the rights of everyone else in the society.
The unwritten constitution of Great Britain and the written constitutions of the states of, and of, the United States presume that all citizens are, in fact, latent jurors. A jury was nothing more, and certainly nothing less, than, in the words of Alexis de Tocqueville, “a certain number of citizens chosen randomly and entrusted temporarily with the right to judge.” The best means of impaneling a jury has taken the form, over the last few centuries, of calling a random assortment of people to the courthouse to whittle them down to a twelve citizen jury. Because of the sensitivity to the temporary inconvenience of sitting on a jury—though the interest and benefits of the jury system as a whole trump any possible narrow transient interest that can be at stake privately in any rational hierarchy of values (which cannot exist outside the context of the free society the jury as an institution is meant to buttress)—a number of protections are included. For instance, one cannot and should not be fired from their employment due to absence in what is essentially a sudden and temporary high public office. In addition, all jurors are paid some amount of money as remuneration for their services, and there are a number of exceptions in place for various circumstances and situations to exempt citizens who cannot otherwise sit on a jury.
That every single citizen of the United States is a latent public functionary (to give the most unglamorous possible name to the high responsibility of being a juror) perhaps comes as a surprise to some Americans, but that is a function of the poor nature of civic education in the Republic today. Other republics attempt to maintain a free and fair justice system without trials by juries, but not ours. Now, do the juries have to be staffed by the issuance of writs? Not necessarily. Any state is free to experiment with alternative means of assuring free, fair, and speedy jury trials with impartial jurors. My principle concern with any attempt at such a scheme would be the loss of the equality of opportunity principle that has always marked juries in Great Britain and the United States. Since a jury trial is, at base, having the facts of a case judged by “the country,” that means that the whole country is to be eligible to hear them until otherwise disqualified in any particular case. Any system of self-selection will invariably find itself the victim of free-riding unless the compensatory aspect is raised to such heights that people are competing night and day to get on juries. Of course, the pitfalls of that are subjects for another day. Also, some citizens would remain oblivious to the operation of the courts and the administration of justice regardless of financial incentive—again, the jury system is meant to be the equal inheritance of all citizens. It was once considered the greatest of privileges and rights—the very essence of freedom—to be able to partake in the justice system in such an important way; or, conversely, that at the moment of the most extreme peril, you could rely on your fellows to pass judgment on you, and not an insulated group of barristers or an obliviously powerful judge. If we have come to the moment in time where that is no longer the case, then the American Republic deserves accolades for having eliminated the dangers of reposing all judgment power in the hands of judges or tribunals. The jury as an institution is truly meant to be a democratic check on the pretensions of usurping aristocratic lawyers and jurists. As Blackstone—no friend of democracy—said: “Every new tribunal, erected for the decision of facts, without the intervention of a jury, ... is a step towards establishing aristocracy, the most oppressive of absolute governments.”
PART II
It should be quite obvious now that my principle objections to Dr. Peikoff’s answer relate to his agnosticism concerning the propriety and value of trials by jury. But as I have already dealt with the value of juries in Part I, I will move on to his perfunctory nod towards what consent means in a self-governed republic with a constitution designed to protect freedom and individual rights. “If you sign up...for a government you volunteer, you know, to help set up and support—you want protection, you pay the cost—then implicit in that, is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation.” Putting aside Dr. Hsieh’s reaction to this very mild call for civic mindedness for a moment, Dr. Peikoff ought to have expanded on two points implicit in his statement here. First, the idea of consent to the form of government in the jurisdiction one chooses to live in; and second, the notion that as a citizen in this or any jurisdiction, you might have to do something on occasion to make sure the Republic functions and survives. If Objectivism becomes a philosophy that promotes the bizarrely quixotic idea—and let me be clear that I do not accuse Dr. Peikoff or Dr. Hsieh of this—that one should, ever, try to exist in a free society without doing anything, ever, to support its continued existence then it will become as doomed as anarchism or the dead-end paranoia of Ron Paul and Lyndon LaRouche—all leading as surely to tyranny as arsenic to the grave.
Liberal political theory rests on the idea of consent. Not consent to tyranny. You cannot properly consent to a tyrannical government—because it ceases to be a government properly so called, but a tyranny, or a government without law (“Where-ever Law ends, Tyranny begins,” said Locke). This is different from the doctrine of Social Contract in a number of important ways, but most importantly because the Social Contract, as expounded by its most prolific champion, Rousseau, called for the primacy of the “General Will” above all else. Even law meant nothing because whatever the “General Will” decided was, inherently, the law. People individually surrendered to the “General Will” all that was not reserved for them privately by the consensus. Rousseau phrased it famously in many different ways but here is a typical example: “We can see from this that the sovereign power, wholly absolute, wholly sacred, and wholly inviolable as it is, does not and cannot exceed the limits of the general agreements, and that every man can fully dispose of whatever has been left to him of his goods and liberty through these agreements, so that the sovereign never has a right to burden one subject more than another, because when the matter becomes a private one, its power is no longer competent.” This is obviously quite different from the idea that men have certain unalienable rights derived from nature, and that to protect these rights they form a government to adjudicate disputes, punish crimes, and repel foreign aggression. Consent is easy in the case of the original founders—they obviously consented as they made their own government to protect their own rights, including the notion that as citizens they were all jurors in waiting to aid the judicial branches of their governments. All future immigrants also are obviously clearly identified as consenting members of the polity. As Diderot put it: “There is no individual who, discontented with the form of his country’s government, cannot go elsewhere in search of a better.” Obviously North Korea did not exist at the end of the eighteenth century, but the point is still generally valid.
