Culture and constitutional law

Balzac v. Porto Rico was not the first time (cf. Dred Scott), nor would it be the last (cf. Roe v. Wade), that a decision repugnant to the Constitution would be made–not by Congress nor by the President–but by the Supreme Court of the United States (SCOTUS). But let’s focus on the Balzac case here: why did SCOTUS decide to deny Jesus Maria Balzac his constitutional right to a jury trial in this historic case? The most charitable reason is legal culture. After all, juries are a “common law” institution originating in medieval England centuries ago, while such newly-acquired U.S. territories like Puerto Rico and the Philippines, former colonies of Spain, followed the Roman or “civil law” tradition of continental Europe. On this view, because Puerto Rico’s legal culture was so different than that of other U.S. territories (where the right to a jury trial did apply), Puerto Rico’s insular government should not be compelled as a matter of constitutional law to adopt a jury system. Or, in the cynical words Chief Justice William Howard Taft, who wrote the Court’s unanimous opinion in this case:

The jury system needs citizens trained to the exercise of the responsibilities of jurors. In common law countries, centuries of tradition have prepared a conception of the impartial attitude jurors must assume. The jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire. One of its greatest benefits is in the security it gives the people that they, as jurors, actual or possible, being part of the judicial system of the country, can prevent its arbitrary use or abuse. Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.

But what about Louisiana? After all, Louisiana–like Puerto Rico and the Philippines–also was a civil law jurisdiction with “compact and ancient communities” (etc., etc.) before the U.S. purchased this Cajun territory from France. In other words, let’s get real, what’s the true reason motivating the unconstitutional outcomes in the Insular Cases? Could it be politics?

Image result for civil law v common law

Credit: Randy Bregman & Marian Hagler

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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