This essay discusses the jury’s value in American democracy by examining Alexis de Tocqueville’s analysis of the jury as a free school for the public. His account of jury socialization, which stressed lay deference to judges and trust in professional knowledge, was one side of a complex set of ideas about trust and authority in American political thought. Tocqueville’s contemporary Francis Lieber held juries to have important competencies and to be ambivalent rather than deferential regarding court professionals. The nineteenth-century courtroom exhibited such ambivalence and was marked by institutional conflict involving increasing professional authority demanded by the bench and populist counter-pressures. Assessing the value of the jury today may require some of the conceptual tools Tocqueville offers, but must also renew an appreciation of the jury as a site that utilizes already existing juridical capabilities of lay people and thus re-conceive the relationship between lay people and court professionals.
See, e.g., Adam Liptak, "Cases Keep Flowing In, but the Jury Pool Is Idle," New York Times (April 30, 2007); Hannah Leiterman, "The Citizen’s Jury" (ABA Division of Public Education, 2005).
2.
Alexis de Tocqueville, Democracy in America, ed. Olivier Zunz, trans. Arthur Goldhammer (New York: The Library of America, 2004), 316. Note that Tocqueville uses similar terms, "grandes écoles gratuites" or "vast free school," to describe civil associations. Tocqueville, Democracy, 606. Though both "schools" are free of charge and both moderate and productively channel popular participation, we will see that they operate very differently.
3.
See, e.g., Vikram David Amar, "Jury Service as Political Participation Akin to Voting," Cornell Law Review80 (1994): 221-22.
4.
See, e.g., Nancy S. Marder, "The Jury as a ‘Free School’ for Democracy," Insights on Law & Society 5 (Winter, 2005): 4-6. Jacqueline Edelberg calls Tocqueville’s account a pure distillation of American legal thought on the jury. "Justice Here? Alexis de Tocqueville and the Role of the Jury in the American Judicial Process and Republican Democracy," The Tocqueville Review 17 (1996): 68. John Stuart Mill accepts Tocqueville’s analysis whole cloth in his own sketch of the jury’s role in political socialization for liberal democracy. See Considerations on Representative Government, in The Collected Works of John Stuart Mill Vol. XIX, ed. John M. Robson (Toronto: University of Toronto Press, 1977), 412. Cf. Mill, "M. de Tocqueville on Democracy in America," The Edinburgh Review LXXII (Oct. 1840), 1-47; in Collected Works Vol. XVIII: 153-204.
5.
Alexander Hamilton, John Jay, and James Madison, The Federalist, ed. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), no. 83, 433.
6.
Alexis de Tocqueville, Journey to America, ed. J. P. Mayer, trans. George Lawrence (New Haven: Yale University Press, 1960), 149.
7.
Tocqueville, Democracy in America, 113, 317-18.
8.
On April 6, 1827, he was appointed at the age of 21 juge-auditeur, an unpaid assistant prosecutor, at the law courts of Versailles; he began his duties in June 1827 and left for America on April 2, 1831. See Hugh Brogan, Alexis de Tocqueville: A Life (New Haven, CT: Yale University Press, 2007), 78.
9.
Tocqueville, Journey to America, 222.
10.
Tocqueville, Democracy in America, 302.
11.
Tocqueville, Democracy in America, 303.
12.
Tocqueville, Democracy in America, 309.
13.
Tocqueville, Democracy in America, 306.
14.
A number of works stress Tocqueville’s "strange" and "aristocratic" liberalism that embraced a participatory and constrained democracy. See, e.g., Roger Boesche, The Strange Liberalism of Alexis de Tocqueville (Ithaca, NY: Cornell University Press, 1987), and Alan S. Kahan, Aristocratic Liberalism: The Social and Political Thought of Jacob Burckhardt, John Stuart Mill, and Alexis de Tocqueville (Oxford: Oxford University Press, 1992). Sheldon Wolin writes that "Tocqueville could render American democracy as tolerable by depicting it as a democracy qualified by the equivalents of aristocratic institutions." Tocqueville between Two Worlds (Princeton: Princeton University Press, 2001), 479. Cf. Seymour Drescher, "Who Needs Ancienneté? Tocqueville on Aristocracy and Modernity," History of Political Thought 24 (2003): 627.
15.
On the importance of aristocratic bodies and constitutional and judicial forms to moderating democracy, see Aurelian Craiutu, "Tocqueville’s Paradoxical Moderation,"Review of Politics67 (2005): 624.
