In 1958, President Eisenhower declared May 1 to be “Law Day,” and in 1961 Law Day became a law that celebrates the “ideals of equality and justice under law.”
Law Day 2017 was devoted to the Fourteenth Amendment, which says a lot in a mere 52 words. First, it says that “all persons born … in the United States” are citizens of this country. Second, it tells states that they cannot deprive “any person of life, liberty, or property without due process of law, nor deny to any person … the equal protection of the laws.”
This particular amendment wasn’t part of the original Constitution or the Bill of Rights. It is one of the so-called “Civil War” amendments, and on July 6, 1866, New Hampshire became the second state to ratify it, following Connecticut by just a week. It took another two years before the amendment actually became a part of the Constitution on July 9, 1868.
Through a process of judicial legerdemain known as “incorporation,” the Supreme Court has found a lot more in the Fourteenth Amendment than meets the eye. In a series of decisions going back to the 1920s, the Court has held that this amendment doesn’t simply express constitutional platitudes but actually takes the rights guaranteed by the Bill of Rights and makes them applicable to the states through the due process clause. So, for example, the First Amendment may say (which it does) that “Congress shall make no law” limiting freedom of religion, speech, press, and so forth, but since 1925 these rights have been “incorporated” into the Fourteenth Amendment, thereby making them binding not just on Congress but on the states as well.
There is so much to like about this subject that it’s hard to know where to start. It’s tempting to look at candidate Trump’s challenges to the citizenship of children born in this country to undocumented parents (he calls them “anchor babies”), an issue which the Supreme Court has not definitively decided. For this column, however, I will focus on the Sixth Amendment, which guarantees trial “by an impartial jury.” Like the First Amendment, this, too, now applies to all 50 states, along with Puerto Rico, the U.S. Virgin Islands, American Samoa, the Northern Mariana Islands, and Guam.
The right to an impartial jury has had its twists and turns. As recently as 1942, only 28 states allowed women to serve as jurors, and New Hampshire didn’t sign on until 1947. In 1880, the Supreme Court ruled that a state could not exclude blacks from juries, but the “all white” jury was part of the southern way of life throughout much of the twentieth century. In 1982, the Court took an important step when it decided that a defendant’s right to equal protection under the fourteenth amendment was denied when prosecutors used peremptory challenges to exclude jurors because of their race.
This year, the Supreme Court confronted a major conflict between two principles. One, known as the “no impeachment” rule, is that what goes on in the jury room stays in the jury room. The other is that jurors should be impartial.
Suppose a Mexican man is convicted for a sex offense. After the trial, two jurors sign affidavits that during deliberations a juror said, “I think he did it because he’s Mexican.” Has the defendant been denied his right to an impartial jury?
On March 6, the Supreme Court answered “Yes” by a five to three vote. Justice Kennedy’s majority opinion says that where “compelling evidence” shows that a juror voted to convict based on racism, such misbehavior isn’t just ordinary misconduct. Rather it implicates “unique historical, constitutional, and institutional concerns.” In such circumstances, the right to an impartial jury has been denied.
Chief Justice Roberts, Justice Alito, and Justice Thomas, disagreed. Justice Alito argues that “jurors are ordinary people” who sometimes say things they shouldn’t, but that’s no reason to change an “age old” rule that prohibits taking a second look at impartiality based on what went on in the jury room. According to Justice Thomas, the common law “no impeachment” rule was constitutionally frozen in the Sixth Amendment as of 1789, remained there when the Fourteenth Amendment was ratified in 1868, and shouldn’t be changed today.
As we celebrate the Fourteenth Amendment, it is reassuring to know that our system of justice continues to evolve, but the decision raises as many questions as it answers. Suppose it’s a hate crime case and a juror says, “He’s a Muslim, and as far as I’m concerned that makes him guilty.” Or it’s a securities fraud case, and the juror says, “He’s a Jew and that’s all I need to know.” Or it’s a vehicular homicide case, and the juror says, “She was probably looking at herself in the mirror putting on lipstick. We all know women are lousy drivers.”
My guess is that the Court will draw the line at “race” which, according to the Court, includes Hispanics. Just who else fits into that category I will leave to geneticists.