The People's Peremptory Challenge and Batson: Aiding the People's Voice and Vision Through the Representative Jury

Abstract

Using the metaphor of the People as a body, this article argues that the jury acts as the People's eyes and voice. It draws upon recent political science literature to describe the difference between "ocular" and "vocal" democracy and the conditions for each occurring. It concludes that a racially and otherwise diverse jury promotes those conditions. Consequently, if Batson is seen as aspiring to such diversity, then there are strong theoretical justifications for Batson. The piece also discusses a diverse jury's role in unifying the parts of the People's body, in combating political leader's manipulative scorn for the People, and in humbling those leaders -- all aspects of ocular democracy. Additionally, the piece finds evidence of support for a theory of ocular democracy and the jury in American history leading up to the Bill of Rights and in the structure of that Bill, pointing out the relevance of these matters for protecting of the jury trial right and today viewing it as a right to a diverse jury. Finally, in discussing vocal democracy, which others (unlike with ocular democracy) have addressed in the Batson context, the piece discusses the special political value of jury deliberation not only in the jury room but in the changed broader political behavior of the jurors long after the trial ends.

Keywords: Batson, jury, deliberative democracy, ocular democracy, vocal democracy, the People, political participation, Bill of Rights, humbling, humility, scorn, scorning, candor, equality, egalitarianism, event, eventfulness, solidarity, confrontation, gaze, revelation, solidarity, eyes

JEL Classification: A10, D70, K14, Z00