Constitution Requires Unanimous Criminal Jury Verdicts for Conviction

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So the Supreme Court just held this morning, in an opinion (Ramos v. Louisiana) by Justice Gorsuch, joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh (with Justice Sotomayor and Justice Kavanaugh writing separately in part as to why a contrary precedent should be overruled). Justice Thomas agreed on the result, though argued that the unanimous jury trial guarantee of the Sixth Amendment majority should be seen as applied to the states via the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause (his view as to the Bill of Rights more generally).

Justice Alito, joined by Chief Justice Roberts and (largely) Justice Kagan, dissented. They would have upheld nonunanimous verdicts because of the past precedent supporting them, the splintered decision in Apodaca v. Oregon (1972). More on this later today, I hope, but here's the closing from Justice Gorsuch's opinion (joined on this by Justices Ginsburg, Breyer, and Sotomayor):

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.

But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.

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  1. “But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

    Isn’t this the only thing maintaining a lot of New Deal precedents? That if you admitted they were wrong, the modern Leviathan state would have to be struck down? And the Court really doesn’t want to strike the Leviathan down.

    1. Aka “the Constitution is not a suicide pact”.

      1. As though actually following it would be suicidal.

        When people say, “The Constitution is not a suicide pact.” what is really meant is that it IS a suicide pact, and as such should be broken.

    2. Isn’t this the only thing maintaining a lot of New Deal precedents?

      In your eyes, maybe. But I don’t think that’s supported by modern jurisprudence.

    3. Um, no.
      Go on google images and find pictures of young men having their World War II induction physicals. You will find large numbers of them emaciated, obviously malnourished, with their ribs sticking out.
      People who criticize the New Deal simply have no concept of the misery that preceded it. And while it (and further growth of the state) are far from perfect, the bottom line is that we are far better off for them than we would be without it.
      It’s not that the Constitution isn’t a suicide pact. It’s that some of us actually prefer a society in which people aren’t hungry, living in tar paper shacks in the woods, and listening to their children cry because there’s no money to take care of their toothaches. That libertarians are willing to have those results simply speaks to the moral bankruptcy of libertarianism.

      1. Are you incapable or just unwilling to admit that even if something is a good idea, government might not have the lawful authority to do it? Whether we are better off is immaterial to that question. Also see Hayek’s observation that statists consistently and wrongly equate not wanting the government to do something with not wanting that thing done.

        1. tkamenick, I simply disagree that the government lacked the lawful authority for the New Deal and other social programs. And as for having the private sector do it — the alternative to the government do it — the New Deal was necessary because the private sector couldn’t or wouldn’t handle the problem. If the private sector were adequately providing for people’s needs, the New Deal wouldn’t have been necessary.

          I’d be happy for the government to stand down, just as soon as the private sector demonstrates it’s up to the task and willing to do it.

        2. Are you incapable or just unwilling to admit that even if something is a good idea, government might not have the lawful authority to do it?

          This is true as far as it goes, but it was also true that the Constitution was enacted and replaced the Articles of Confederation precisely because the federal government was foreclosed under the latter document from exercising a lot of powers to implement good ideas.

          1. Right, which is precedent for the idea that, when you find a constitution inadequate for the job, you replace/amend it, instead of just pretending it has the new meaning you want.

          2. And if the constitution today prevents us from implementing sufficiently good ideas, that seems like an excellent argument for amending it to remove those restrictions, or even adopting a new constitution altogether. I don’t think it justifies continuing to pretend that the constitution says something that it manifestly doesn’t.

            1. Look, that’s, again, true as far as it goes.

              But the fact that multiple framers expressed that the intention of the Constitution was to create a national government with enough power to solve any problem of national scope is indicative that the purpose of the document was to avoid having to create a third charter with even more federal powers. In other words, it is a mandate to broadly construe the powers in this one.

              1. I guess we simply disagree. They sought to create a government with enough power to handle the problems they anticipated. That’s not the same as creating a government with the powers some people might someday want to handle problems they didn’t anticipate.

                They didn’t include Article V for fun. They meant it to be used, not bypassed.

                1. Brett, that’s a really dangerous theory. Are you really suggesting that unless a problem was anticipated in 1789, the federal government is foreclosed from addressing it, absent a Constitutional amendment, no matter how necessary an immediate resolution may be? I have always thought “the Constitution is not a suicide pact” to be a greatly overused cliche, but in this case it applies.

                  1. Can you describe one or two hypothetical situations that require “immediate resolution” and are currently foreclosed by the Constitution?

