So in a time of war, since the entire country could be taken over and therefore we would lose all of our constitutional rights, is mandatory national service constitutional?

You also assume, without citing to any evidence, that without mandatory jury service, there would be no jurys because not enough people would volunteer.

The results of the OJ trial and the fact that jury service is so hard on the self-employed, make me wonder if there is a better system. What do other countries do?

So in a time of war, since the entire country could be taken over and therefore we would lose all of our constitutional rights, is mandatory national service constitutional?

It would indeed be unconstitutional. Just as it would be unconstitutional to censor anti-government speech even in a situation where the alternative is a takeover by evil totalitarian forces. In both cases, however, unconstitutional action might be justified on moral grounds as a lesser evil than the available alternative.

You also assume, without citing to any evidence, that without mandatory jury service, there would be no jurys because not enough people would volunteer.


I don't assume that at all. In fact, I believe taht the opposite might be true.

As "original meaning" textualists, shouldn't the contemporary understanding of "servitude" as opposed to legal obliged duty be considered here.

Making forced labor a legal duty is not enough to get around the Thirteenth Amendment's ban on involuntary servitude and was not so considered in the 19th century. If it was, state governments could get around it simply by requiring people to perform whatever labor the government and its supporters wanted. The peonage laws, for example, would have had to be upheld rather than struck down, since they were duties imposed by law.

As a general matter, constitutional amendments should not interpreted to obliterate preexisting constitutional rights unless the intent to do so is specifically stated in the text.

What, if I may ask, is the rationale for applying this specifically to rights on one hand, and not to deep constitutional structures on the other hand? (Okay, obvious the normative rationale is that one is more cautious with rights, but is there an interpretive rationale?)

I would additionally note that there is some evidence that the jury trial was not originally understood as a right of the accused, but as a right of the People, as represented through a jury, to dispense justice.

Juries were also seen as guardians of rights that judges either couldn't, wouldn't or shouldn't enforce. Justice Chase refused to review the constitionality of the sedition acts, but it was the jury that the defense lawyers really wanted to have review it.

Of course, the primary use of the 13th Amendment among those with a more liberal than libertarian bent is in support of the decision in Roe v. Wade -- that it is involuntary servitude to be forced to work as an "incubator" against your will. Even assuming that the fetus/zygote/embryo has full rights of a human, the pregnant woman cannot be forced to work to raise it.

If a three-day jury trial is a "close call," then abortion restrictions are no less legal than denying me the right to quit my job after the first day, despite my agreement to work for you for nine months.

As luck would have it, I have jury duty this coming Monday, for the first time ever (I'm 48 years old).

I'll try not to go into it with a big chip on my shoulder.

Taking this line of reason to its logical conclusion, any tax on wages is unconstitutional.

Hmmmm ...

Professor Somin:

I find your arguments about national service and the Thirteenth Amendment very interesting, but there is a certain down-the-rabbit hole quality to them, as they appear to be quite radical and novel, yet you treat them as if they are mainstream (even predicting that the Supreme Court would accept them).

To convince me that this is true, you need more than textual and philosophical arguments. You need history and/or precedent. Did the framers of the Thirteenth Amendment discuss whether it would prohibit a national draft or national service? Has any court addressed the question since 1918? What about popular debates surrounding the various military drafts of the 20th Century? In short, has anybody else agreed with you?

If so, it would enhance your argument to show this; if not, it would enhance your credibility to acknowledge it.

The average length of jury trials is about 3-4 days; the Simpson case was an extreme outlier that should not be used as a basis for determining public policy.

What possible basis is there for claiming that bench trials are more accurate than jury trials? Most empircal evidence suggests the opposite (the "wisdom of crowds") but a definitive answer is impossible.

It is odd, however, to see a libertarian prefer decision-by-government-bureaucrat rather than by ordinary people.

I think there is a interesting theme on this board, with this post and the last post providing a juxtoposition.

