Among the many stacks of paper on my desk, two sit suggestively side by side. One contains assorted personal business, and at the top, a reminder notice from the Office of Jury Commissioner that I must report for jury duty next week. If I might grumble about it, I’m reminded that “[t]he Framers of the United States Constitution considered both the right to a jury trial and the performance of juror service as sacred and necessary to preserve individual freedom,” and that jury service is “a duty and privilege of citizenship, and  a necessary check against government use of the courts to wrongly convict the innocent.” The second stack contains primary documents from my research on the Philippines under U.S. colonial rule. My imprecise document organization system for now involves using post-it notes to label my stacks of paper. This post-it reads “The Jury System.”
If the framers of the U.S. Constitution considered the right to a jury trial an essential check on the government, just over a century later, the framers of the U.S. colonial state in the Philippines considered it a threat to the efficient administration of the law, and to the sovereignty of the American state.
At the turn of the twentieth century, American colonial officials in the Philippines boasted that, under under U.S. rule, the islands' courts would “secure to the people [that] which they most earnestly desire, a pure, honest, and able administration of the law.” In their report to President McKinley, the first civil commissioners sent to the archipelago, wrote back that the people of the Philippines wanted the opposite of “arbitrary penalties,” “private laws,” and “special tribunals.” “In their consciousness,” the commissioners wrote, “it is not political privileges and franchises, but personal and civil rights and liberties, which occupy the foreground.” U.S. claims to legitimate rule of the islands rested, in part, on a claim that Filipino revolutionaries were most concerned, not with national political sovereignty, but rather with gaining the civil rights and liberties that they had been denied under Spanish colonial rule. But while President McKinley instructed the new government in the Philippines to provide many of the guarantees of the Bill of Rights, he did not instruct them to provide for the right to trial by jury.
William H. Taft, first Civil Governor of the islands under U.S. rule, and other officials, believed that Filipinos were not yet ready to exercise the full rights and obligations of citizens in the islands’ courtrooms. U.S. officials had a racialized vision of the U.S. law reform project in the islands, under which particular procedures and institutions would have to await the completion of America’s “civilizing” mission. That bulwark of individual liberty “had no place among an ignorant people,” Taft wrote in Four Aspects of Civic Duty (1906). According to Taft, the jury system called upon ordinary citizens to take responsibility for “the good working of government and for the best interest of society at large.” “It is this sense of justice,” he argued, “which is implanted naturally in the Anglo-Saxon breast, but which is absent in the Porto Rican or Filipino.”
While U.S. territorial policy carved out exceptions to the procedural protections for individual liberties in American law, the U.S. Supreme Court gave that policy constitutional authority. Writing for the majority in Dorr v. United States (1904), Justice Day explained that “whatever other limitations [Congress] may be subject,” it is not obligated to provide “a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated.”
The two stacks of paper on my desk reflect a tension between the apparent inviolability of the jury system in American culture, and the history of U.S. territorial governance and American constitutional law concerning the institution. I’ll need to bring some reading material with me for the hours of waiting that generally come with jury duty, and I still have plenty of documents to work through in my pile of papers marked “The Jury System.” Perhaps I’ll bring those. But I’d be delighted if anyone has suggestions for jury duty day reading on the history of juries in the U.S. or elsewhere. Feel free to post in the comments.
This is my final post for the month. Thanks to Dan, Mary, Karen, and the LHB readers for the chance to be a guest blogger.