                    1. We would first have to resolve the issue of what is currently foreclosed by the Constitution; I flatly disagree with the originalists that the New Deal was unconstitutional. I’m fine with an expanded Interstate Commerce Clause (though I probably wouldn’t have expanded it as far as some have), and I don’t find the Tenth Amendment nearly as restrictive as do the originalists. So as I read the Constitution, I probably think there is far less that is foreclosed by the Constitution than you do.

                      If, for the sake of argument, I were to adopt the originalist position, I would say that if we’re in the middle of a civil war, and the only way to keep Maryland from seceding (thus surrounding the national capital entirely by confederate territory) is to send troops to keep it from happening, then the necessity of war may very well take precedence over whatever violations of federalism that may have involved.

                    2. Article I, section 8, clause 15 and the Insurrection Acts that followed it already had that covered.

                      Also I don’t think that amending the Constitution is as difficult as you make it seem. Things reach consensus eventually. I think even gay marriage would within a few years if not by now have been ratified as an amendment, given the steady march of states legalizing it. It’s just easier to get five judges to do that work I guess.

          3. No, the federal constitution was enacted without the consent of the vast majority of the population, with many of its proponents prevaricating upon the meaning, purpose, and scope of its provisions, having been drafted by those who sought, inter alia, an American mercantile system, with dreams of a national bank.

            P.S. Let’s not forget socializing the payment of worthless war bonds.

            1. It is quite true that the Constitution was not enacted in a manner that we would now consider legitimate. In addition to the somewhat correct points you make about the bamboozling of the public, there were also large segments of the population- women, Indians, etc.- who were completely excluded. The biggest lie of all is the very first three words of the document- “we the people” had absolutely zero to do with it.

              And yet, it is the legitimate, accepted, charter of the government. It’s like fiat money. If we all decided we weren’t going to consider dollars valuable anymore, the monetary system would collapse. But as long as there is widespread acceptance (and the US government has a monopoly on the use of force), the Constitution is legitimate despite all the subterfuge in its enactment.

              1. And that harks back to a point I’ve made on earlier threads: Even ignoring the procedural irregularities in getting it passed, the Constitution is about as far removed from contemporary American values as one might imagine, with the added thing that it’s almost impossible to amend since 2/3 of Congress and 3/4 of the states rarely agree on anything. Plus it produces political dysfunction unknown almost anywhere else in the Western world. Why on earth should originalism be taken seriously?

      2. Sheesh. I’ll remind you that the New Deal was what preceded WWII, and delivered up those emaciated, obviously malnourished recruits.

        1. And what would they have looked like with no new deal?

          1. That’s your speculation. But your evidence that recruits were emaciated when WWII started does not support your speculation, since WWII was preceded by The Depression and then the New Deal.

            1. The point is that they were emaciated and malnourished at a time when the government social safety net as we know it did not exist. And one of the Army’s biggest challenges was undoing years of malnutrition so they could be made combat ready. But you don’t need to take my word for it; the Army itself said as much.

              And those willing to undo that safety net don’t grasp that having a well fed and well nourished population is at least potentially a national security issue.

              1. But everyone in the US going through a “World War II induction physical” had already lived through the New Deal. But to the extent they were still malnourished, that shows that the New Deal didn’t solve their problems, and I’m not sure why you are pointing to the existence of problems after the New Deal as proof of its success.

                (I would add that, for the most part, proponents of economic freedom and laissez-faire capitalism don’t take the positions they do because they don’t care about people starving. Rather, they think the theoretical and empirical evidence shows that those systems produce more wealth and prosperity than command economies, which make it easier for people to get the goods and services they want, including food.)

                1. I didn’t say the New Deal solved their problems. I said that without the New Deal, it would have been even worse. As it was.

                  As for your final paragraph, programs like the new deal are only necessary because the free market isn’t actually accomplishing necessary results.

                  1. I understand that now, but you need to realize that demonstrating that a problem is (still?) around after your proffered ‘solution’ does NOT demonstrate your supposed solution actually helped, and things would have been even worse without it.

                    Phlebotomists used to bleed people dry to cure their anemia, on that exact same reasoning. You need to be open to the possibility that the problem was still around after your solution was tried because your solution didn’t really help, not just because it wasn’t tried hard enough.

                    1. The New Deal was a Raw Deal for most; but a great deal for the parasitic administrative state.

                    2. Brett, compare before welfare state and after welfare state numbers to just about any metric that matters, and you’ll see that despite being far from perfect, we’re better off than we were before. Elder poverty is down. Standards of living are up. We’re better educated. We have more disposable income.

