This Tuesday I’ll be participating in a very cool symposium on Originalism and the Jury hosted by the Ohio State Law Journal. We’ll discuss the Sixth and Seventh Amendment jury trial rights, their original meanings, and to what extent courts should or are likely to match the modern jury trial right to what existed at the time of the framing. The symposium is notable for the unusually diverse perspectives of the speakers: It features judges, professors, and practitioners in roughly equal numbers. Justice Scalia will deliver the keynote address.
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Fucius Pratum says:
Interesting issue. You may be aware of this, but for those playing at home: The High Court of Australia (our (Australia’s) highest court) has dealt with this issue and, although it is not usually convinced by originalism, it used the original meaning of trial by jury to interpret our constitution.
Thus we have a right to a unanimous verdict under the federal constitution, whereas our state courts have allowed majority verdicts for many years.
The case is Cheatle v The Queen (1993) 177 CLR 541.
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November 16, 2009, 2:07 amJosh Blackman says:
Orin, Good luck at the Syposium. If possible, could you ask Justice Scalia about the point David made in this post http://volokh.com/posts/1246932856.shtml about Crawford. When applying all of the Criminal Procedure amendments to the states, including the Confrontation Clause, shouldn’t the relevant originalist/historical inquiry be what the right meant in 1868, and not 1791?
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November 16, 2009, 7:03 amSoronel Haetir says:
The 7th amendment gets ignored all the time. Probably a good thing but even at the federal level it isn’t taken seriously.
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November 16, 2009, 8:57 amDjDiverDan says:
Given that the origin of the right to a jury trial, the Magna Carta, was at least in substantial part intended to allow juries to nullify unjust laws of the King, I find it hard to believe that Courts which have worked so hard to suppress jury nullification would ever be sanguine about returning the right to jury trial to its origins.
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November 16, 2009, 1:38 pmTim says:
Make sure you meet Dean Bruce Smith from the University of Illinois College of Law! He’s there (thus why we have an alternate lecturer tomorrow in his class).
He’s a great guy. I’m sure you’ll agree.
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November 16, 2009, 5:24 pm