On Constitution Day: Citizenship, jury duty, and Stephen Colbert

—Andrew Guthrie Ferguson

On the 225th anniversary of the signing of the Constitution, two truths remain: the Constitution has survived as the foundational document of this country; and no one agrees on its meaning. It remains inviolate yet contested, sacred but unsettled. And this is a good thing—a sign of its relevance and importance to daily life.

We are living in an era when the Constitution matters. Earlier this month at the Republican National Convention, the Constitution almost was given a speaking role, as references to liberty, limited government, and constitutional constraints dominated the speeches. A week later at the Democratic National Convention, President Obama articulated a theme of collective responsibility based on constitutional citizenship—“a word at the very heart of our founding, a word at the very essence of our democracy, the idea that this country only works when we accept certain obligations to one another and to future generations.” These Conventions offered two visions of the same document and contrasting images of the role of constitutional principles in society. Again, this is a good thing, as it reaffirms the engagement of citizens in the definition of constitutional citizenship.

Yet, the most telling reaction was from cultural critic and occasional constitutional comedian, Stephen Colbert, who said in response to President Obama’s citizenship comment, “I felt we all got jury duty by watching him last night.” On Constitution Day, I want to agree with Mr. Colbert and say that such a feeling of obligation—of linking responsibilities and constitutional citizenship—is also a good thing, because jury duty is constitution duty.

But most of us do not consider jury service as such a constitutional activity. Citizens when summoned don’t see themselves as constitutional actors. The truth in Colbert’s comedy is that “we the people” feel the same dread about constitutional responsibilities as we do about jury duty. Not because we don’t love the idea of the Constitution or even the jury. But because the work involved is unfamiliar and difficult. We don’t think about constitutional rights until they are threatened, and we don’t think about constitutional responsibilities as part of our daily lives. This should change, not only on September 17th—the one day we choose to honor the United States Constitution—but every single day. Every day is an invitation to recognize our responsibility to be a constitutional actor.

Jury duty exists as perhaps the best example of a misunderstood constitutional moment. Most citizens miss the constitutional principles embedded in the experience. The jury is not only a constitutionally mandated institution, but an institution that teaches constitutional values. Juries represent democracy in action, as citizens vote based on principles of fairness, equality, and accountability. We act on common principles, we speak, we deliberate, and we decide. A quick look around the courthouse reveals constitutional principles at play:  participation, deliberation, fairness, equality, accountability, liberty, dissent, and the common good are built within the structures of the courthouse and the rules of trial. These are constitutional principles that helped found America, and all exist in the educational experience that is jury service. Yet, we rarely look for those constitutional lessons, and this is not a good thing.

Instead of dreading jury duty, we should consider it an invitation to constitutional participation—one of the few times we are called to act in a direct way with constitutional principles. You may believe in liberty, due process, and accountability, but jury service requires you to apply those principles to the human being sitting across the courtroom. You may think voting is important (even if you don’t always do it), but in the jury room you must vote. In short, most of us claim we would die to protect the Constitution; jury service simply asks you to live it.

So, as we reflect on what the Constitution means to us today, we should also reflect on how we approach the few moments of constitutional responsibility required of us as citizens. Jury duty, voting, participating in local government, and civic education are all necessary duties we undertake as citizens because of the Constitution. They remind us that in order to stay relevant and important we need to make the Constitution part of our everyday lives. We need to act as constitutional citizens, and to do that we need to teach ourselves about the importance and value of our constitutional responsibilities—including jury duty.

Andrew Guthrie Ferguson is Professor of Law at the University of the District of Columbia. His book, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action, will be released in early 2013.

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