On the one hand, one person argue that the community should not impose obligations on the members of the community, i.e, jury duty and conscription, because it is involuntary servitude.

On the other hand, another person argues that personally owned assets are superior to community owned assets because an individual has an economic incentive to provide upkeep and to save his assets, but not community assets.

There is a common theme to both arguments. That is, to ensure to the enduring prosperity of the community, one must provide economic incentives to individuals to provide services that benefit the community as a whole. So, rather than communilize (is that a word?) everything, we should incentivize everything. And the incentives should be positive (economic benefits), not negative (punitive).

Making forced labor a legal duty is not enough to get around the Thirteenth Amendment's ban on involuntary servitude and was not so considered in the 19th century.

The issue here seems to be whether the term "involuntary servitude", as originally understood, admitted implicit exceptions to its plain meaning.

Correct me if I'm wrong, but IIRC, the Thirteenth Amendment is basically a carbon copy of the Northwest Ordinance &its successor statutes in other states; as such, the original meaning of the Thirteenth's language would presumably be that ascribed to terms of the aforementioned statutes sharing such language. (Indeed, as I recall, the drafter of the Thirteenth made a statement to this effect.) Given that, as you've noted previously, states having such statutes also had road service laws, it would appear that the term "involuntary servitude", as used in those statutes, was not understood as encompassing these forms of forced labor.

National service is certainly servitude, but I'd argue that jury service isn't. A juror is taking part in the government; he is part of the judicial branch. Certainly in the 19th century "servitude" was regarded as demeaning, and I can't imagine that the word could be applied to being part of the government. I'd say that if a state decided not to require its congressional candidates to consent to their nomination, and instead to compel them to serve if elected, that would be constitutional, and the same would be true if the electoral college insisted on electing a president who refused to serve, and the secretary of state refused to accept his resignation.

One thing I notice from my reading of these threads is a distinction between public and private service. There is no cited case where involuntary private service is tolerated, but in the public sector several named exceptions seem to lay in a grey area (jury and military come to mind).

I do not have time to do research here at work, but the key may be in the original writers' defninition of "involuntary servitude". Is it conveivable, that by these terms, and in particular "involuntary servitude" they did not include the State as "master?"

By the way, AF above, requests some citation for information on the founders ideas abut conscription. The Congresshional Record from the first decade of the 19th Century reflects how they agoized over the need to recruit for the Navy, ultimately agreeing on the benefits of all volunteer crews, unlike the British Navy that the US emulated in many other ways.

It is my opinion that regardless of whatever other reasons may have been expressed, at heart the early Congress found the idea of compulsory service distasteful, but not unconstitutional.

I feel like we're watering down an anti-slavery amendment to the point where it's going to be interpreted to ban traffic lights any day now.

Polls take from 5 to 30 minutes at most, not days or weeks. Getting someone to serve for a week or two of jury service is much harder than getting them to answer 20 minutes worth of questions on the phone when they're at home in the evening. The greater time commitment required the harder it is to get already employed people to participate. Even replacing their wage might not be enough to attract significant participation.

CEB... from my experience as a prosecutor, I can tell you it depends. If you are recalcitrant enough for any reason, the judge is not going to have you actually serve, because that would not be fair to the parties. But he might do something else to you.

I watched one guy try to be cute and avoid service by categorically stating a variety of beliefs such as that all people arrested by the police are guilty. From his tone and attitude, it was obvious he was saying this solely in order to get out of jury duty. The judge didn't put him on the jury, but he did require the man to come in and sit in the front row of the audience every single day that the jury was there, for as long as the jury was there.

Ilya, I don't mean this as a personal attack at all, as I have a great deal of respect for you, but I have to ask if your opinion of the abilities of judges and juries is based on theory or any practical observations on your part. My own experience in court is that judges are humans too, and while they are, by definition, better educated than the average juror, they are no more nor less likely to be honest, biased, wise, etc. than the random juror.