16.
Perhaps because of his interviews with the leading lights of the profession-Kent, Story, Livingston, e.g.-or because of images brought from France, Tocqueville overstated the guild nature of American lawyers and the level of professionalism among the judiciary. Law was still an apprentice system at the time of his visit, and many judges had only modest formal training. Nevertheless, he was pointing in the direction American law was heading.
17.
Tocqueville, Democracy in America, 826. By "nature," he means the demos is driven impulsively toward short-term gratifications that may jeopardize individual rights and long-term public interests.
18.
Tocqueville, Democracy in America, 312.
19.
Tocqueville, Democracy in America, 317.
20.
Tocqueville, Democracy in America, 313.
21.
Tocqueville, Democracy in America, 314.
22.
Tocqueville, Democracy in America, 314. See Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (New York: Cambridge University Press, 1989), 10-15. Montesquieu set an example of treating the jury politically, as a critical moderating force, in his famous chapter on English liberty.
23.
Tocqueville, Democracy in America, 290. James T. Schleifer calls the view of the jury as a barrier to majority tyranny a "strange paradox" because Tocqueville knew of three examples of juries rendering biased verdicts under pressure of majority opinion. The Making of Tocqueville’s Democracy in America, 2nd ed. (Indianapolis, IN: Liberty Fund, 2000), 265-68. Yet, since Tocqueville mentions this paradox himself, it is clear that his positive valuation of the jury is taking a long-range and causally complex view.
24.
Tocqueville, Democracy in America, 318.
25.
Tocqueville, Democracy in America, 303. See also Jack Lively’s discussion of juror education in The Social and Political Thought of Alexis de Tocqueville (Oxford : Clarendon Press, 1965), 181.
26.
Tocqueville, Democracy in America, 315.
27.
Informant Francis Calley Gray reported that American children "never turn to their masters" but "manage everything among themselves, and there is no one of fifteen years old who has not performed a juror’s functions a hundred times." Tocqueville, Journey to America, 57. Tocqueville observed a jury trial among inmates at a juvenile correctional home, a process that he believed subtly reinforced the warden’s authority. George Wilson Pierson, Tocqueville and Beaumont in America (New York: Oxford University Press, 1938), 435.
28.
Tocqueville, Democracy in America, 316.
29.
Tocqueville, Democracy in America, 316.
30.
Tocqueville, Democracy in America, 316.
31.
See, e.g., Tocqueville, Democracy in America, 351.
32.
Jury trials in 1831 disposed of a much larger percentage of cases than today, albeit from a smaller load, and therefore could be seen as a significant mechanism of socialization and legitimation. In antebellum Indianapolis, for example, 92% of all criminal cases went to jury in the 1820s and 1830s. David J. Bodenhamer, "The Democratic Impulse and Legal Change in the Age of Jackson: The Example of Criminal Juries in Antebellum Indiana," The Historian 45 (1983): 218. Because women and African Americans were excluded from jury service, an adult white male’s chance of serving was greater in 1831 than today-in Tocqueville’s estimation, around once every three years. Tocqueville, Democracy in America, 860, Note XVII. Further, since trials could be short and juries often heard more than one case, jurors had greater exposure to legal reasoning and court procedures.
33.
Tocqueville, Democracy in America, 316.
34.
Tocqueville, Democracy in America, 317.
35.
Tocqueville, Democracy in America, 317.
36.
See Pierson, Tocqueville and Beaumont, 383-89; 530. See also Tocqueville, Journey to America, 52-54; 221-22; Travel notebook "F" has extended entries related to the jury: 277-320.
37.
Tocqueville, Journey to America, 52-54. See also Pierson, Tocqueville and Beaumont, 383.
38.
Tocqueville, Journey to America, 295-97.
39.
Tocqueville, Journey to America, 287.
40.
Tocqueville, Journey to America, 286.
41.
Livingston is the only informant Tocqueville mentions by name in Democracy, noting that he "is one of those rare men whom one likes from having read their writings" (p. 16).
42.
Livingston, Project of a New Penal Code for the State of Louisiana ( London: Baldwin, Cradock, and Joy, 1824), 15-16.
43.
Livingston, New Penal Code , 18.
44.