But what of generations unborn? Jefferson puzzled over this endlessly, positing to his friend Madison and others the notion that every twenty years or so society ought to undergo a revolution, wipe away all the past legal arrangements, and start over. Madison balked. Jefferson had forgotten his Locke. The key to consent for the unborn is that, as children, they are obviously “by the Law of right Reason” born “a Subject of no Country or Government. He is under his Fathers Tuition and Authority, till he come to Age of Discretion; and then he is a Free-man, at liberty what Government he will put himself under; what Body Politick he will unite himself to.” Now this did not mean that any Government anywhere was ever entitled to treat any citizens, foreign born or domestic, as if they were without rights. Remember that the whole essence of Locke’s political theory is that rights exist in that state of nature, before government, and that men create government to protect those rights. But all countries have different idiosyncrasies and institutions that may or may not rub people the wrong way. Locke—and no one else among Enlightenment thinkers I have been able to find—did not highlight sitting on juries as such a “push” institution, but certainly it could be for some people, at least in theory (though I have never come across a primary document of a person who emigrated from the United States or Great Britain in order to flee the onerous strain of possibly being called to sit on a jury, I do not discount the possibility of finding one). So the process of consent might happen all at once, as during the Revolution and constitution-making period of the 1780s when Loyalists migrated away from the Republic, or, far more commonly during the history of the world: “the Consent of Free-men, born under Government, which only makes them Members of it, being given separately in their turns, as each comes to be of Age, and not in a multitude together; People take no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally Subjects as they are Men.” There is no Social Contract, because no one ever meets with everyone else to sign anything—particularly not a blank check to be subsumed by an amorphous “General Will.” But, deciding to reside under some Constituted legal authority as opposed to another—this occurs within the United States more often than people leaving the country altogether, for the moment—is the only real form of consent one can give, outside a period of Constitution making, to the form of their government. After that, it takes active participation to alter it—if it can be altered at all, depending on the government. But, as before, no amount of consent to the form of a government can cede to that government any sort of right to usurp the unalienable rights of individuals. And it was Locke who maintained, in the wake of the Glorious Revolution he did much to foment, that any Government that became destructive of those specific ends that justified its existence lost all its consensual authority and ought to be destroyed and replaced.
In a free society—no one can be shanghaied into the armed forces in peace time or pillaged by the government in the form of taxation. One’s life is an unalienable right that the state cannot be ceded the right to dispose of—except through the delimited context of obscene and terrible criminal behavior defined by law and adjudicated through due process of law—and the government can have no pretension to making itself party to private economic transactions between individuals for the purpose of skimming some off the top. But the practical issue of how to go about funding the state then becomes a matter of some concern. Voluntary contributions are the ideal, of course, but one worries about free-riding. User fees are a possibility, but then government begins to resemble the “insurance companies” proffered by anarcho-capitalists, particularly because maintaining ultimate jurisdiction over a territory where a number of people are not contributing citizens creates a series of bizarre and unprecedented issues. For instance, if a person who contributes nothing is sued by someone who does contribute, is the former ipso facto the loser no matter the factual circumstances of the case? Or is the suit impossible until the former contributes? If a contributor murders a non-contributor, do the courts respond? These are just some of the plethora of issues that needs to be solved in a user fee system. Obviously, government is vital to a free society and people should want to contribute to its upkeep. Perhaps a way of “encouraging” volunteerism as far as the government’s maintenance goes would be a non-coercive campaign of “shaming.” For instance, if everyone contributed last year and you did not, that fact could be advertised so that your fellows might ask you about it. This is highly speculative and, of course, subject to all manner of objections. Enough on this, the point is simply that Objectivism, while concerned with the protection of all individuals against the initiation of force—as when they are drafted into the armed forces or have their paychecks pilfered—does not encourage, and should never encourage, the notion that in a purely voluntary system the non-contributing citizen is to be seen as anything approaching ideal. He is not acting beyond his rights, but if everyone followed his example the state would collapse and no one’s rights would be respected or protected at all. Can humans—over a wide swathe of territory and in political communities numbering in the hundreds of millions—achieve that sort of unprecedented and unrecorded self-discipline combined with rational thought, valuation, and action? Perhaps not if a compensated selection of days to preserve the free and fair criminal justice system is considered an unjustifiable tyrannical affront, but for now the jury is still out.
