The Founders Revered the Right to Trial by Jury. Will SCOTUS Now Follow Their Example?

Understanding the stakes in Kian v. Florida

The U.S. Supreme Court just added a new case to its upcoming 2026–27 docket that should interest fans of early American history.

At issue in Kian v. Florida is whether the Sixth Amendment right to trial by jury requires 12-person juries in all criminal cases. Florida law says it does not. According to that state's statute books, "twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases." Hamed Kian, who was tried by a six-person Florida jury and sentenced to prison for practicing chiropractic medicine with a suspended license, wants the Supreme Court to overturn his conviction and restore the 12-person jury in the Sunshine State and the handful of other states that currently lack it.

To win, Kian will have to persuade a majority of the justices to overrule the Supreme Court's 1970 precedent in Williams v. Florida, which allowed the use of six-person juries. "Williams was incorrectly decided," Kian argues, "and is contrary to the understanding of the Sixth Amendment at the time of the Founding."

At least one member of the Supreme Court seems more than ready to reach that same conclusion and rule in Kian's favor. In 2022, the Supreme Court declined to hear a similar case about the constitutionality of an eight-person jury called Khorrami v Arizona. Dissenting from that denial of certiorari, Justice Neil Gorsuch argued that "a mountain of evidence suggests that, both at the time of the [Sixth] Amendment's adoption and for most of our Nation's history, the right to a trial by jury for serious criminal offenses meant a trial before 12 members of the community—nothing less."

Two years later, the Court declined to take up a six-person jury case called Cunningham v. Florida (2024). And once again, Gorsuch filed a sharp dissent. "Florida does what the Constitution forbids because of us," he declared. "In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6-member panels in criminal cases." And "in doing so," Gorsuch continued, "the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a 'battery of this Court's precedents.'"

Gorsuch's historical argument is convincing. The Sixth Amendment's right to trial by jury was rooted in the British common law. And that British common law right, as William Blackstone explained in 1769 in his widely read Commentaries on the Laws of England, rested on the existence of 12-person juries. "The founders of the English law," Blackstone observed, "have, with excellent forecast, contrived, that…the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion."

To say that the right to trial by jury was of paramount importance to America's founding generation would be putting it mildly. Among the "repeated Injuries and Usurpations" charged against King George III in the Declaration of Independence, for example, is the fact that the crown "depriv[ed] us, in many Cases, of the Benefits of Trial by Jury."

Likewise, when the Anti-Federalists complained in the late 1780s about the lack of a Bill of Rights in the new U.S. Constitution, they frequently lamented the lack of additional jury trial safeguards. "How does your trial by jury stand?" Patrick Henry demanded of the Virginia Ratification Convention on June 5, 1788. "In civil cases gone—not sufficiently secured in criminal—this best privilege is gone." The Sixth Amendment was ultimately added to the Constitution to assuage such Anti-Federalist concerns.

Kian v. Florida thus presents the Supreme Court with the opportunity to both correct one of its past mistakes and vindicate a venerable constitutional right the founding generation clearly held dear.

Comments

[Mickey Rat]

"Kian v. Florida thus presents the Supreme Court with the opportunity to both correct one of its past mistakes and vindicate a venerable constitutional right the founding generation clearly held dear."

Or is it an attack on federalism and States Rights, in favor of a single standard?

Much rests on the contention that only a twelve person panel can be a jury. The reasoning of Williams v. Florida is not directly discussed here at all, even to refute.

[GOD OF PENGUIN ISLAND]

Neither is the fact that the 6th doesn't say 12. Common Law does, but I'm pretty sure The Federalist papers don't. Did any other writings by the founders?

Seems like the kind of thing that should be discussed, since it's the question at hand.

[Stupid Government Tricks]

The 6th doesn't say they have to be adults either, or a lot of other things. The fact is that "jury" meant 12 competent adults, and changing it to 6 is just another constitutional amendment by reinterpretation, bypassing Article V.

[GOD OF PENGUIN ISLAND]

Is there a state law that specifically allows jurors to be children?

If one state set the minimum age at 18 and another 21, would that be in conflict with the 6th?

It also originally meant 12 knights, so obviously not every part of the original meaning is being used.

My point was that Damon’s article is arguing that 12 is acceptable and 6 is not, but he makes no actual argument for why that is.

[Mickey Rat]

It is typical of Root's question begging style of writing. He does at least offer some historical support on the 12 man jury being proper, but does not examine any counterargument.

[Stupid Government Tricks]

Let's look at the Supreme Court and jury trials, shall we? Here's the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Look at those bolded bits. All criminal prosecutions get a jury trial. No exceptions.

Then look at this (https://www.cato.org/blog/when-constitutional-right-petty-exception):

Accordingly, the Supreme Court confected a doctrine to subvert the jury process altogether. They called it the "petty offense exception."

In the 1968 case of Duncan v. Louisiana, the Supreme Court incorporated the right to a criminal jury trial against the states. In doing so, the Court indicated that "[t]he penalty authorized for a particular crime is of major relevance in determining whether it is a serious one subject to the mandates of the Sixth Amendment." Two years later, in Baldwin v. New York, the Court established a bright-line rule, holding that any crime with a maximum sentence of more than six months is a serious one, deserving of a jury. But nearly two decades later, in Blanton v. City of North Las Vegas, absent any historical foundation, the Court cemented the "petty offense exception," firmly holding that if an offense carries a maximum sentence of six months or less, a jury is not required.

The Sixth Amendment says nothing of the sort. The Supreme Court just gutted it without batting an eye; Wikipedia says they claimed common law had such an exception, but I am not impressed when it took 180 years to "discover" something so common. How can anyone believe in the Rule of Law when mere Men can so easily make up such nonsense out of thin air? What is the point of a written Constitution when its words mean nothing?

It gets worse. The defendant in that article was being prosecuted for two six-month crimes. The Supreme Court says each one counts separately, not together, in spite of him having one trial for both charges. Six plus six equals six in Supreme Court arithmetic.

But what about someone — like Jay Carey — who is facing multiple petty offenses, where the combined maximum term of incarceration exceeds six months? This question was answered in the 1996 case of Lewis v. United States, in which the Court held that even if a defendant is facing multiple petty charges, each with a maximum six-month sentence, the person is still not entitled to a jury trial. The justices ruled that the right to a jury trial is tied to the severity of each individual offense, not the total potential sentence.

[MollyGodiva]

If hedge BoR required 12 people it would have said so.