As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.
Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law. The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law. But what turns on this question? The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices.
A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards the defendant and his alibi witness during the deliberations. This evidence of bias, however, was excluded based on a Colorado evidence rules which “generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict.” The Supreme Court majority opinion, written by Justice Kennedy, held that this no impeachment rule was unconstitutional as violating the Sixth Amendment right to “an impartial jury.”
While the majority opinion largely neglects originalist arguments, Justice Thomas in dissent argued that the no impeachment rule did not conflict with the Sixth Amendment. He based his argument on his claim that the Sixth Amendment was protecting the common law right that existed at the time of the Constitution. Thomas wrote:
The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law when the Amendment was ratified. See . . . 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England). . . . It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches.
The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). …
Justice Thomas is arguing that the right had a specific historical legal meaning and that determines its content.
Significantly, this argument only applies if one believes the Constitution is written in the language of the law. The reason is that “the right to an impartial jury” is referring to the historical legal right that existed at common law. By contrast, if the Constitution is written in ordinary language, then this legal meaning could not be employed because legal meanings are not part of ordinary language. Since it seems pretty likely that this right had its common law meaning, especially as supported by the purpose of the Bill of Rights to preserve the historical rights of the English, this is one of many strong arguments for concluding that the Constitution is written in the language of the law.
If the right only has its ordinary meaning, then how should it be given content? What does “the right to an impartial jury” mean in this context? It is not clear. One might believe that it should include the right to admit juror evidence to set aside a verdict based on racial bias, but what about verdicts based on other types of bias? The Supreme Court indicated the answer to other types of bias would not justify such setting aside. Ultimately, the matter is not clear and so the Court must decide based on some extraconstitutional matter. The majority opinion reads like it was decided based on the Justices’ values.