This brings us to Dr. Hsieh’s rejoinder. I no longer think it is necessary to rehash the conceptual error that occurred in relation to juries and the equivocation of sitting on them to being drafted or being robbed. But I think one particular portion of her argument deserves particular attention. In Dr. Hsieh’s argument in favor of equating juries, the draft, and taxes, she says:
And the government here is going to say, “But, look, we can’t function without people to serve on juries!” Well, yeah, that’s true, but that doesn’t justify using compulsion. The government also can’t function without money to pay rent on its courthouses, but that doesn’t justify taking that money by force, via compulsory taxation. The government can’t function without soldiers to fight if we’re being invaded or there’s a justified war, but that doesn’t justify the draft. The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.
Furthermore she states that should this purely voluntary government come into being and then cannot muster the funds or armies (or juries) needed to defend the rights of its citizens, it deserves what it gets essentially. This is good as a philosophical argument, in that it is an interesting thought and requires analysis and answer, but it more resembles a floating abstraction that anything rooted in reality. The best government that never existed in the history of the world—it relies on voluntary contributions, a volunteer jury system and a volunteer army during an invasion(!)—deserves destruction if it fails? And it does not deserve it because the ideas which motivated its policies did not work in a reality dominated by rapacious neighbors, but because the people in it were not good enough to “deserve” their freedom? How, for instance, would a serious student of history, individual rights, law, and government like James Madison have reconciled the notion that men, who could not make an unprecedented government work in a world full of bandits, deserved their demise, after writing something like this?
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Aside from resembling every encomium ever written for Poland after a dismemberment (in the eighteenth century, not that which occurred in 1939), Dr. Hsieh’s manner of reasoning on this matter resembles quite a number of parallels, but let’s remain strictly in the American experience.
The early Republic was infested with pessimistic doomsayers—Samuel Adams and John Randolph among others—ready to proclaim that the people had proven themselves unworthy of republican government. Why? Because they did not seem particularly concerned about the well-being of the polity or their own civic roles, even in the midst of the greatest emergencies. During the Revolution they often did not join the Continental Army, they often traded scarce war supplies with the British because they paid in gold and not inflationary Continental paper, and when there was not a British Army around they seemed curiously unconcerned about paying their quota to the general war fund of Congress. During the War of 1812, large salaries were unable to fill out the authorized strength of the army, State governments threw up roadblocks to calling out the militia in the Federal service and then again when the government wanted to use those federalized soldiers for offensive operations over the border. People refused to lend the government money to finance the war not because they disputed that Britain had violated the rights of Americans, but because they wished to see President Madison and his Republican party fail. Fortunately the republic did not collapse during either of these crises, but they tell us something important—namely that even the best of populations in the history of the world during legitimate existential crises behaved in ways that were clearly counter-productive to success (and success here meant the creation and preservation of the world’s only rights respecting republic). Had a calamity occurred, would we look back and say these people “deserved” to be oppressed by British armies? I certainly hope not.
We do not need to carry around an overwhelmingly tragic historical sense, but we do need to be a bit more aware of just how rare even our compromised level of self-government is and has been. The quote at the beginning of this essay was written by John Milton just as the restoration of the Stuart Monarchy was about to occur in England. His desperate musing about the use of force to keep the Republic and make people live in liberty was undoubtedly unwise, but he was watching his countrymen clamor for the return of the son of the man they had beheaded a decade earlier to be their King. Did John Milton “deserve” to watch the restoration of a debauched admirer of absolutism to a throne he fought to eliminate from the world? Cato and Cicero did not “deserve” their fates anymore than the Greeks who did not listen to Demosthenes until it was too late to thwart Philip. Of course, their failure was partially their fault—but they no more deserved to be conquered and enslaved than a person who leaves their door unlocked deserves to be robbed and murdered.
While we should do everything to encourage and create a society than banishes all the initiation of force that we can, we cannot pretend for a moment, that that goal will produce necessarily the results we expect. This is not meant as a discouragement to trying, but simply a call to be wary—not fatalistic, just abundantly cautious—of human nature at home, but even more particularly abroad. Why? Because, while man can choose reason, life, and productiveness, history suggests that he has more often chosen the irrational, death, and sloth. Why this is the case is a fascinating and fundamentally important historical and philosophical issue, but not one I plan to tackle here.
PART III
Now, finally, what did Ayn Rand say about juries? As far as I have been able to tell, very little in her non-fiction writing dealt with the subject of juries. But, her fiction is replete with courtrooms and juries. Of course, her play Night of January 16th features an all volunteer jury of audience members that could choose the ending of the play depending upon their verdict. Whether one could interpret the audience participation as a commentary on being summoned to sit on a jury is an open question, but not one I have been able to discover any commentary from Ayn Rand to answer. Also, Dr. Hsieh does not cite this work as evidence to bolster Objectivism’s endorsement of her views on juries. In fact, neither Dr. Peikoff nor Dr. Hsieh offers up any evidence from Ayn Rand to endorse their positions—which is an admirable refusal to indulge in competing appeals to authority. But since Objectivism is the philosophical system created and propounded by Ayn Rand I think it might have been appropriate for Dr. Hsieh, for instance, to acknowledge that if the draft and taxes are the same as the writ issued to summon a jury, Ayn Rand failed to ever make that comparison so far as I am aware. This is remarkable for two reasons. The first is that she wrote about justice, the draft, and taxes quite a lot—not to the mention the issue of the initiation of force, with numerous illustrative examples. Yet, so far as I am aware, she was silent on the jury summons. So maybe that was just an oversight, or she was simply going after the biggest offenders first, saving the jury summons for after the grand defeat of the draft (which she lived to see happen) and taxes. Perhaps, but there are passages and scenes in The Fountainhead and Atlas Shrugged that make me think that she knew why the jury system existed and the reasons—laid out in Part I—for why juries were summoned.