Polls take from 5 to 30 minutes at most, not days or weeks. Getting someone to serve for a week or two of jury service is much harder than getting them to answer 20 minutes worth of questions on the phone when they're at home in the evening. The greater time commitment required the harder it is to get already employed people to participate. Even replacing their wage might not be enough to attract significant participation.

Of course polls are less work than jury service. But the government surely could attract "significant participation" if they paid the people enough to make it worth their while - just as they attract "significant participation" in the volunteer military by similar methods.

Couldn't the objection to jury service as "involuntary servitude" be mitigated if jurors were *fully* compensated for the direct and indirect costs of their service?

In other words, if I'm a brain surgeon who makes $500 per hour, and I get called to 8 hours of jury service, the Gov't ought to reimburse me $4000 plus per diem plus parking plus childcare (if applicable), etc., etc.

Actually, they are not novel. Critics of the draft and other forced labor programs have been raising similar arguments for over 100 years. That's why the WWI-era cases I discussed in my previous posts arose in the first place.

Good point. But of course, those arguments were rejected. So my original question stands: has anybody else agreed with you?

If not, the follow-up question would be: Why should these arguments be accepted now when they never have been in the past? The answer would have to be either (1) because national civilian service programs of the sort being proposed have never been implemented -- in which case you would have to abandon your opposition to the military draft and retreat from your "plain text" argument -- or (2) because something has changed. The argument that "nobody has ever noticed what the plain text of the Thirteenth Amendment says" isn't going to fly.

Having to sit on a jury is a downright trivial inconvenience compared to other impositions that the courts have stupidly upheld against Thirteenth Amendment challenges, such as having to pay child support for a child that is not biologically yours, or is the product of statutory or actual rape.

Under our courts' 13th Amendment jurisprudence, it violates the 13th Amendment to jail somebody for not paying a private debt.

But, inconsistently, the courts say it doesn't violate the 13th Amendment to jail somebody for not paying child support (a state-imposed debt), even when (a) the child results from the father being raped (either actual rape or statutory rape), or (b) even for a child that is not biologically the child of the purported father, but whose support is forced upon him through paternity fraud reinforced by legal doctrines like the legal presumption of paternity (in some states, the husband is still deemed the father of the child that results when his wife sleeps around with another man) or equitable estoppel (where the cuckolded husband erroneously believes the child is his, takes care of the child, and later is ordered to pay child support for that child when his unfaithful wife later gains custody of the child following a subsequent divorce).

Compare to being forced to pay 21 years of child support payments, having to sit on a jury is trivial.

For an example, an Alabama appeals court ordered a rape victim being to pay one-third of his net income in child support to his rapist, in S.F. v. State ex rel. T.M. (1996) (mother has sex with father while he was asleep, which neither the mother nor the court disputed had occurred or qualified as rape under state law).

If Ilya wants to be outraged by involuntary servitude, he should look into family law. There are plenty of examples in Virginia, in his own backyard, that he could look into, like the fact that Virginia courts enforce a Catch-22 policy of not allowing fathers to challenge excessive child support awards that they cannot afford to pay unless they first put up an (unaffordable) appeal bond for the full amount first before their appeal can even be heard. (See Mahoney v. Mahoney (Virginia Court of Appeals)).

Dave Briggman, himself a Virginia libertarian like Ilya, has experienced such abuses firsthand.

(Note: I am not divorced, am happily married, and don't pay, or owe, child support).

Jury service fits in nicely in the liberal-republican debate about the founding. Jury service, militia service (mandated by early Congressional statute), and the like were all considered important reciprocal duties of citizenship and something in which one would take pride. The idea that the system was just some Rube Goldberg contraption that ran on auto-pilot without anyone doing anything civic minded was absent, though it's quite present in libertarian "thought."

One of the roots of disagreement between libertarians and conservatives is the extent to which one believes that people, pursuing their self-interest, collectively bring about the common good.

