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Southern California Law Review



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This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases-landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union, which it never did. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.

The Article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. While racism was present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights. To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this Article fills out an under-appreciated history of the jury in the mainland United States during the Gilded Age and Progressive Era. Many histories of the jury skip from the adulation of the institution at the Founding to the Warren and Burger Courts' decisions over 150 years later that racial and gender discrimination injury service were unconstitutional and that the criminal petit jury was a fundamental right. But the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court then held that states should not be forced to "straight jacket" themselves, in the Court's words, to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment with more efficient criminal and civil procedure. Leaders of the anti-jury movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about colonial governance of the new territories helps enrich our understanding of both.

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