First, in The Fountainhead, the novel climaxes in its final part with the trial of Howard Roark for blowing up his own Apartment complex after it had been destroyed (artistically and conceptually) without his consent and in violation of his agreement to design it—the scene includes a stirring closing argument from Roark to the jury about to sit in judgment over his fate. Keep in mind, there is no question of Roark’s literal guilt—he admits to blowing up his own creation quite freely and he is caught red-handed at the scene of the crime. But the key to his acquittal is the jury (putting the lie to Dr. Hsieh’s theory that these brutally coerced juries cannot be forced to think—which may or may not be true, but I do not think the writings of Ayn Rand could ever be used to bolster such a position as it relates to the political and judicial reality of the jury box):
Twelve men sat in the jury box. They listened, their faces attentive and emotionless. People had whispered that it was a tough-looking jury. There were two executives of industrial concerns, two engineers, a mathematician, a truck driver, a bricklayer, an electrician, a gardener and three factory workers. The impaneling of the jury had taken some time. Roark had challenged many talesmen. He had picked these twelve. The prosecutor had agreed, telling himself that this was what happened when an amateur undertook to handle his own defense; a lawyer would have chosen the gentlest types, those most likely to respond to an appeal for mercy; Roark had chosen the hardest faces.
Roark selected a jury of his peers—challenging many of the talesmen (Rand’s use of this word is a tipoff that she was fully versed in the technical details of juries—including the fact that they were summoned by writ)—and they, as thinking men, acquitted him in short order. This is, of course, a romantic view of the jury—not unlike that of similar artistic dramatizations of juries at the time, i.e. the film Twelve Angry Men—but well within the realm of possibility. A man who clearly breaks the law, but with a just and moral cause, often has been saved by a jury—particularly in American fiction. Without a jury, Howard Roark would have been far more likely to end the novel in prison—instead of triumphantly at the top of his masterpiece skyscraper.
In Atlas Shrugged, the situation is markedly different. Instead of being set in contemporary 1930s/1940s America, Atlas takes place in a future tantalizingly close to but beyond the 1950s. When Hank Rearden is brought before a court for hoarding his own Rearden Metal, Rand creates a dichotomy between the ordinary people who watch the proceedings in the courtroom and the judges. There is no jury this time, because, as Rand says:
According to the procedure established by directives, cases of this kind were not tried by a jury, but by a panel of three judges appointed by the Bureau of Economic Planning and National Resources; the procedure, the directives had stated, was to be informal and democratic. The judge’s bench had been removed from the old Philadelphia courtroom for this occasion, and replaced by a table on a wooden platform; it gave the room at atmosphere suggesting the kind of meeting where a presiding body puts something over on a mentally retarded membership.
So, clearly, Rand was fully versed in, and in agreement with, the notion that jury trials are significant indicators of the rule of law and a free society. Their suspension is like the proverbial fire bell ringing in the night—a clear warning of impending danger. She illustrates this by having her villains eliminate Rearden’s ability to be tried before his peers. And we learn why as the scene goes on, as Rearden’s refusal to be stripped of his property and his right to his own life turns the watching crowd into his desperate supporters—much to his own surprise. These are the people that would have been impaneled on a jury had it not been suspended. In the end, Rearden is fined by the judges, but the fine is held in abeyance. The crowd cheers him, laughs at the feckless judges, and leaves Rearden puzzled that these same people are the ones driving the world off a cliff, unknowingly perhaps. His confusion extends beyond his temporary reprieve.
Should we be puzzled though that Ayn Rand did not write about juries in her non-fiction writing? As should be clear by now, my answer is no. Even the Enlightenment thinkers and founding fathers most concerned with individual rights, restricting government force to protect those rights, and juries as an institution, rarely took much time to write about them. By 1776, juries were such an overwhelmingly revered institution under assault by a capricious British government that no one thought it was necessary to pen long encomiums for their defense. By 1787, the alarm that the new Constitution might abolish juries with its silence caused many to vote against ratification and demand a bill of rights. That Bill of Rights would devote three amendments to jury trial—and not one of them for a moment viewed the eventual summons to sit in the jury box as an imposition or an example of tyrannical government. The summons was a mechanism to ensure fairness and the principle of equality of opportunity to sit on juries—as well as a speedy trial for the accused—rather than a judicial press gang to staff juries. The very notion that anyone could ever possibly call a jury summons a species of tyranny would have flipped their entire world on its head—where a long valued and fought for bulwark of liberty was suddenly something they should eradicate. They simply could never have thought of it in that manner—thus we find no objections to it in the records (as least none that I have ever seen, and I have been scouring them in preparation for this essay), nor do we find them in any of the writings of Ayn Rand that I am familiar with.