One view, echoed in Madison and Adam Smith, is that if a society is properly structured, by pursuing individual self-interest the common good can come about “as if by a visible hand.” Madison in particular seems to say that by counter-balancing self-interests, the evil of faction will be exhausted and only the most just and widely supported policies will likely make it through the hurdles of divided government.

Another, found in Burke and Adams and in Catholic Social Thought, is that self-interest alone cannot do the job. It theorizes that men are not motivated merely by reason, but by some combination of reason, appetities, and more middling feelings (like patriotism or love of justice). These latter feelings can be a great bulwark of the state and society, or its greatest enemy. If the latter are not well harnessed and tutored, mere appetites and reason will permit the greatest evils by moral imbeciles.

I think both of these philosophies have a lot to recommend. But the question becomes, “Is self-interst all that is needed?” Can these systems work well in an age of ideologically motivated men, who can publicly and shameless announce their intentions to support some abstract principle over the society they ostensibly serve? Does it work well, for example, if individuals in free markets generally are not motivated (or at least hindered) by notions of patriotism or honor? Finally, and most directly, does any of this work well if people are not educated about and loyal to the idea of a free society? That is to say, does this Rube Goldberg contraption that is a free market or a constitutionally-limited government (the combination of which we generally think of as a free society), need some external infusion of public-spiritedness to work?

I suggest it does, and I believe the Founders would agree. And I think that many “Classical Liberal” thinkers would likely agree as well. What part of self-interest, for example, says not to steal when I can get away with it? Or seek government subsidies? Or to help another nation undermine my own (so long as I am well rewarded)? Is it not some internal chain, some epiphenomenon of a moral education, that says these actions are beneath my dignity and simply wrong? Does a free society not depend on something more than well-structured institutions and self-interested actvity, but instead on some abstract commitment to the end of a free society as well?

Of course, this is where libertarians hyperbolic focus on the STATE and SERVITUDE misses something important: we owe something to our society, not to pursue national greatness or because it grants us our rights, but because we are born into a world of benefits that we have not contributed to. More important, freedom itself can be extinguished if a small part is not given up for the common benefit. This is why we allow the state to define easements and the like, and we also allow it to impose certain demands without which the entire system would melt down in a type of "collective action" failure no different than any other where collective action is required.

Judges are, on average, better-educated than jurors and more likely to be expert in analyzing evidence and addressing the issues likely to come up in a trial. That's far from definitive, but it is at least some reason to prefer them to jurors.

For most cases, the analysis of the evidence does not require any paricular academic skills that would be conferred by a greater level of education. Instead, most juries are asked to sort through which witnesses were more credible, and which theory of the case was most consistent, issues requiring experience (wisdom, perhaps, as opposed to intelligence?). Further, on any given jury, you will almost certainly have at least a couple of better educated jurors who can take a certain responsibility for any technical data that may be relevant. Also, in terms of highly complex information, what's to say any particular judge will have a better grasp of the evidence than a group of people?

Finally, before I abandon juries for judges, I want a system that requires judges to be appointed on a non-partisan, merit-based system (such as here in Iowa and several other states), rather than being elected (as many states continue to do). Do you think a judge who is elected will ever feel the freedom to make a highly unpopular yet legally correct decision? At the very least, the judge's motives would be subject to question in any controversial case, and we already have too much distrust of the legal system.

I think there's a subtle logical fallacy in your digression about bench trials versus jury trials. Namely it may be (and I believe is) the case that in no single trial is a jury trial superior to a bench trial, and yet a justice system in which jury trials are available to defendants is superior to one in which they are not.

If there was no right to a jury trial then there is no protection from a unjust laws or a capricious judge imposing arbitrary decisions. Even if in any given trial a bench trial is trustworthy it's only because of the possibility of a jury trial that that's so.