The Federalist, no. 83, and Story, Commentaries on the Constitution of the United States (1833) (Durham, NC: Carolina Academic Press, 1987). On Tocqueville’s reliance on these sources, see Schleifer, Making of Tocqueville’s Democracy, 126.
45.
Tocqueville, Democracy in America, 309.
46.
Tocqueville, Democracy in America, 318.
47.
See Adhemar Esmein, A History of Continental Criminal Procedure with Special Reference to France, trans. J. Simpson (Boston : Little Brown, 1913).
48.
See Ian Hacking’s discussion of the French legislative debates over jury decision rules, which turned on how best to maximize jury capabilities. The Taming of Chance (Cambridge: Cambridge University Press, 1990), chap. 11.
49.
See James W. Garner, "Criminal Procedure in France," Yale Law Journal25 (1916): 267.
50.
Tocqueville, Journey to America, 297.
51.
For a participatory democratic gloss on Tocqueville’s account of the jury, see "We the Jury," Dissent (Winter 2008), 19-36. Not mistaken, such frameworks might best be considered neo-Tocquevillian because of what they leave out.
52.
Tocqueville, Democracy in America, 598.
53.
This is a "peculiar pedagogy," in Bruce James Smith’s words. The jury jars the individual out of the private sphere into the public, but also encourages something less than "mature" political liberty. See "A Liberal of a New Kind," in Interpreting Tocqueville’s Democracy in America, ed. Ken Masugi ( Savage, MD: Rowman and Littlefield, 1991), 92-94.
54.
Lieber befriended Tocqueville and Beaumont in Boston and later translated their penitentiary report into English. Paul D. Carrington calls Lieber "the most renowned American law teacher" at the time of his death in 1872. "The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber," Journal of Legal Education 42 (1992): 356. See also James Farr, "Francis Lieber and the Interpretation of American Political Science," Journal of Politics 52 (1990): 1027-49.
55.
Lieber, On Civil Liberty and Self-Government, 3rd ed., ed. Theodore D. Woolsey ( Philadelphia: J.B. Lippincott, 1874 ), 320.
56.
Lieber, quoted in Frank Freidel, Francis Lieber, Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947), 160. "Eighteenth-century American political thought" refers to settled views on the jury held by American political writers from midcentury and persisting through the ratification debates, what Hamilton says in Federalist 83 extend from seeing the jury as a "valuable safeguard to liberty" to seeing it as "the very palladium of free government." The Federalist, 432.
57.
Lieber, Manual of Political Ethics, Vol. 2, 2nd ed., ed. Theodore D. Woolsey ( Philadelphia: J.B. Lippincott, 1875 ), 405.
58.
William E. Nelson, "The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760-1775," The American Journal of Legal History18 (1974 ): 29; Albert W. Alschuler and Andrew G. Deiss, "A Brief History of the Criminal Jury in the United States," University of Chicago Law Review61 ( 1994): 904.
59.
Diary and Autobiography of John Adams, Vol. 2, ed. L. H. Butterfield (Cambridge, MA: Harvard University Press, 1961), 4.
60.
" A Summary View of the Rights of British America," in The Papers of Thomas Jefferson, Vol. 1, ed. Julian P. Boyd (Princeton, 1950), 134.
61.
On the Zenger case, see James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, ed. Stanley Nider Katz (Cambridge, MA: Belknap Press , 1963). On the idea of "jural space," see Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall (Princeton, NJ: Princeton University Press, 1990).
62.
Federal Farmer, Letters IV and XV, in The Complete Anti-Federalist, Vol. 2 , ed. Herbert J. Storing ( Chicago: University of Chicago Press, 1981), 249-50; 320.
63.
Maryland Farmer, Letter IV, in The Complete Anti-Federalist, Vol. 5, ed. Herbert J. Storing (Chicago : University of Chicago Press, 1981 ), 38.
64.
Hegel’s Philosophy of Right, trans. T. M. Knox ( Oxford: Oxford University Press, 1952), 144.
65.
Lieber, Political Ethics, Vol. 2, 405-6.
66.
Lieber, Political Ethics , Vol. 2, 406.
67.
Max Weber , Economy and Society, Vol. 2, eds. Guenther Roth and Claus Wittich (Berkeley: University of California Press, 1978), 656-57.
68.
Robert M.Cover, JusticeAccused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975), 46, 49, 191.
69.
Needless to say, the substantive rationality a jury might press against a judge is not the same thing as justice. Southern juries maintained substantive racist values in the face of Federal desegregation rules in the 1960s.