As with much else about American government and political society, it was the discerning eye and sharp pen of Alexis de Tocqueville that finally commented extensively on juries. As a Frenchman, he noticed most things that Americans were long accustomed to and felt no need to notice or defend systematically. He immediately saw that the jury was a premier political institution of the American Republic—made up of all the voting citizens across the country and thus the one institution most citizens were likely to come into direct contact with. And unlike the others, the jury box was their only way to directly participate in a vital role of the government (it remains so to this day). Even more than the judicial qualities—which as a French nobleman, he could not bring himself to admire fully—he admired the political aspects of the American jury. “They teach men the practice of equity. Each man, in judging his neighbor, believes he may be judged in his turn. That is especially true of juries in civil cases: almost no one fears that one day he will be the subject of a criminal hearing but everyone might suffer a lawsuit.” Tocqueville added, “Juries teach all men not to shirk responsibility for their own actions; without that manly attitude no political virtue can exist.” The courtroom and the jury box were classrooms where citizens learned their rights, associated with brilliant legal minds, and attained an understanding of law. Despite his Gallic prejudices, Tocqueville knew as well as Ayn Rand that: “All sovereigns who have wished to draw the sources of their power from themselves and to control society instead of letting it control them, have destroyed or weakened the jury system. The Tudors used to imprison jurors who decided not to convict and Napoleon had them chosen by his agents.” The jury box and the courtroom are quintessential American settings and Ayn Rand exalted in their glorious potentialities in more ways than most great American writers. I do not think that was an accident. Nor do I think her “failure” to compare a jury summons to the draft and taxation was an accident either.
CONCLUSION
A jury is a direct democratic check on the judicial process that, over a number of centuries, has evolved from a voluntary group of peers asked to attend court on a particular day selected among the literal neighbors of the accused to a random assortment of citizens summoned on the day of trial from the wider county or district in which an alleged crime or grievance occurred. All citizens in a free country that have established their constitution to include this check within the judicial branch are latent jurors. When one seeks citizenship in such a polity, one knows that this is the manner in which rights are protected “on the ground” during the enforcement of law. There is nothing inherently wrong with establishing a polity where all citizens—by fact of citizenship—play some direct role in decision making and governance. This is what the jury system is—the direct involvement of the citizenry in the dispensing of justice. A jury is, literally, the people embodied for a temporary and limited—though fundamentally important—purpose. That purpose is primarily to judge facts in a criminal or civil case and, secondarily, to provide oversight and protection for fellow citizens in the dock on weak evidence and, more critically, they provide a check against abuses of power on the part of their appointed judicial officers. In order to aim as closely as possible to jurors that are “above all exception” it has been found necessary to abandon a principle of self-selection and institute a policy of random summons. Protections are offered for this temporary elevation to active from latent juror—lenience and dismissal for those prevented from physically being a part of the jury for a variety of reasons, pay for hours spent on the job, and protection from recrimination from other citizens due to one’s status on a jury.
Let there be no confusion. A juror is as important a public functionary as any officer created by our Constitutions. Refusing to assume the active role of the juror is tantamount to a President who refuses to enforce laws, or a judge who is perpetually drunk (this has occurred). But what should be the penalty for such a dereliction? In this case, nothing as formidable as the penalties that await those more exalted officers is necessary or warranted. While jurors are fundamentally important to the preservation of individual rights in our system, they are also quite easy to replace. Citizens who refuse to come to court or, when they come to court, refuse to sit on a jury, should be given the equivalent of a legal slap on the wrist and dismissed—perhaps with an admonishment from the judge if nothing else. While they have failed to live up to a very simple responsibility of self-government—their fellows ought never to be vindictive to the point of true injury. The summons is a tool to ensure the system works fairly, properly, quickly and cheaply above all else—it is not meant to be a bludgeon to press juries into the dock. If it ever actually became that—and let us be clear, it has never been that—then its days would be appropriately numbered. But for more than four hundred years, through usurpations, wars, legal assaults and all manner of trials—real and fictional—the jury system and the judicial writs used to call people to activity, have been among the principal pillars that have preserved liberty in happy times as well as dark.
I will end with one more quote from Tocqueville, who as a foreigner living in a country full of admirers of juries though very few actual attempts to have them, commented on the peculiar history of the institution from the standpoint of a political naturalist:
When the English adopted the jury system, they were a semi-barbarian nation; since then, they have turned into one of the most enlightened nations on earth and their attachment to the jury system has appeared to grow along with their enlightenment. They have left their own country, some to found colonies, others independent states. The main body of the nation has retained a king; several groups of settlers have founded powerful republics; but, everywhere, the English have uniformly advocated the jury system. They set it up everywhere or have hastened to re-establish it. A judicial institution which has thus commanded the approval of a great nation over centuries and has been copied enthusiastically in every stage of civilization, in every climate and under every form of government, cannot possibly be contrary to the spirit of justice.
