Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
The constitutional requirement of a jury in criminal cases represents an essential protection of our liberty, an expression of democracy, and a commitment to deciding cases based on empirical evidence. It is not only a fundamental feature of America, but a celebration of the values of the Enlightenment that trusts in evidence and the collective wisdom of people disciplined by rules to sift through that evidence. At a time when the values of both our Founding and the Enlightenment are under attack, it should not be surprising that even the highest officials in our nation do not give the jury its proper respect, and that our culture, particularly our media culture, makes it harder for the jury to flourish.
The reaction of our leaders to the Kyle Rittenhouse verdict demonstrates how beleaguered the jury system is. For instance, after initially defending the verdict, the President said he was “angered” by it. Governor J.B. Pritzker, the governor of my home state of Illinois, denounced the verdict, calling it “a tragedy that the court did not recognize that shooting unarmed civilians is wrong” and that “we must do better than this.”
The only virtue of these irresponsible comments by politicians, who unlike the members of the jury, had not heard the evidence in the case, is to remind us that our Founders created the jury system in large part to prevent powerful leaders from putting people in jail to satisfy their own political imperatives.
The Jury in America
The Sixth Amendment’s right to a criminal jury reflected the experience of those who wrote it. The revolutionary generation keenly recalled that the jury had restrained the injustice of the Crown’s centralized authority, most notably when a jury had acquitted Peter Zenger for seditious libel brought by the administration of the governor of New York. The jury thus was originally celebrated as a popular institution that restrained undemocratic authority—at that time the rule of colonial governors appointed by the Crown. But the Framers, who ensured that the law would be made and enforced through democratic mechanisms, retained an important role for the jury in the Republic as additional protection for liberty and a mediating institution between the individual and the state.
In that new democratic context, the jury is distinguished from the legislature and the executive not so much by its popular nature, but by features that allow the jury better to approximate spontaneous order of civic society than more top-down institutions of democracy—institutions that, as the comments of our current leaders demonstrate, are liable to demagoguery and pandering. First, the jury is sensitive to the nuances of local values because it is drawn from the local community. Second, while the jury is, like democracy, an institution directly dependent on the people, it does not typically face the process defects such as the leverage of special interests and the rational apathy of citizens that beset centralized mass democracy.
In contrast to more centralized democratic institutions, the jury focuses the attention of a set of citizens on a specific purpose. Because of this design, the jury has the opportunity to inject social norms that bubble up from below into the laws that are themselves made in a more top-down manner. Juries are called on to provide concrete application to general concepts in criminal law. The law may allow a defendant to exercise reasonable force in self-defense, as in the Rittenhouse case, but the jury decides through its assessments in specific cases what constitutes reasonable force. The law may punish criminally negligent conduct, but the jury decides through its case assessment what constitutes negligence.
Thus, through thousands of decisions each year, the jury infuses local and focused evaluation of evidence into the laws made by more distant institutions, less subject to the control of a politically inattentive citizenry. For similar reasons, Tocqueville himself celebrated juries as a kind of government-assembled civic association. He noted that it placed the “real direction of society in the hands of the governed . . . and not in that of the government.” He specifically noted that it “contributes powerfully to form the judgment and increase the natural intelligence of a people.”
The judgment of the jury in the Rittenhouse trial represents the antithesis of the comments of the politicians on its verdict. It represents the decision of an informed group drawn together under rules of evidence to encourage reasoned judgment. The comments of the politicians are those of people uninformed by the evidence who have reason to play to the crowd rather than exercise judgment.
Thus, Tocqueville is correct that the jury had many of the same advantages as civil associations. Like civil associations, juries help form the judgments of a republican people in a decentralized manner. While the jury is a popular institution, Professor Akhil Amar also rightly called the jury a “mediating institution.” The jury serves as a break on centralized authority, whether exercised bureaucratically or by their elected officeholders. The jury also has an educative function, making it easier for citizens ignorant of the law to understand their rights. Ultimately, judgments of juries can ripple out beyond the case, making the republic stronger.
The Media and the Jury
For the jury to be respected, the media has to lay the groundwork for that respect by providing unbiased reporting before the trial. But, as others have noted, the mainstream media tended to leave out important facts about the Rittenhouse case. This failure to provide context led to surprise at the verdict in some quarters of the population—a surprise that motivated, even if it does not justify, officeholders’ attacks on the verdicts.
For instance, the events in Kenosha—the background to the Rittenhouse trial—were portrayed as mostly peaceful demonstrations rather than riots wreaking widespread destruction. Rittenhouse was deemed an interloper—someone who had no connections to Kenosha—despite the fact that his father lived there and he had worked there as a lifeguard. The salient fact that he had been chased and his life threatened was also left out of many narratives. And it was implied that the incident was racial, even though those whom he shot were white. As a candidate for President, Biden shockingly encouraged this perspective, labeling him without any apparent evidence a “white supremacist.”
These false and misleading narratives, of course, underscore the importance of the jury trial. Rittenhouse had defense lawyers to present the actual facts to the jury and it was that presentation that saved him from prison. But sadly, the prevalence of a false pre-trial narrative also shows that the continuing public acceptance of the institution of the jury may depend on a beneficent political culture that is itself under threat. One part of that culture is the presence of a media that tries its best to report the relevant facts even before trial and even when those facts do not fit into an overarching narrative, like the need to fight racial injustice. Another is the political climate of mutual respect rather than polarization that discourages politicians from trying to distort jury verdicts to create a political payoff.
The Limits of the Jury
Just as it is important to recognize the limits of democracy, it is important to recognize the limits of the jury. The jury’s function is to determine legal guilt or innocence. The jury verdict in the Rittenhouse case does not vindicate or condemn the defendant morally. It cannot, because the question the jury answers under law is only a legal, not a moral question. Nor can it answer the question of how better policies might have avoided these very sad events, because the question before the jury is one of current law, not future policy. No person’s liberty should be sacrificed because of others’ policy mistakes.
Our politicians are welcome to explain the functions and limitations of the juries, even as they supported their actions and defended them against unjustified criticism. If they wished, politicians could even make the case that verdicts call for changes in law or in policy. Their egregious failure to make such distinctions and defend the jury verdict in the Rittenhouse case gives us more reason to be grateful for this liberty guaranteed in our charter of freedom—but also more reason to worry that we no longer have a political culture that will preserve it.