(Tom speaks only for himself in this blog and not for the Court.)
Not long after the American Revolution, America had an observer from France. You see, the French were also interested in having a revolution. Alexis de Tocqueville was that observer and based upon what he observed he wrote “Democracy in America,” a classic.
The book discusses American’s passion for trials by jury. His discussion of trial by jury in America was brief, but just enough to develop one good idea. In de Tocqueville’s view, juries were the way Americans governed themselves directly and not by representation. His observation is so profound it deserves repeating.
Juries are the way Americans govern themselves directly and not by representation.Alexis de Tocqueville
Although the role of juries is certainly limited, there is no question that facts are determined as the people see them.
One illustration of how people continue to govern directly is in the area of governmental tort liability. Where juries regularly render large verdicts against the State for failing to supervise felons or for allowing foster children to be sexually abused, they are governing directly.
They are, in a sense, punishing the State for its failure. They are sending a message to their elected representatives, “we the people will not tolerate unsupervised felons on parole or the State’s failure to properly administer the foster care system.”
Unfortunately, instead of listening to the people, the reaction of elected officials is often the opposite. The natural response by those elected seems to be to circle the wagons and fight the will of the people. Instead of recognizing the jury system as an important forum for the collective body of the people to declare its view, those elected often do the opposite. They say the people are out of control and attempt to grant immunities to curtail the people’s ability to govern directly and not just by representation. Immunity can come in increments. Procedural barriers and limits on who and how much may be recovered are merely forms of incremental immunity.
In drafting the Washington State Constitution, our founders used powerful language in guaranteeing what they considered a fundamental right. “The right of trial by jury shall remain inviolate.” Wash. Const. art. I, § 21. As I have said before, the brilliance of our constitution is in its checks and balances. Juries provide a useful check not only on the judicial branch but the other branches as well. Those who will usurp the power of the people will always advance good reasons and the best of intentions for doing so. We should be ever so skeptical of those who advocate for immunity of any kind; with immunity comes the power to act with impunity and in disregard for the right of the people to govern directly.