[Former public defender and Cardozo law professor Jonathan Oberman and Dissent editors Nicolaus Mills, Maxine Phillips, Jim Sleeper, and Michael Walzer will hold forth on the uses and abuses of the jury system this Wednesday evening at Brooklyn’s BookCourt. For more information, click here.]
JURY DUTY is probably the original form of participatory democracy, and since the end of military conscription, it is the only personal service required by the state. Given the opportunities for evasion in most cities and counties in the United States, it is probable that more Americans vote (though voting isn’t required) than serve on juries, but voting takes only a few minutes, jury duty at least a few days. For most of us, serving on a jury, if we serve, is the most that we will ever do in person for the American republic. Libertarians think that taxation also requires personal service: for some significant part of each year we work and earn money for the state. But that’s not how we experience taxation.
The only personal service it requires is filling out the forms and writing the check, and when we do that we are thinking mostly of ourselves and not of the republic. Jury duty is different because we have to think about other people. Long ago, Alexis de Tocqueville argued that men and women who serve on juries are also served: they are lifted out of the private sphere; they learn about law and justice; they become better citizens. Jury duty, he thought, is a central feature of American democracy and one of the sources of its strength.
Because many of us on the left are worried these days about the strength of American democracy and about the willingness of our fellow citizens to bear its burdens, it seems useful to revisit the question of jury duty. We reprint here Tocqueville’s argument (excerpted from Democracy in America [eds. J. P. Mayer and Max Lerner, trans., George Lawrence, Harper & Row, 1966, pp. 249-53]), follow it with eight reports from the field by editors and friends who have been called for jury duty, and end with an appraisal of Tocqueville’s analysis.
The Jury in the United States Considered as a Political Institution
My subject having led me to discuss the administration of justice in the United States, I shall not leave it without speaking of the jury. . . .
To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged. . . .
The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.
Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.
Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit.
Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible.
Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.
Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is [the jury system’s] greatest advantage. It should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.
—Alexis de Tocqueville