While his ardor for the imprimatur of this evidence is overstated, I think he was, nonetheless, perfectly correct.
APPENDIX
Transcript of Peikoff Answer, 19 July 2010:
“Should jury duty be compulsory as it is in the U.S. today?”
Answer: “My answer would be: I don’t see anything wrong that, because if you sign up—vol—for a government you volunteer, you know, to help set up and support—you want the protection, you pay the cost—then implicit in that, is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation. And I think the two obvious things that are required is—people to serve as a jury, unless we go to a completely judge centered system (and I don’t have a view on that, I’m not so keen on juries, but I don’t know enough to take a view) and the other is the right of subpoena. These are inherent in justice—for the government to collect the evidence and (if it’s going to be a jury) have someone to judge it. But, now don’t extend this to say “Well, then people don’t have enough to eat, if the government doesn’t have enough to eat, we can’t have function, we should sign up for welfare....” that does not follow. We’re talking about directly in the performance of the function [of the government], not in any external factor. So, I would say if the jury system is the means of deciding and you want that society paying voluntarily for it, then that implies that you’re going to contribute. Who knows, they might have a two tier system, people who are running a jury system at a discount, I don’t know. I mean, the way we stand today, it’s a question of will the United States survive for a little while. So the question of how would juries operate in utopia? ha! I just hope people listening to me live long enough for it to come up.”
Transcript of Diana Hsieh’s Response to the Same Question and to Dr. Peikoff’s Response, 19 May 2011
“So, first of all, I want to give some background context here. In a July 9, 2010 podcast, Dr. Leonard Peikoff was asked and answered a question about compulsory jury duty—about whether that was legitimate in a free society. Now his answer—which really shocked me, I have to say—was that there was nothing, nothing wrong with that. And he said, this is a quote from the actual podcast: “if you sign up for a government, if you volunteer to help set up and support it, you want the protection, you pay the cost, then implicit in that is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation. The two obvious things that are required are people serve as a jury and the other is the right of a subpoena.” And he actually went on to talk about how he’s skeptical of jury trials, but if jury trials are the right thing, then yeah people would be obliged and could be compelled to serve on them. Now my view is the complete, complete opposite. I think compulsory jury duty is just as much a violation of individual rights as is compulsory taxation or the draft. I think it’s morally wrong and I think that it’s impractical too.
So first I want to look at how this violates rights. Basically when the government says “By the way, Greg, you have to serve on a jury next week,” and that’s what compelling that means, and you have no choice about how long the jury’s going to—or how long you’re going to be serving on this jury—or anything like that, it’s just you’re being told, you’re being compelled, “you have to go serve on this jury.” You are being forced to abandon your plans, your goals, your projects, and do their bidding. And the government here is going to say, “But, look, we can’t function without people to serve on juries!” Well, yeah, that’s true, but that doesn’t justify using compulsion. The government also can’t function without money to pay rent on its courthouses, but that doesn’t justify taking that money by force, via compulsory taxation. The government can’t function without soldiers to fight if we’re being invaded or there’s a justified war, but that doesn’t justify the draft. The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.
So the question is, so basically I think that juries, like taxation, like military service, has to be voluntary—people have to consent to being on a jury, they have to volunteer. Well, so the question is “But, what happens if people in a free country are not willing to serve on juries?” Well, first of all, I simply don’t think that would actually happen. I do think people would, in fact, volunteer. People volunteer to be in the military—risking their lives for a pittance of pay—they’re gonna also volunteer to be on juries too. And I think that people would be willing to volunteer, particularly if they could pick the time—if they said “Hey look, I’ve got this week free, I would be willing to serve on a jury for these five days.” And I think the reason that people would be willing to do that is because it would in fact be an interesting experience and it would be something that would be informative and you would be contributing to something that’s very good—namely locking up of criminals and getting them out of the way and letting go of innocent people or otherwise resolving civil conflicts between people, this is an important thing and it’s something that people in a free society would wish to contribute to. Now I do think that if that, if that sort of “Hey look, you can get this interesting experience,” if that’s insufficient then I do think that people should be paid. Now I don’t think there should be professional juries because being a juror is not a skill—the whole point of a jury is to be judging matter of facts which an ordinary person is competent to do—so a professional jury sort of implies that you know something about the relevant law or whatnot which I don’t think is relevant here. I don’t think that’s required or even desirable. But what you might have is people who volunteer routinely—let’s say people who are retired or people who are, let’s say, in between careers or something like that, they might be willing and able to volunteer routinely.
