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AN UPSIDE OF ORIGINALISM? JURY SIZE.

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Title: AN UPSIDE OF ORIGINALISM? JURY SIZE.
Authors: RYAN, MEGHAN J.
Source: Journal of Criminal Law & Criminology. Spring2026, Vol. 116 Issue 2, p419-465. 47p.
Subjects: Originalism (Constitutional interpretation), Right to trial by jury, Constitutional law, United States. Supreme Court, Criminal defendants, Criminal law, Courts
Abstract: Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country's unique history of being founded by British rebels, some practices from the time of the Founding--such as recognizing a strong jury right--advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually achieve--at least where criminal defendants are concerned--what are often today considered progressive outcomes. The timely issue of jury size is a good example of this. While a historical approach would focus on our long history of twelve-member juries, the Court's more recent evolving functional approach has allowed smaller juries. Considering that criminal defendants generally benefit from larger juries because they can achieve more accurate outcomes, better represent their communities, and, importantly, allow more chances for hung juries, jury size offers an important lesson about the possible benefits of employing originalism in areas of criminal law and procedure. [ABSTRACT FROM AUTHOR]
Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
Database: Psychology and Behavioral Sciences Collection
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  Data: <searchLink fieldCode="DE" term="%22Originalism+%28Constitutional+interpretation%29%22">Originalism (Constitutional interpretation)</searchLink><br /><searchLink fieldCode="DE" term="%22Right+to+trial+by+jury%22">Right to trial by jury</searchLink><br /><searchLink fieldCode="DE" term="%22Constitutional+law%22">Constitutional law</searchLink><br /><searchLink fieldCode="DE" term="%22United+States%2E+Supreme+Court%22">United States. Supreme Court</searchLink><br /><searchLink fieldCode="DE" term="%22Criminal+defendants%22">Criminal defendants</searchLink><br /><searchLink fieldCode="DE" term="%22Criminal+law%22">Criminal law</searchLink><br /><searchLink fieldCode="DE" term="%22Courts%22">Courts</searchLink>
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  Data: Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country's unique history of being founded by British rebels, some practices from the time of the Founding--such as recognizing a strong jury right--advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually achieve--at least where criminal defendants are concerned--what are often today considered progressive outcomes. The timely issue of jury size is a good example of this. While a historical approach would focus on our long history of twelve-member juries, the Court's more recent evolving functional approach has allowed smaller juries. Considering that criminal defendants generally benefit from larger juries because they can achieve more accurate outcomes, better represent their communities, and, importantly, allow more chances for hung juries, jury size offers an important lesson about the possible benefits of employing originalism in areas of criminal law and procedure. [ABSTRACT FROM AUTHOR]
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  Data: <i>Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.)
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      – SubjectFull: Right to trial by jury
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      – SubjectFull: Constitutional law
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      – SubjectFull: United States. Supreme Court
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      – SubjectFull: Criminal defendants
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              Text: Spring2026
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