                      Of course you can find things to criticize; that’s easy to do. But the question is not whether it’s perfect; the question is whether we’re better off now than we were then. And the answer to that is a resounding yes.

            2. That’s your speculation.

              That’s not speculation. It was a global Depression. It’s not like other countries were able to escape it through austerity programs.

              The WPA and other government programs prevented a whole bunch of people from starving and dying. That’s fact, not speculation. The New Deal was not perfect (e.g., the National Recovery Act was pretty bad), but it still saved a lot of lives.

              And Social Security, by the way, was part of the New Deal as well.

              1. There was a global love affair with central planning, too. Might have been a connection there.

                1. Or it might have been that the world realized how absolutely stupid and evil it would have been to let tens of millions of people die to uphold a dumb principle of strictly limited government.

                  1. Well tens of millions (actually hundreds of millions) of people did die at the hands of unlimited central government. The idea that programs like the WPA saved anyone from dying is speculation and not very good speculation at that. Social Security was the one consequential beneficial thing that came out of the New Deal but even it could have been implemented much better.

                    1. How may people actually died specifically because of the New Deal?

          2. Considerable evidence suggests that the New Deal extended and exacerbated the economic troubles – that leaving market cycles alone would have resulted in a faster recovery with fewer unintended consequences. Assuming that’s true, they would have looked much better with no New Deal by the time WW2 rolled around.

            1. There’s actually zero evidence of that. Amity Shlaes tried to advance that thesis in a book but it was totally discredited.

              At any event, it was a GLOBAL depression. The idea that the US could escape the depression on its own is just stupid on its own terms. When every relevant country in the world is going through the same thing, the important lever clearly isn’t US policy.

            2. It’s more likely that it had no impact on the economic recovery. Sort of like using a fly swatter to stop a bear. The mechanisms for actually moving the economy simply weren’t there. Maybe they still aren’t.

      3. “moral bankruptcy of libertarianism”

        That is a given but you murdered a whole army of strawmen with the rest of your comment.

        The government could have easily fought all those horrors with its existing powers [money!] without a single Supreme Court decision.

        1. The government wasn’t the entity that took all those cases to the Supreme Court.

          1. None of the cases mattered in ending the depression.

            1. OK, so you’ve now moved the goalpost.

              1. Not at all. I said they could [and actually did] use their existing powers, mainly spending, without seizing new powers.

                Wickard was decided in 1942. The Depression was already over.

                1. Then your original comment about the government not needing Supreme Court cases is irrelevant, since the Supreme Court had nothing to do with ending the depression, a point I largely agree with. But for the post-Depression cases, it’s not the government that brought them, so it’s not the government you should blame for whatever bad precedent you think we ended up with.

                  1. The government passed the laws being challenged.

                    They could have mooted the cases by repealing the laws.

                    1. But those laws were necessary and proper to the times.

          2. I have to admit, I have no idea what point you’re trying to make. Could you elaborate?

            (It’s not entirely clear which cases are under discussion here, but I also don’t think your claim is true. Wickard, for instance, came to the court on the government’s cert petition.)

      4. The suggestion that the New Deal Was good doesn’t seem to respond to Brett’s point. If anything, it supports him, by strengthening the motive to continue to apply the “wrong” cases.

        1. I disagree with Brett’s premise that the New Deal cases were wrongly decided. Which is not to say I agree with every line in every case.

      5. “Go on google images and find pictures of young men having their World War II induction physicals. You will find large numbers of them emaciated, obviously malnourished, with their ribs sticking out.”

        Then they gave him the Super Soldeir Serum and turned him into Captain America. Didn’t you stay for the whole movie?

    4. I think the proponents of upholding those precedents (and, depending on which ones you have in mind, I’m likely not one of them) would disagree that they “know [them] to be wrong”—rather, I suspect, they would point out the negative consequences as evidence that those decisions were, in fact, not wrong.

  2. I thought only Oregon had non-unanimous juries. So how did this come up in Louisiana?

    1. Louisiana had them until a couple of years ago.

    2. Louisiana ended non-unanimous verdicts for felony criminal trials for any crime after 1 January 2019 (Amendment 2). Mr. Ramos was convicted 10-2 in 2016.

