15 Harv. J. L. & Pub. Pol'y 119 (1992)
On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial

handle is hein.journals/hjlpp15 and id is 133 raw text is: ON THE MYTH OF WRITTEN
CONSTITUTIONS: THE
DISAPPEARANCE OF CRIMINAL
JURY TRIAL
JOHN H. LANGBEIN*
We are accustomed to viewing the Bill of Rights as a success
story. With it, the American constitution-makers opened a new
epoch in the centuries-old struggle to place effective limits on
the abuse of state power. Not all of the Bill of Rights is a suc-
cess story, however. While we are celebrating the Bill of Rights,
we would do well to take note of that chapter of the Bill of
Rights that has been a spectacular failure: the Framers' effort to
embed jury trial as the exclusive mode of proceeding in cases
of serious crime.
I. THE CONSTrrUTIONALIZATION OF JURY TRIAL
The Sixth Amendment says: In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime
shall have been committed... .I All is not a word that con-
stitution-makers use lightly. The drafters of the Sixth Amend-
ment used it and meant it. Indeed, the Framers of the
Constitution had already used the same word for the same end
when speaking to the same subject two years earlier. Article III
of the Constitution insists: The Trial of all Crimes, except in
Cases of Impeachment, shall be by Jury .... 2
Two hundred years later, this Constitution and its Bill of
Rights continue to govern our criminal justice system. Indeed,
because the Sixth Amendment has been treated as incorpo-
rated by the Fourteenth Amendment, the federal jury guaran-
tee now governs not only in the federal courts that the Framers
had in mind, but also in the state systems where we process the
bulk of our criminal caseloads.'
Although the texts mandate jury trial for all criminal cases,
* Chancellor Kent Professor of Law and Legal History, Yale Law School.
1. U.S. CONST. amend. VI (emphasis added).
2. Id. art. III, § 2 (emphasis added).
3. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968). State constitutions contain
similar guarantees.

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