So I think that first of all—that’s my first point is that you would in fact have people willing to serve on juries. But on the other had, so what happens if people, if enough people don’t—let’s say, you know, what actually happens? Well you know what happens? The criminals go free. Conflicts don’t get resolved. And if that’s not incentive enough for people to actually serve on a jury—that plus the pay and experience and so on—then I think a free country doesn’t deserve to stay free. And that’s exactly the same as with the military—if people are unwilling to defend their country by taking up arms against an invader then conquest is the result that those people deserve.
Now I do think here, by the way, that subpoenas are a very different kind of case. Subpoenas are not like jury duty, military service, and taxation. I think all those three things are the same, subpoenas are something different.
You do not want to place your life and your liberty in the hands of a person who is being compelled to serve on a jury. You want a person who is motivated by his own judgment, a person committed by his own judgment to be fair and objective. You don’t want a person who is motivated by this fear of punishment if they refuse to comply. That is absolutely not safe, that is just as perilous as putting yourself under the knife of a doctor who is being forced to operate on you.
Finally I do want to address one thing, because Leonard Peikoff claims that if you support the government then you might be compelled to serve on juries. So it seems like there’s a kind hypothetical—like only if you are supporting government, if you are somebody who is wanting to kind of participate in its protections and so on. But I still think that that hypothetical changes nothing because it’s still wrong to force people even if they are people who are supporting the government. In a free society, a person is not obliged to support his government in every possible way at any given moment. The government does not have a right to call on people who support the government to say “Ok, now you must serve.” The government basically can’t demand or compel that, anything, that a person to give anything or to do anything, without violating their rights. So I think that, let’s say if a person serves in the military, it might be perfectly right for them never ever ever to pay a dime in voluntary taxes, in voluntary contributions, because they have contributed, let’s say, 10 years of their life to national defense. I think that it would be perfectly legitimate to pay less in taxes when you are a poor student, or let’s say when you’re young parents or just if you’re you know you don’t have the money that you might have later on in life. If you’re busy with your work or your kids I think it would be perfectly legitimate to say “I’m not going to do jury duty for the next ten years, but maybe I’ll do it later when I have the time.” In other words, people need to be free in a free society to contribute to the government, to the maintenance of their protection, according to their own judgment in what fits the context of the circumstances of their life, not just because the government says “Ok, you, now, it’s your turn, get over here, sit in this jury box.” That is not right, that is not the way a free society would operate.
Ayn Rand, The Fountainhead, 1989 Easton Press Edition [originally published 1943]
Part Four, Chapter 18
“Twelve men sat in the jury box. They listened, their faces attentive and emotionless. People had whispered that it was a tough-looking jury. There were two executives of industrial concerns, two engineers, a mathematician, a truck driver, a bricklayer, an electrician, a gardener and three factory workers. The impaneling of the jury had taken some time. Roark had challenged many talesmen. He had picked these twelve. The prosecutor had agreed, telling himself that this was what happened when an amateur undertook to handle his own defense; a lawyer would have chosen the gentlest types, those most likely to respond to an appeal for mercy; Roark had chosen the hardest faces.” pg. 721
Ayn Rand, Atlas Shrugged, 2000 Easton Press Edition, Two Volumes [originally published 1959]
Part Two, Chapter 4 “The Sanction of the Victim”
“According to the procedure established by directives, cases of this kind were not tried by a jury, but by a panel of three judges appointed by the Bureau of Economic Planning and National Resources; the procedure, the directives had stated, was to be informal and democratic. The judge’s bench had been removed from the old Philadelphia courtroom for this occasion, and replaced by a table on a wooden platform; it gave the room at atmosphere suggesting the kind of meeting where a presiding body puts something over on a mentally retarded membership.” pg. 476
Ayn Rand, “The Nature of Government,” The Virtue of Selfishness
“If physical force is to be barred from social relationships, men need an institution charged with the task of protecting their rights under an objective code of rules.”
“This is the task of a government—of a proper government—its basic task, its only moral justification and the reason why men do need a government.”
Ayn Rand, “Antitrust: The Rule of Unreason,” The Objectivist Newsletter, Feb. 1962
“An objective law protects a country’s freedom; only a non-objective law can give a statist the chance he seeks: a chance to impose his arbitrary will—his policies, his decisions, his interpretations, his enforcement, his punishment or favor—on disarmed, defenseless victims.”
John Milton, The Readie and Easie Way to Establish a Free Commonwealth (1660)
“is it just or reasonable, that most voices against the main end of government should enslave the less number that would be free? More just it is doubtless, if it com to force, that a less number compell a greater to retain, which can be no wrong to them, thir libertie, then that a greater number for the pleasure of thir baseness, compell a less most injuriously to be thir fellow slaves.”
STAMP ACT CONGRESS, DECLARATION OF RIGHTS, 19 OCTOBER 1765
“7th. That trial by jury is the inherent and invaluable right of every British subject in these colonies.”
WILLIAM BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND (1768)
“In magna carta it is more than once insisted on as the principal bulwark of our liberties.”
“And this is a species of knowlege most absolutely necessary for every gentleman in the kingdom; as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects; as because his own property, his liberty, and his life, depend upon maintaining, in it’s legal force, the constitutional trial by jury.”