  3. The Constitution clearly and explicitly requires jury trial. It has nothing to say on whether verdicts must be unanimous. That seems to be inferred by supporters of requiring unanimous verdicts, but it isn’t actually there. It explicitly isn’t there in the one case where trial is actually specified in the text of the Constitution. Impeachment by Congress expressly does not require a unanimous verdict.

    1. Yes, the Constitution clearly and explicitly requires a jury trial, but what is a jury trial? Is it just a trial where jurors are somehow involved at some point, or does it mean more than that?

      There’s a lot of things in the Constitution like that: It calls for elections, for example, but doesn’t explicitly state that they have to permit more than one candidate per office. So, does that mean that a state could run a system with elections where the legislature appoints the solitary permitted candidate for each office, and the outcome of the election was preordained? I suppose you could argue that, if you weren’t an originalist.

      The Constitution requires “jury trials”, where “jury trial” has the meaning it had at the time the guarantee was adopted. The actual content of a “jury trial” isn’t totally fluid. Did any state permit non-unanimous verdicts in criminal trials at the time the 6th amendment was adopted?

      In fact, I do go further, and point out that all states permitted jury nullification at the time of ratification, so that, too, is part of what trial by jury means, and the 6th amendment is being grossly violated on a regular basis. Perhaps some day the Supreme court will work up the nerve to agree with me.

      1. Thank you for that. Too many people sneer at originalism as being a fraud, and then seem to go out of their way to prove its necessity. Words have meaning, and jury has a very well-defined meaning.

        1. That might be taking it too far. “Jury” definitely has a well-defined meaning, but I don’t think that that meaning includes unanimity, as a matter of plain English.

          1. But did “trial by jury” mean it at the time? That’s a question you’d have to answer by looking at the practice at the time.

            1. Yes, it will be interesting to see if Justice Gorsuch tries to justify his decision with some originalist pseudo-history a la Heller.

              1. In Heller neither side were up for a genuinely originalist ruling, because the originalist 2nd amendment is pretty frightening for modern ruling class tastes. So it was just a question of whether it was going to be neutered or killed, and the side that was content with neutering won.

                In the case of the right to trial by jury, the ruling class isn’t terribly frightened by a requirement for unanimous 12 man juries, so not a lot of fudging is needed. If jury nullification becomes the topic, though, there’ll be enough fudging to give a whole city diabetes.

                1. “In Heller neither side were up for a genuinely originalist ruling, because the originalist 2nd amendment is pretty frightening for modern ruling class tastes. ”

                  It’s also pretty frightening for gun rights supporters.

                  Gun rights supporters tend to be extreme libertarians who dislike the notion of the government intruding in their business and regulating their gun ownership.

                  And yet the express terms of the Constitution contemplate something like Switzerland- plenty of gun ownership, yes, but situated within the context of a great deal of civil obligation, including the obligation to come to the defense of the government, while the militia types and survivalists imagine overthrowing or resisting it.

                  So really nobody in America wants an originalist interpretation of the Second Amendment. Hence we get Heller (which isn’t a terribly unreasonable case actually) instead.

                  1. I always used to say that the government, instead of freaking out, should have responded to the militia movement by appointing officers and dictating a training regimen. The posers would have dropped out, and the rest couldn’t have disputed the constitutional basis for doing so.

                    I think you’re exaggerating how much gun owners would oppose a genuinely originalist 2nd amendment. Be that as it may, I was explaining why both sides of the Heller case were lousy originalism.

                    1. “I always used to say that the government, instead of freaking out, should have responded to the militia movement by appointing officers”

                      The challenge there is finding militia members who are loyal to the government of the United States to appoint as officers.

                  2. “Gun rights supporters tend to be extreme libertarians who dislike the notion of the government intruding in their business and regulating their gun ownership.”

                    Despite the fact that “well-regulated” appears right in the amendment. An alarming number of people like to pretend that the text of the 2A starts with a comma.

          2. But that is just the point. Originalism is not a matter of “plain English” and certainly not a matter of how a term is understood today in plain English. The issue is that when certain terms — especially legal terms — are used in the Constitution, they bear the meaning they were generally understood to have at the time.

            Ex Post Facto law, literally, means a retroactive law. But at the time it was accepted that it meant a retroactive criminal law, and that is how the Supreme Court understood it in Calder v. Bull (1798).

            Same thing for Habeas Corpus. It has a literal Latin meaning (show the body), but the meaning in the Constitution is the writ of habeas corpus as it was used at the time in British and American practice.

        2. ” Words have meaning, and jury has a very well-defined meaning.