The problem I see with claiming that the 13th amendment should block jury service is that it comes into conflict with a person's right to a trial by jury. If a jury cannot be raised to try the person (whether by volunteer or by compulsion), than that person's right to a jury trial is abridged. Further it might be arguable, that in order to enjoy one's right to a trial by jury, one must also take on the obligation of providing jury service when called upon.

Now while the 13th amendment (since it came after the article 3 right to jury) could be interpreted via raw textualism to supersede the right to a jury, I seriously doubt that was ever the intent.

As to why these arguments should be accepted now, even though courts rejected them in the past (mostly in decisions almost 100 years ago), it's because the arguments are right and those courts were wrong. The fact that Courts decided an issue a certain way doesn't prove they were right to do so.

This is a completely unconvincing form of argument. It's not just that courts have rejected your arguments in the past; the elected branches have as well, as evidenced by the fact that they have continually implemented military drafts. The fact that the democratic branches have accepted a practice for over two centuries does tend to prove that it is constitutional, because the Constitution derives its legitimacy from democracy. It isn't conclusive -- see, eg, Brown v. Board of Education -- but it takes a lot more than a plain language argument to overcome.

Brown illustrates this point: It overruled Plessy not in spite of, but because of, the long history of Jim Crow, which it emphatically rejected. Until you are willing to engage with the historical experience of compulsory service in a similar way, your argument won't get off the ground.

You missed on important rationale for jury service--it's a check on the power of the State. Before imprisoning someone, the State must convince a body of citizens that the person is guilty. I think Scalia derided trial by judge as getting a decision by a "lone employee of the State" (or words close to that).

Unfortunately, the right has been diminished by forbiding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

Libertarians should applaud trial by jury. It's one more check on State power.

You want people to do jury duty willingly?

Pay them what their time is worth.

Or say to keep from being ruined by Bill Gates make it something like an income rate that would include 75% of the population.

Unfortunately, the right has been diminished by forbiding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

Petit jurors don't have that right?

Have anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?

You missed on important rationale for jury service--it's a check on the power of the State. Before imprisoning someone, the State must convince a body of citizens that the person is guilty...Unfortunately, the right has been diminished by forbidding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

IANAL, but I think I recall a general discussion on the VC, and the consensus seemed to be that while a sufficiently informed and stubborn juror could not be overturned in practice, jurors did not have the right to ignore positive law. But then again, I thought I saw somewhere else a case where a judge tried to punish a juror who openly supported jury nullification. Maybe somebody with Lexis access could provide a citation?

It's not just that courts have rejected your arguments in the past; the elected branches have as well, as evidenced by the fact that they have continually implemented military drafts. The fact that the democratic branches have accepted a practice for over two centuries does tend to prove that it is constitutional, because the Constitution derives its legitimacy from democracy

You win the prize for best answer.

The very same state legislatures that ratified the 13th amendment simultaneously conducted jury trials with compelled jurors. They understood that they were ratifying an amendment that banned slavery, not one that destroyed their power to compel jurors.

First of all I think you miss the primary value of jury trials. They are not a superior way to decide actual questions of fact (did so and so violate the text of this law). Rather they function as a check against the tyrannical power of the government and a common sense check that stops laws from being used in inappropriate ways. Judges are (rightly) better trained to focus on the law as opposed to the results so may (unhappily) convict some 17 year old boy for having sex with his 17 year old girlfriend under some statutory rape statute. Juries are much more ready to reject truly absurd results and refuse to convict.

---

As far as your interpretive philosophy goes I don't think it makes sense. You take yourself to be governed entirely by the actual textual meaning of the words but how do we determine that meaning? The meaning of words is determined by common usage. Therefore if we discover that it doesn't even occur to anyone that jury service is involuntary servitude this is strong evidence that it isn't contained in the meaning of the term.

