Think about the legitimate limits on government overreach allowed in most social contract theory: checks and balances, judicial review, sunshine commissions, freedom of speech, an independent press, a bill of rights, elections, protests, and even revolution. Is a jury equal in impact and importance? Absolutely. As Dwyer argues,
If jury trials as a rule produce sounder results than we can count on in elections--which I believe they do--one reason may be the quality of information given to the citizens who must decide. In contrast to the chaos and mendacity of much political campaigning, and to the scattergun delivery of thirty-second television commercials, a jury hears testimony that is kept to the point by an impartial referee, tested by cross-examination, and offered throughout a day. We should be able to learn something valuable from the differences in communication.Dwyer's work was published in 2002, and in the intervening years, a few things have changed. The explosion of news outlets, blogs and social media arguably place governments closer to the citizenry, but at the cost of raising the noise-to-signal ratio. Furthermore, the population has grown, and the recent Supreme Court decision to relax restrictions on corporate electioneering, along with the perpetual growth of K Street lobbying, means that one of the average citizen's most direct influences on government is still through jury service.
With about 1.5 million Americans serving in courtrooms each year, the trial jury achieves a unique dispersal of governmental power. Far from being obsolete, it gains importance as elected officials become more distant from those they represent. When the United States government began, there was one congressman for every 38,000 constituents. Due to population growth, there now is one for every 647,000, a seventeen-fold increase in remoteness; state legislatures have seen a similar change. The jury, by placing decisions directly in the hands of the people, bridges the widening gap between citizens and their government. Our challenge is not just to keep it, but to restore it to full health amid new and difficult conditions.
Now, this doesn't argue for nullification per se. It does, however, place the jury on its proper footing, as an essential component of a functional free society. We'll save Dwyer's thoughts on nullification for another post.
Updated: And those thoughts are found here.