by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Health, Education, Labor, and Pensions (HELP) Committee, as well as the Budget Committee, Environment and Public Works Committee, Judiciary Committee and the Special Committee on Aging.
James Madison famously observed in Federalist 39 that our American experiment depends on “the capacity of mankind for self-government.” History has vindicated Madison’s faith in the American people, but we must not grow complacent. Recent Supreme Court decisions, for example, have undermined Americans’ ability to participate in our system of self-government by opening the floodgates to corporate cash in our elections and eliminating the provision of the Voting Rights Act that has protected millions of Americans from discriminatory voting practices. Another institution within our system of self-government – the civil jury – is also under attack and is disappearing, with little fanfare. It is time to sound the alarm.
As I recently explained in the National Law Journal, the civil jury came to the United States with the earliest colonists. It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation. Consequently, the Seventh Amendment protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”
Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law. As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.” The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.