          Yes, Constituional text refines “jury” by specifying an impartial one, and that it be drawn from the jurisdiction where the crime was committed. The problem is that “verdict” had a well-defined meaning, but the drafters didn’t include any requirement about verdicts beyond the initial impartiality erquirement of the jury.

          1. The real question is whether anything in the Constituitional text prohibits states from authorizing non-unanimous verdicts in its own courts. There are two places where restrictions of state powers are located…Article IV and Amendment XIV. Neither says anything about jury verdicts.

      2. “…has the meaning it had at the time the guarantee was adopted. The actual content of a “jury trial” isn’t totally fluid. Did any state permit non-unanimous verdicts in criminal trials at the time the 6th amendment was adopted?”

        I think the answer to the questions is some evidence of what was intended, but there is other evidence, too. The original version of the 6th Amendment required “unanimity for conviction” but that requirement was removed when it returned to the House. In light of that, I think it’s possible that the ratifiers did not intend to require unanimity in federal cases, even if that was the practice in all states at the time.

        1. I think it’s an error to suggest that a language change in the text of a proposed amendment made by the US congress says anything about the intent of state legislatures ratifying that amendment.

          1. It says something about the contemporaneous debate, which is more than zero evidence as to what was happening when the amendment was ratified.

            And why wouldn’t it be error to assume that the substantive law in any of the states provided evidence of what the ratifiers intended towards an amendment regarding federal trials? If the ratifiers of the 6A had intended to glom on to state law, they would have said that, just as they did re: “common law” with the 7A. (I know you don’t think what Congress did is meaningful, but would you agree that the incorporation of the common law in the 7A but not the 6A suggests that the 6A was not intended to be governed by the common law?)

            Back to square one. If you’re going to require the strictest evidence to show “the intent of state legislatures ratifying that amendment” what evidence is there that the ratifiers intended unanimous trials? The evidentiary burden is not on me, it’s on the person claiming a constitutional right.

        2. Or maybe it just fell victim to the 18th century mania for brevity.

          1. Maybe. But if you don’t have the evidence either way, tie goes to the law.

      3. all states permitted jury nullification at the time of ratification

        This is totally false.

        All states did not, ultimately, prevent jury nullifcation. As they don’t now.

        But jurors took oaths, were instructed on the law by courts, could be removed for not deliberating or for considering matters outside the factual record, etc. All of which were ways states attempted to prevent nullifciation.

        Jury nullifciation was never “legal” and is not “legal” now. The rules against it are not ultimately enforceable against a determined jury. That has always been the case, still is, and will always be, but that doesn’t mean that it isn’t illegal.

        1. As Justice Alito notes in this opinion, founding-era judges didn’t just instruct the jury on the law: they also instructed them on what they thought the evidence had shown, what evidence they did or didn’t find credible, and ultimately what verdict they thought the jurors should reach. There are some records of jurors being instructed that they could disregard the judge’s instructions on the law (though far from universal, as far as I can tell), but there’s no real question that American judges (especially in criminal cases) do far more to preserve the independence of the jury than they did 250 years ago.

          1. That’s absolutely right.

            Nullification has never been something celebrated and encouraged by the government- “oh yes, jurors, go on in there and disregard the law and do whatever you want!”.

            1. Celebrated and encouraged? Not so much the former, and certainly not the latter. But acknowledged as a legal right? Yup.

        2. I’m not sure why people think the view of the role of the jury has been static throughout US history. The view that juries could rightfully decide the law had been a mainstream, if minority, view among judges until at least 1895.

          Chief Justice John Jay instructed jurors before SCOTUS,
          “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

          In 1895, two SCOTUS judges dissenting in a case about jury instructions said, “the jury…in a criminal case, have the right, as well as the power, to decide…all questions, whether of law or of fact, involved in that issue.”

          So jury nullification has never been popular with judges, but for a good chunk of US history, it had been regarded as lawful by many judges, including SCOTUS judges.

      4. ” So, does that mean that a state could run a system with elections where the legislature appoints the solitary permitted candidate for each office, and the outcome of the election was preordained?”

        We have more than one state that has elections where the sole candidate was appointed by the executive, not the legislative branch, and those elections are quite legal. (Doesn’t hurt that the elections I’m talking about elect judges).

        I notice that you didn’t bother to confront the fact that the only kind of trial actually detailed in the Consitution doesn’t expressly require unanimous jury verdicts, and in fact expressly authorizes non-unanimous verdicts. Was that an oversight on your part?.