“This jury is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a write of habeas corpora juratorum, and in the king’s bench a distringas, commanding the sheriff to have their bodies, or to distrein them [i.e. to seize] by their lands and goods, that they may appear upon the day appointed.”
“If the sheriff by not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; ... [two alternates may eventually be named to choose the jury if other minor officials are also unable to perform the task] And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final.”
“Next, as to the time of their return: the panel is returned to the court upon the original venire, and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections, and relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas or habeas corpora) the cause is not like to be retarded through defect of jurors.”
“As the jurors appear, when called, they shall be sworn, unless challenged by either party.”
“For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed; and were supposed to know before-hand the characters of the parties and witnesses, and therefore the better knew what credit to give to the facts alleged in evidence. But this convenience was overballanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; ... the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood.”
“jurors must be omni exceptione majores.” [above all exceptions—i.e. they ought not to be challengeable based on relations with the parties, kinship, interest, etc.]
“We may here again observe, and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In it’s caution against all partiality and biass, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shewn of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty: that the select judges should be appointed by the praetor with the mutual consent of the parties.”
“Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But, next to positive proof, circumstantial evidence or the doctrine of presumptions must take place: for when the fact itself cannot be demonstrably evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily, or usually, attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved.”
“the trial by jury: a trial, which besides the other vast advantages which we have occasionally observed in it’s progress, is also as expeditious and cheap, as it is convenient, equitable, and certain;”
“the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.”
“only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.”
“The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spight of their own natural integrity, will have frequently an involuntary biass towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and new rule of action would be every day established in our courts. It is wisely therefore ordered, and the principles and axioms of law, which are general propositions, flowing from abstract reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them.”
“But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or more artfully by suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice.”
“twelve indifferent men, not appointed till the hour of trial;”
“This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.”
JOHN ADAMS, DRAFT OF AN ESSAY ON JURIES, 12 FEBRUARY 1771
“While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.”
“There is nothing to distinguish the Government of Great Britain, from that of France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws.”
“In the Administration of Justice too, the People have an important Share, Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.”
“As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavoring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes.”
“The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sleve of any mere Man.”
DECLARATION OF INDEPENDENCE (1776)
“For quartering large Bodies of Armed Troops among us:
For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: ...
For depriving us, in many Cases, of the Benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended Offences:”
FEDERAL FARMER, NO. 4, 12 OCTOBER 1787
“It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.”
A DEMOCRATIC FEDERALIST, 17 OCTOBER 1787
“but what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government against the weak and helpless citizen, and who will perhaps sit at the distance of many hundred miles from the place where the outrage was committed?—What refuge shall we then have to shelter us from the iron hand or arbitrary power?—O! my fellow citizens, think of this while it is yet time, and never consent to part with the glorious privilege of trial by jury, but with your lives.”
JAMES WILSON AT THE PENNSYLVANIA RATIFYING CONVENTION, 11 DECEMBER 1787
“and moreover, it is a cheap and expeditious manner of distributing justice. There is another advantage annexed to the trial by jury; the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot by systematical.”
JAMES IREDELL, “MARCUS,” ANSWERS TO GEORGE MASON’S OBJECTIONS TO THE CONSTITUTION, 1788
“We certainly shall be always sure of this guard at least upon any such act of folly or insanity in our representatives. They soon would be taught the consequences of sporting with the feelings of a free people.”
FEDERAL FARMER, NO. 16, 20 JANUARY 1788
“the jury trial is a solid uniform feature in a free government.”
ALEXANDER HAMILTON, FEDERALIST NO. 83, 28 MAY 1788
“But making every deduction for these considerations the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success it discourages attempts to seduce the integrity of either.”
U.S. CONSTITUTION
AMENDMENT V
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
AMENDMENT VI
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
AMENDMENT VII
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
THOMAS JEFFERSON TO THE ABBÉ ARNOUX, 19 JULY 1789
“We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it’s powers.”
“They are not qualified to JUDGE questions of law; but they are very capable of judging questions of fact. In the form of JURIES therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts.”
“It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people is all the three departments where that is possible.”
Charge to Grand Juries by Chief-Justice Jay, 1790
“Whether any people can long govern themselves in an equal, uniform, and orderly manner, is a question which the advocates for free government justly consider as being exceedingly important to the cause of liberty. This question, like others whose solution depends on facts, can only be determined by experience. It is a question on which many think some room for doubt still remains. Men have had very few fair opportunities of making the experiment; and this is one reason why less progress has been made in the science of government than in almost any other.” pg. 387
MIMA QUEEN V. HEPBURN, 1813 – OPINION BY CHIEF JUSTICE MARSHALL
“the difficulty of obtaining jurors whose minds are entirely uninfluenced by opinions previously formed is undoubtedly considerable. Yet they ought to be superior to every exception, they ought to stand perfectly indifferent between the parties; and although the bias which was acknowledged in this case might not perhaps have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way;”
Jean-Jacques Rousseau, On Social Contract or Principles of Political Right (1763).
