Lyle Denniston looks at an issue that California is debating: If noncitizens are considered “persons” under the 14th Amendment’s guarantee of legal equality, should they have the right to serve on juries?
“To the members of the California State Assembly: I am returning Assembly Bill 1401 without my signature. Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship. This bill would permit lawful permanent residents who are not citizens to serve on a jury. I don’t think that’s right.”
– California Governor Edmund G. Brown Jr., in a veto message on Monday. (Constitution Daily discussed this legislation in a column last month about its sponsor, Democratic Assemblyman Bob Wieckowski.)
WE CHECKED THE CONSTITUTION, AND…
Individuals who are living in the United States but are not citizens have been guaranteed, for generations, a constitutional right to be treated equally. And that promise even applies, in some situations, to noncitizens who entered the country illegally and then stay. Noncitizens are considered “persons” under the 14th Amendment’s guarantee of legal equality. But the full range of rights that a citizen has does not extend to noncitizens, even if they have a legal right to live in this country.
California—a state with a huge population of noncitizens—is going through a broad cultural experiment of including immigrants, both legal and illegal, in more opportunities in society. Noncitizens can now practice law, they can get driver’s licenses, and they even have some protection from being detained and handed over to federal authorities merely because they are not here legally.
But the state’s governor has now put one opportunity out of immigrants’ reach, with his veto of a bill that would have allowed those who have permanent legal resident status to do jury duty. It was the most controversial of the recent changes, and advocacy groups representing noncitizens did not seek to put political pressure on Governor Brown to sign the measure, as they had done with other proposals. No effort will be made in the legislature to try to override the veto, its backers said.
In turning down the measure, Governor Brown put jury duty in the same civic category as voting. And, of course, no state allows noncitizens to vote. For that matter, no other state allows noncitizens to serve on juries, and that is not an issue being pushed actively in other states.
Conceivably, some noncitizen who is charged with a crime might try to make a point that the 14th Amendment’s requirement of legal equality should assure that the jury in that case could not exclude all noncitizens. But that argument probably would fare no better than a claim by a noncitizen that having to obey a state’s laws entitles that person to have a right to vote to influence what laws get passed.
The Constitution generally leaves the definition of the right to vote to state governments, but they may not deny it based on the forbidden categories, such as race or gender. In fact, the Constitution itself does not explicitly confer a right to vote on anyone, although several provisions obviously protect that right once a state has made it available.
The text of the Constitution does not even mention a right to serve on juries, even though the Sixth Amendment does guarantee that juries in criminal cases are to be “impartial.” At least by implication, that does mean that there will be juries and that the Constitution sets some limits on how they can be composed. Courts have interpreted the amendment to mean that a person on trial for a crime has a right to be tried by a jury of “peers.” But there is no guarantee of proportional representation on juries for different identifiable groups within the community.
The controversy that arose over the California legislature’s attempt to open jury service to permanent legal residents was entirely predictable, because many people do place that kind of opportunity on a pedestal along with the right to go to the polls, and they are strongly protective of both.
But that very stature also made the idea attractive to people who genuinely believe that noncitizens are valuable contributors to the functioning of American society, and are entitled to at least some measures of equality. And more generous advocates of equality for noncitizens are even inclined to include immigrants who reached this country illegally as capable of being worthy members of society—although even those who favored jury duty for noncitizens were not willing to include undocumented immigrants in the bill.
With an ongoing national debate about updating and reforming the nation’s immigration laws, and with states moving in different directions in passing laws to deal with those who entered illegally, there is now a lively parallel conversation going on about what the Constitution should be understood to say about the noncitizens who have opted to make America their home.
As is often true in the nation’s social experiments, California is out in front on this one, too, and the rest of the nation can look on from the outside to see how it all works out.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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