    2. Methinks it will be an interesting decision to read.

  4. Although I have never thought that the 6th Amendment constitutionalizes every facet of 18th-century jury practice, there does need to be some principled basis for deviations. As a policy matter, I am not married to 12-person juries or unanimous verdicts, but I have never seen a principled basis for allowing 10-2 verdicts or 6-person juries that would not equally permit ridiculous results like 3-person juries or plurality verdicts. In the absence of some limiting principle, I have long thought we were better off sticking to the familiar.

    1. I should add that, given the state of the law until today, I don’t think much of the prevailing opinions and I think Alito has the better of that argument. But I would gladly sign on to an opinion that says roughly what I just said.

    2. “Although I have never thought that the 6th Amendment constitutionality every facet of 18th-century jury practice, there does need to be some principled basis for deviations.”

      I would suggest that deviations that somehow improve the overall process should be permitted, but deviations whose primary effect is to increase the chance of conviction should not.

      1. 1. How do you determine whether a deviation does, in fact, improve the overall process? How do we know that allowing women to serve, or instituting random selection, or eliminating judicial summations, is an improvement?

        2. If a change to the jury system increases the number of guilty people who are convicted without increases the number of wrongful convictions—or even just improving the ratio—isn’t that itself an improvement of the overall process?

        1. “If a change to the jury system increases the number of guilty people who are convicted without increases the number of wrongful convictions—or even just improving the ratio—isn’t that itself an improvement of the overall process?”

          How do we know if the change does that?

          1. You’re the one who’s proposing judging the legitimacy of “deviations” by their effects, do you tell me—under your model, how do you know?

    3. If there is something inherently “ridiculous” about 3-person juries, why not just tell us what it is so we can use that as the limiting principle? We can say “You must have enough jurors to avoid [ridiculous results].”

      1. My recollection of Williams is that it relied on a rather unimpressive collection of social science results to tell us that “too small” a jury isn’t really a jury at all, which is probably true despite the limitations of the studies, and, from that, intuited that 6 was OK but less wasn’t for reasons that aren’t apparent.

        1. Then the limiting principle is that no person shall be tried to a jury with so few people that impressive collections of social science results tell us is too small. The Court in Williams didn’t “intuit[] that 6 was OK”. They concluded that there was insufficient evidence to show that 6 was NOT OK.

          1. Maybe you find that satisfactory. Seems pretty thin to me.

            1. What if we made the limiting principle “no person shall be tried to a jury with so few people that collections of social science results that impressed CJColucci tell us is too small”?

    4. Although I have never thought that the 6th Amendment constitutionalizes every facet of 18th-century jury practice, there does need to be some principled basis for deviations.

      Like what? I have been unable to devise a satisfactory answer myself, and I don’t see one from any of the opinions in this case.

  5. Alito is worried that grand juries will be next – in the 19th century the Court said states don’t have to obey the Grand Jury Clause, and many states have followed up on this by making grand juries optional or (in a couple cases) forbidden. And in those states which *do* require grand juries, the grand jurors are browbeaten into serving as rubber stamps, so that the opponents of grand juries can say, “see what you get with your precious grand juries?”

    1. It’s not just the states that still use grand juries that turned them into rubber stamps. The feds went there first.

      At the time of the founding, grand juries had their own investigatory power and could open cases on their own absent any oversight from government attorneys. They could take testimony/evidence from any source, not just those approved by government paid prosecutors.

      Frequently this power by the grand juries was used to investigate government officials. This is what they are afraid of.

      1. So your solution to the problem of grand juries indicting too many people is to ha e them indict even more people?

    2. Every since Gorsuch started dunking on the Indiana SG at the oral argument in Timbs, I’ve had trouble seeing how Hurtado is defensible. That challenge should be interesting, since I also can’t imagine how states could possibly implement it.

      (Civil juries—which are required to be unanimous in federal court under the seventh amendment—also seem like they’re in our future.)

      1. The Seventh Amendment jury clause is also not incorporated against the states at all. A challenge to the non-unanimous nature of many state trial court civil jury verdicts would also have to answer the incorporation question first. If the Seventh Amendment is incorporated, it could also require the Court to look at whether the common practice of capping compensatory damages in tort cases violates the jury trial right somewhere down the line.

        1. Honestly, if you asked me to look into my legal crystal ball, I would suspect that liberals will start pushing for full incorporation of Seventh Amendment rights as a prelude to a full push to restrict contractual arbitration.

          1. I don’t see how that argument would work. Constitutional rights can almost all be waived; why would the civil jury trial be any different? Arbitration is already a creature of contract.

