Waiting for democracy

—Andrew Guthrie Ferguson

Last November, thousands of citizens waited for hours outside polling places to cast their ballots in the presidential election. When asked why they were willing to wait, most answered in the emphatic language of democratic pride. It is our duty. It is our right. It is our calling as citizens. We are proud to.

Every day in courthouses across America, there are other lines of waiting citizens—lines for jury duty. There are lines to get into the courthouse, lines to check in, lines before you head to the courtroom for jury selection. Yet, if you ask those jurors why they were willing to wait, the language is less emphatic, less proud.

Why do we think of voting as something more connected to our democratic identity?  Why of the twin political rights of voting and jury service—the two markers of full political citizenship—do we value the right to vote more? The answer is that we misunderstand the value and values of jury service to democracy.

Why Jury Duty Matters sets out to reframe the debate by showing the importance of jury service to our democracy. To understand the value of jury service you need to understand its history, its constitutional connection, and its personal relevance to citizenship.

First, the history of the jury is the history of America. The right to a jury trial came over on the first boats to America. Jury protections can be found in the charters that founded the Jamestown and Plymouth colonies. Juries were instituted in the constitutions of each of the Thirteen Colonies and each of the new States. In fact, the denial of the right to a jury trial made it into the Declaration of Independence as one of the grievances of the colonists, helping to spark the Revolutionary War. Not surprisingly then, the right to a criminal jury trial is the only right that makes an appearance in both the original text of the United States Constitution and the Bill of Rights—under Article III and the Sixth Amendment, respectively. Further, you also have the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s right to a Grand Jury.

Then, as America democratized and diversified, the jury was central to the battle for equality. The civil rights movement in the South began by challenging exclusions from jury service. The right to serve as a juror was a badge of citizenship—symbolizing equality. The women’s suffrage movement (both before and well after the Nineteenth Amendment) also involved a particular emphasis on the right to serve as jurors. Equality meant voting and having the right to jury service. Today, paralleling the progress of the various civil rights movements, jurors represent a fair cross section of society, a living symbol of equality in law.

This constitutional history is real, yet most people do not appreciate it when it comes to jury service. Jury duty is the one time where constitutional history and constitutional theory become immediately relevant, because you—the citizen—are a constitutional actor. We—the people—must act, and Why Jury Duty Matters explores why you should accept the call as a constitutional actor.

Second, the jury is a teaching moment where constitutional values come alive in practice. Participation, deliberation, fairness, equality, accountability, liberty, dissent, and the common good—these are constitutional values, and they are embedded in jury service. While voting is one form of participation, jury service is an even more fundamental contribution. It requires working through those other principles, applying due process rules to achieve fairness, deliberating with others, dissenting with tolerance, and practicing equality in a microcosm of one-person, one-vote democracy in the jury room.

These values are also values that we see in other areas of our democratic practice. But in jury service the lessons are longer, the questions deeper, and the practice harder. It is for that reason that Alexis de Tocqueville likened juries to free public schools, always open to teach the civic skills of democracy.

Finally, jury service is personally meaningful. It is the one day that you are required to act like a constitutional citizen. The argument in this book is that you should treat that jury summons like a constitutional invitation. You get to experience it for a day, or more, and hopefully learn a thing or two about your country and the Constitution.

Jury duty is Constitution duty. It is a way for citizens, ordinary folks, to connect to the constitutional principles that guide this nation. Most people see jury duty as a service they do for the court system or for the defendant or parties. But in truth, jury duty is also for the citizen. Jury duty provides constitutional lessons necessary for democracy.

So the next time you are waiting on jury duty, remember you are waiting for democracy. It is just as important as your vote.

Andrew Guthrie Ferguson is Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia. He is co-author of Youth Justice in America and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action.

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