Let's give an example that will illustrate what I mean. Suppose after a tragic drowning incident a small town passes the following law, "Any parent who allows their child to play within 20 feet of a bank shall be guilty of a misdemeanor." Now obviously the intent of this law is to prevent parents from letting their children play on river banks but textually it just as much applies to children playing near banking institutions. Does your textualism really require that the court should convict the parent who allows their children to play near the money lending institution in town? In short it just isn't possible to ascribe meaning to textual strings without looking at the context they were created in and the intentions of those creating them.

However, if we accept this point and apply the same reasoning to the thirteenth amendment case I think we would find that the meaning of "servitude" in this context does not include jury service.

Two more quick points.

1) It doesn't matter whether juries technically have the right to refuse to apply the law anymore than arguments about gun ownership being necessary to protect the people from government tyranny are refuted by the fact that it would be illegal to resist a tyrannical government. As the Kevorkian trials prove juries will refuse to convict if they think the sentence would be unfair (whether you agree with what these juries thought or not).

2) I don't think most people even in 2007 would agree that "jury service is a form of involuntary servitude." "servitude" implies an inferior position like that of a servant or slave and jury service lacks that aspect.

3) The usual argument for textualism is that we must abide by the original common meaning of the statute or law. In other words we must apply the law using what the people of the time would have thought the words meant. Now of course there is an ambiguity here, when should we say the people of the time merely failed to realize some of the implications of this meaning (the example with blasphemy laws) and when should we say they understood the meaning differently (my bank vs. bank example above). However, it seems clear that in this case it wasn't merely that it didn't occur to people of the time to ask whether jury service was involuntary servitude but they just didn't take the meaning of servitude to include common community obligations.

Petit jurors don't have that right (to refuse to convict even where the facts support a conviction)?

Have anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?

No, but if a juror tells other jurors that he is holding out because he or she thinks the conviction of the defendant would be imprudent, the judge would remove the hold out and the decision would stand up on appeal.

Under current precedent, petit jurors have the power to nullify, not the right. And they only have the power to mullify as long as they keep quiet or lie about why they are voting the way they are voting.

As to involuntary servitude, if a juror must serve for two weeks every ten years, then the person is effectively taxed 0.38% (2 weeks of service every 520 weeks). Yes, some serve more, but I'd bet if anything, the average is less than that.

An effective tax of .38% is reasonable to secure a right that's clearly set out in the Bill of Rights.

I haven't read the previous comments, so forgive me if someone has already made this point, but jury service -- in the sense of actually being on a jury -- is not mandatory. All that you have to do to avoid it is to tell the judge that you are biased in favor of or against one of the parties. It is mandatory, however, that you show up in order to tell the judge that. Therefore, this does not eliminate the 13th Amendment issue, but it mitigates the nature of the servitude.

Fully Informed Jury Association

From their site

+++++++++++

Juries protect society from dangerous individuals and also protect individuals from dangerous government. Jurors have a duty and responsibility to render a just verdict. They must take into account the facts of the case, mitigating circumstances, the merits of the law, and the fairness of its application in each case. The recognition of the authority and right of jurors to weigh the merits of the law and to render a verdict based on conscience, dates from before the writing of our Constitution, in cases such as those of William Penn and Peter Zenger. Should this right ever be suppressed, the people will retain the right to resist, having an unalienable right to veto or nullify bad and oppressive laws, and in fact then would be morally compelled to do so.

Jurors, as the representatives of the people, hold no personal agenda during any trial and most certainly not the government's agenda. Let us not forget that the prosecutors, judges, arresting officers - and the forensic investigators in most cases - are all a part of and receive their paychecks from government, with personal power bases to build and personal careers to protect through the "productivity" of successful prosecutions resulting in convictions. Jurors have no such stake in the outcome, and are, in fact, the only truly objective individuals in the courtroom.

The role of our jurors is to protect private citizens from dangerous government laws and actions. Many existing laws erode and deny the rights of the people. Jurors protect against tyranny by refusing to convict harmless people. Our country's founders planned and expected that we, the people, would exercise this power and authority to judge the law as well as the facts every time we serve as jurors. Juries are the last peaceful defense of our civil liberties.