  6. “But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

    I hope he remembers that phrase in the next abortion case.

    We already know that Ginsburg, Breyer, and Sotomayor only think this way when criminals are involved.

  7. Justice Thomas’s opinion is an interesting one but would lead to results I don’t think most would find palatable. One would have to be the most hardened of xenophobes to think lawful immigrants shouldn’t be entitled to jury trials, for example, just because they’re not citizens, but that seems to be the main consequence of the Privileges or Immunities clause being the vehicle as opposed to Due Process.

    1. Yeah, Justice Thomas goes out if his way to say that the right should not be incorporated under Due Process, but unlike most other incorporation cases, it’s tough to imagine an argument where a jury trial is incorporated under the P or I clause, but not under 14th amendment PDP.

      1. Right. It is a procedural right. Unless Thomas thinks that due process only requires notice and a hearing and that everything else is superfluous.

        1. He’s nuts. Literally nuts. He needs to think about the notion that maybe some beliefs he formed in his 20’s and 30’s were wrong.

          One way or the other, noncitizens are going to have constitutional rights. They’ll either get them under the Due Process Clause, or they will get them under the Equal Protection Clause once citizens get them. But no court is going to rule that non-citizens have no free speech rights, can have their guns taken away, the homes ransacked without any cause, can be denied jury trials, can be tried without counsel, can be tortured in prison, etc.

          And the central problem with Thomas’ analysis is he just hasn’t gotten past the word “process” in Due Process. Yes, I know, that suggests with proper process you can deprive rights.

          But Due Process is a sliding scale. Very little process is needed for a parking ticket, a ton of process is required for an execution. Why is it so crazy to say that for some governmental actions like, e.g., cutting off people’s testicles, no amount of process can justify it? That’s all substantive due process really is.

          Thomas wants constitutional interpretation to be simpler than it has to be, and doesn’t care if the results are ridiculous. That’s really not how things work.

          1. One casualty of New Deal era jurisprudence was the amount of process due property owners, business owners, professionals engaged in their craft, and home owners.

            1. Interestingly, the Warren Court favored moves towards more such process (it was called “the new Property”), but the Burger Court shut that down.

          2. I’m not sure about the second paragraph. Karen Henderson on the DC Circuit doesn’t think that any due process rights attach to the undocumented. I’m sure you could easily get a Fifth Circuit panel with that view. So while maybe they wouldn’t extend the extremes to legal immigrants the view that the undocumented don’t have rights is t exactly fringe.

            Whether these judges realize or care that their interpretation means there is no constitutional barrier to a program of mass extermination is a different question.

            1. Thomas’ position isn’t that undocumented immigrants have no rights. It’s that noncitizens have no rights, and only against state governments. The have full rights against the federal government.

              And that Makes. Not. One. Bit. Of Sense.

              Judge Henderson’s position is bad, but it’s not nearly as dumb as Thomas’, because it at least sets a consistent level of rights against both levels of government. (Indeed, if anything, you would probably say that the federal government has more power to impose regulations on immigrants than the states. Thomas says the reverse.)

              The problem with Judge Henderson’s position is that exempting illegal immigrants from the Due Process Clause, eventually, means the government can do anything with them. Torture them. Rape them. Boil them in oil. Whatever. She may think she’s just making it easier to deport them when they are here without papers, but at the end of the day, basic rights do have to be universal.

          3. Before saying that only the 14th Amendment stops the states from denying equal justice to foreign residents, torturing them, etc., then we’d first have to show that treaties and the law of nations allow such wrongs, and I’m not sure they allow it.

            1. The situation faced by the authors of the 14th Amendment was this: There was a large population of native nonwhites (especially former slaves) who denied citizenship rights by many states and at the same time had no other citizenship in a country which could stick up for their rights and, eg., negotiate treaties to protect them. As with my Chilean example, the U. S. prior to the 14th Amendment was quite willing to negotiate treaties protecting foreign residents so long as their country gave the same protection to Americans.

              So it wasn’t as if there was no federal remedy for foreign residents – the problem was there was a large nonwhite population treated as “stateless persons” in modern terminology, with few or any rights and no way for the feds to enforce rights for them. So the 14th Amendment specified that the native-born, regardless of race, were citizens of the U. S. and would be protected in the privileges and immunities of citizenship.

              The 14th Amendment wasn’t as urgently necessary for foreign residents as for native nonwhites, and it need not be the only source of federal protection of rights.

