Thursday, July 5, 2012

The Declaration of Independence, Trial by Jury, and Immigration

    Every Fourth of July I re-read the Declaration of Independence to remind myself why brave people agreed to put at risk "our Lives, our Fortunes and our Sacred Honor."
    Beyond its iconic language, the Declaration is a list of the "repeated injuries and usurpations" which justify severing ties with England. I always pause at one of the causes "which impel ...the separation": the King has assented to laws "For depriving us in many cases, of the benefits of Trial by Jury."
    That the "benefits of Trial by Jury" was central to the thinking of the Founding Fathers is apparent not only from the Declaration, but from the Constitution of 1787 as amended by the Bill of Rights in 1791. The right to trial by jury appears in three separate places in the Constitution: Article III, Section 2 (jury trial for crimes), the Sixth Amendment (the right to an impartial jury in criminal prosecutions), and the Seventh Amendment (the right to trial by jury in civil cases). 
    For the revolutionaries of 1776 and the later Constitution writers, trial by jury was integral to a free society. The point of trial by jury is that important legal decisions, such as guilt or innocence, should not be made by government officials--judges--but by the community which the jury represents. In our hurried lives we may grumble when we receive a notice to report for jury duty, but it is worth pausing at least once a year to appreciate the high importance Jefferson and his contemporaries attached to trial by jury.
   To their credit, in recent years appellate courts have endeavored not to stray from the jury trial message in the Declaration and the Constitution. In cases such as U.S. v. Gaudin, 515 U.S. 506 (1995) and Apprendi v. New Jersey, 530 U.S. 466 (2000),  the Supreme Court has emphasized that juries and not judges must make the critical factual determinations at trial, and the New York Court of Appeals has held that even in civil cases a jury's announced verdict is not final until we receive the assurance of its accuracy provided by polling the jury. Duffy v. Vogel, 12 N.Y.3d 169 (2009). 
    It is generally not noted that the Declaration of Independence also has something to say about a current political issue, immigration. The Declaration notes that "We have reminded [our British brethren] of our emigration and settlement here," and complains that the King "has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."
   Jefferson and others understood the immigrant roots of the thirteen colonies, understood the importance of continuing immigration, and understood the societal importance of "foreigners" becoming citizens. Here, too, the Declaration has something to tell us 236 years later.     

1 comment:

  1. I also try to read the Declaration every July 4; I invariably tear up when reading the last line.

    And while the Declaration has something to tell us about immigration, it does not tell us everything on the subject. As the late Representative Barbara Jordan—who headed a bipartisan Commission on Immigration Reform—testified to Congress in 1995: "Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave."

    Very few Americans today disagree with Jefferson's understanding of the importance of continuing immigration. But many Americans think that current immigration policy lacks credibility.