70.
See Charles Finkel, Commonsense Justice: Jurors’ Notions of the Law (Cambridge, MA: Harvard University Press, 1995), on jurors’ considerable "commonsense" capabilities.
71.
Lieber, Political Ethics , Vol. 2, 406.
72.
Lieber, Political Ethics , Vol. 2, 406.
73.
Lieber, Political Ethics, Vol. 2, 407-9. The controversial nature of Lieber’s position on nullification is demonstrated by his own editor’s scolding footnote on p. 409, warning that the author, in investing the jury with "pardoning power," was treading on "dangerous ground."
74.
Tocqueville was aware of the fact of nullification; he had been told by Judge Coxe in Philadelphia that "jurors generally have a strong repugnance against bringing in a verdict that sends a man to death. They choose the second degree." Journey to America, 312.
75.
Lieber, On Civil Liberty , 234.
76.
Lieber, On Civil Liberty, 234, note 1. See also Political Ethics, Vol. 2, 422, note 1.
77.
Francis Lieber , Encyclopedia Americana ( Philadelphia: Carey, Lea & Carey, 1829), 279.
78.
Tocqueville did recognize the limits on judicial knowledge and writes in similar terms as Lieber about cognitive blinders. Perhaps because he saw the court as a check on majority power, Tocqueville was led to favor these biases over popular faults in the courtroom.
79.
Robert Merton, Sociological Ambivalence and Other Essays (New York: Free Press, 1976), 19-28.
80.
John Hardwig , "The Role of Trust in Knowledge," The Journal of Philosophy88 (1991 ): 707.
81.
Naomi Scheman, "Epistemology Resuscitated: Objectivity as Trustworthiness," in Engendering Rationalities, ed. Nancy Tuana and Sandra Morgen ( Albany: SUNY Press, 2001), 33.
82.
Epistemology of democracy seeks to understand how institutions engage, mobilize, and use the knowledge and cognitive abilities of an inclusive rather than exclusive range of actors to reach decisions and solve social problems. See Elizabeth Anderson, "The Epistemology of Democracy," Episteme 3 (2006): 8-22.
83.
Such struggles were part of a larger battle over judicial authority Tocqueville does register, mentioning "disastrous results" that may follow the "hidden tendency in the United States that leads the people to curtail the power of the judiciary." Democracy in America, 309.
84.
Mark DeWolfe Howe, "Juries as Judges of Criminal Law," Harvard Law Review52 (1939): 616. See also Jeffrey Abramson’s excellent discussion in We, the Jury (Cambridge, MA: Harvard University Press, 2001), 82-85.
85.
In Commonwealth v. Porter (1845), Chief Justice Lemuel Shaw noted that the constitution guaranteed "the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit" and argued that transferring this right from judge to jury would violate that guarantee. Quoted in Howe, "Juries as Judges," 607.
86.
Note, "The Changing Role of the Jury in the Nineteenth Century ," The Yale Law Journal (1964): 177.
87.
Note, "The Changing Role of the Jury," 179.
88.
Admitting that questions of law often arise in general verdicts of guilty or not guilty, the court in Commonwealth v. Anthes (1855) nevertheless reaffirmed the logic of the earlier Porter decision that set off the struggle and ruled it unconstitutional to allow the jury more formal authority to decide the law. Howe, "Juries as Judges," 610; Note, "Changing Role," 183.
89.
Sparf and Hansen v. United States, 156 U.S. 51, 101-2 (1895).
90.
Sparf, 168-77.
91.
See Morton J. Horwitz, The Transformation of American Law 1780-1860 (New York: Oxford University Press , 1992), and William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society 1760-1830 (Cambridge, MA: Harvard University Press, 1975) on the economic dimensions of this struggle. Both relate the demise of jury authority in the courtroom-especially in civil trials-to needs for predictability and control pressed on the political system by American business interests.
92.
See Lieber, On Civil Liberty, 238, and "The Unanimity of Juries," The American Law Register15 (1867): 727-32.
93.
Lieber, On Civil Liberty , 234-35, note 1.
94.
Duncan v. Louisiana 391 U.S. 145, 188 (1968).
95.
The Art of Being Free: Taking Liberties with Tocqueville, Marx, and Arendt (Ithaca, NY: Cornell University Press, 1997), 58. See Archon Fung and Eric Olin Wright, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (London: Verso, 2003).