          4. “with proper process you can deprive rights.”

            Uh, are you aware that convicts are stipped of a good many rights? Are you sure you want to argue that they cannot be?

      2. By that logic, wouldn’t a unanimous jury also be required under the fifth amendment due process clause, rendering the sixth amendment guarantee superfluous?

        1. Wouldn’t they harmonize? So if the 6A says you get a jury trial, then that’s part of due process?

        2. Not necessarily. What if the Fifth Amendment wasn’t intended to incorporate rights because they were already enumerated, but the Fourteenth Amendment was intended to incorporate rights because they weren’t?

    2. I also don’t understand how it squares with the text of the Sixth Amendment, which doesn’t mention citizens at all. Actually none of the Bill of Rights refers to citizens. So the federal government is limited by the text from depriving anyone of those rights, and states are limited by the privileges and immunities clause from depriving them to citizens, but are apparently free to lock up non-citizens without a jury trial and impose cruel and unusual punishment on them? Unless the Fourteenth Amendment due process clause prohibits that somehow?

      1. Maybe a xenophobic law could be examined under the Equal Protection clause?

        1. Or treaties?

          The State Department said the US/Chile commerce and friendship treaty from the 19th century is till in force [at least as of 2016], and that treaty has this clause:

          “Both the contracting parties promise and engage formally to give their special protection to the persons and property of the citizens of each other…leaving open and free to them the tribunals of justice for their judicial recourse on the same terms which are usual and customary with the natives or citizens of the country in which they may be…”

          https://avalon.law.yale.edu/19th_century/chile01.asp

        2. In point of fact, Thomas would never reach his nirvana anyway because if we did incorporate under P/I, yes, non-citizens would win the same rights via equal protection.

          1. No, because in Thomas’ nirvana, equal protection just means that you can’t “outlaw” people; If it’s illegal to commit murder, the government can’t take some group and say, “Well, but it’s OK to murder them.” Everybody is equally protected by the law.

            1. If he really believes that is all that equal protection means, he’s an even worse judge than I already think of him as.

              I mean, quite obviously, if the government has no right to torture me, search my house without a warrant, or try me without a jury, and my green card holder neighbor can be subjected to all those things, he is not, in fact, being equally protected.

              That’s not a debatable point.

              1. Yeah, I don’t think you quite get the concept.

                The 14th amendment protects 3 things.

                1) Privileges and immunities. These, expressly, are reserved for citizens.

                2) Due process. Everybody gets this. Since this clause doesn’t distinguish between citizens and non-citizens, they both get it in equal measure.

                3) Equal protection of the law. Everybody gets this. Again, citizens and non-citizens, in equal measure.

                Yes, this puts non-citizens at a rather considerable disadvantage compared to citizens, though it doesn’t leave them completely without rights. Citizenship mattered, it wasn’t just a trivial thing.

                I think this topic is bringing forward the two contrasting views of the Constitution. On the one hand are people who think it must, absolutely must, mean something they regard as good, and any non-good interpretation is ruled out regardless of what the words themselves might denote.

                On the other side are people who think that the Constitution means what it means, for good or evil, and it is a form of intellectual corruption to deny that meaning just because you don’t like it.

                “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

                This isn’t ambiguous. Only citizens get these “privileges or immunities”, whatever they might happen to be. If you’re not a citizen, you’re out of luck. That you think this is a bad idea has no relevance to what the text means.

                I’m not compelled to agree with Thomas about what properly falls under the category of due process, vs what is properly a privilege or immunity. But that everybody gets the former, and only citizens get the latter, is undeniable, and that’s so whether or not it was a good idea.

                1. “Only citizens get these “privileges or immunities”, whatever they might happen to be.”

                  SCOTUS: If black people were citizens, they’d get the privileges and immunizes of citizens, like freedom of movement, freedom of speech, and the right to keep and carry arms wherever they go…

                  14A: Blacks are citizens, and they get the privileges and immunities of citizens…

                  SCOTUS: Turns out there are fewer privileges and immunities than we thought.

                  I suspect this might be what’s motivating Thomas. But I do agree with Dilan’s EP argument, unless there is a basis that some P or I should be reserved to citizens.

                2. Y’all are forgetting that the Bill or Rights is the Bill of Rights, not the Bill or Privileges or the Bill of Immunities.

  8. I accidentally flagged first two comments. Sorry.

    1. I do that too often on mobile when a popup happens and I try to close it out.

  9. Do you think this decision will be applied to military courts-martial? If so, how long will it take?

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