Stephen A. Siegel (DePaul University - College of Law) has posted The Constitution on Trial: Article III's Jury Trial Provision, Originalism, and the Problem of Motivated Reasoning (Santa Clara Law Review, Vol. 52, No. 2, 2012) on SSRN. Here is the abstract:
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Article III, Section 2 of the Constitution mandates that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury.” Yet in modern America, bench trials have become a well-accepted feature of the contemporary federal criminal docket. Some of these bench trials occur because defendants, consulting their best interests, waive their right to a jury trial. This seems to be a sensible exception to Article III’s peremptory command. It would be paternalistic not to allow defendants to waive a constitutional requirement presumably created for their protection.
Yet, neither the English common law nor Founding-era practices permitted defendants prosecuted for serious criminal offenses the option of a bench trial. Federal bench trials violate both the Constitution’s text and its original understanding.
Nonetheless, in 1930, in Patton v. United States, a unanimous Supreme Court declared federal bench trials constitutionally permissible. Justice George Sutherland — who strongly believed that the sole goal of constitutional interpretation is to discern and effectuate the Constitution’s original meaning — wrote the Patton opinion. True to form, Sutherland’s Patton opinion maintained that defendants’ jury waivers and federal bench trials for serious offenses were consistent with Article III’s original understanding. However, Justice Sutherland got his history wrong. This Article joins the long list of books and articles questioning the Supreme Court’s use of history as a basis for its decisions. More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists.
This Article is a study of the problem that motivated reasoning presents for the practice of originalist jurisprudence, and to that extent, it is an argument for the desirability of a forthright jurisprudence of “living constitutionalism.”
And from the conclusion:
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[T]his Article has demonstrated the impact of motivated reasoning on historical scholarship and on the use lawyers and judges make of it.456 Motivated reasoning helps set the historians’ research agenda, influences the discovery and interpretation of evidence, and strongly affects the recep- tion and use of historical scholarship by lawyers, judges, and the public.457
These findings raise grave concerns about the viability of originalist jurisprudence as it is practiced by the bench and bar.458 Originalist jurisprudence is supposed to constrain judges, to make constitutional law a matter of empirical dis- covery rather than discretionary judgments that permit judges to read their own values into the Constitution.459 Yet, if judges constantly, even if unconsciously, read their predi- lections into the historical record, originalist practice undermines the very reason originalist theory posits for its existence.460
Moreover, if judges are reading their predilections into the Constitution, whether meretriciously or because of motivated reasoning, we have an evolving Constitution that changes as the judges and their values change.
Highly recommended. Download it while its hot!