Public Defender wrote:

Unfortunately, the right has been diminished by forbidding both grand and petit jurors the same right to use discretion that prosecutors enjoy (i.e., not prosecuting or convicting even where the evidence supports it).

I responded,

Petit jurors don't have that right?

Has anyone ever heard of any juror ever being prosecuted for later admitting he or she used discretion?

Public Defender replies:

No, but if a juror tells other jurors that he is holding out because he or she thinks the conviction of the defendant would be imprudent, the judge would remove the hold out and the decision would stand up on appeal.

Under current precedent, petit jurors have the power to nullify, not the right.

Ah, semantics! While not disagreeing with your interpretation, I'd like to point out that rights that aren't recognized are still rights. (At least says Thomas Jefferson and I! ;-))

This comes up in the context of something that would be far worse (in my opinion, and hopefully the vast majority of all U.S. citizens')...mandatory 2-year "public service" for 19 and 20 year-olds.

I say that even if (God forbid!) such a law were passed in the U.S., it would not mean that every 19 and 20 year-old doesn't have an “unalienable” right to pursue happiness. It merely means that their government and fellow citizens are trampling on that right.

Returning (briefly ;-)) to jury nullification: As I recall from my one stint as a juror at a medical malpractice trial in North Carolina many years ago, I was asked whether I could render a verdict according to the laws of North Carolina (as explained by the judge), rather than my personal feelings. (I said I could, and I did.) My guess would be that, for example, a Prosecutor would ask a similar question in a case such as a medical marijuana case, e.g. "Can you render a verdict in accordance with federal law, rather than your personal feelings...or even California Law?"

My vague recollection was that I was made to take an oath that my answers to questions about my participation as a juror would be true. (Can anybody here say whether or not that is true for North Carolina or other states? That is, are jurors required to take an oath to answer pre-trial questions truthfully?)

P.S. So for the hypothetical federal medical marijuana case above, I would have to ask the Prosecutor, in response to the his or her question, "Do you mean according to the Supreme Law of the Land, the U.S. Constitution…or do you mean according to federal laws as judged by a Supreme Court I hold in contempt, as voted by a Congress I hold in contempt, and as enforced by an Executive Branch I hold in contempt?"

P.P.S. I don't expect ever to be seated as a juror on a medical marijuana case! ;-) And it would be very interesting to see whether such a response would (properly) earn me a Contempt of Court citation! ;-)

P.P.P.S. Of course, I would never have such a snappy comeback in real life.

"Any parent who allows their child to play within 20 feet of a bank shall be guilty of a misdemeanor." Now obviously the intent of this law is to prevent parents from letting their children play on river banks but textually it just as much applies to children playing near banking institutions. Does your textualism really require that the court should convict the parent who allows their children to play near the money lending institution in town?"

Well, the Supreme Court recently ruled in that manner. See PGA Tour vs Martin, in which the Supreme Court decided that the area "inside the lines" during a PGA Tour event was considered to be a "public accomodation."

Let's face it, everyone...the Supreme Court does (and pretty much always has) simply make up whatever they need to achieve their desired outcome.

Supreme Court rules a river bank is a money bank

Any scheme to change the compensation of jurors will inevitably alter the composition of jurors.

How so? The compensation now is ridiculously low. Why would changing it to something much higher, e.g. 1.5 times the local average salary, change the composition of juries? And toward what composition?

Just to give one example, right off the top of my head: Under the current system, people who are self-employed have a tremendous incentive to evade jury service. A lot of that incentive would disappear if jurors were fairly compensated for their time.

OK, that seems right. It would indeed probably change the composition in that way. But I don't under why, "...there will certainly be huge opposition to the change from one side or another."

It doesn't seem to me like it would be clear which "side" would be helped or hurt, especially over a huge range of cases.