Amicus Curiae Brief — Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez, Petitioners v. United States

No. 25-166

In the Supreme Court of the United States

___________

JOSE JOYA PARADA, OSCAR ARMANDO SORTO ROMERO,

MILTON PORTILLO RODRIGUEZ, AND JUAN CARLOS

SANDOVAL RODRIGUEZ, PETITIONERS,

v.

UNITED STATES OF AMERICA

___________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________

BRIEF OF AMICUS CURIAE

PROFESSOR WANLING SU IN

SUPPORT OF PETITIONERS

___________

Eamon P. Joyce

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

Jacob Steinberg-Otter

Counsel of Record

Kimberly R. Quick*

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jacob.steinbergotter@sidley.com

Counsel for Amicus Curiae

(Additional counsel listed on inside cover)

Sarah Lahlou-Amine

PRO BONO INSTITUTE

1032 15th Street, N.W.,

No. 407

Washington, D.C. 20005

(202) 729-6983

* Supervised by principals of

the firm who are members of

the District of Columbia bar

Counsel for Amicus Curiae

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

QUESTION PRESENTED .......................................... 1

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I. Practices from before and during the

Founding era confirm that twelve jurors

defined the constitutional minimum. .................. 3

A. The Carolinas’ constitutions .......................... 4

B. The contrasting treatment of enslaved

persons ............................................................ 5

C. North Carolina’s 1793 reform ........................ 7

II. Founding-era legal authorities understood

the right to a “jury” to require twelve

jurors. ................................................................... 8

A. Dictionaries and treatises............................... 8

B. Understanding at the ratification

debates........................................................... 10

III. Early

American

courts

interpreted

constitutional guarantees to a jury as

mandating twelve members. .............................. 12

A. The New Jersey Supreme Court’s

decision in Holmes v. Walton........................ 12

B. Other Founding-era decisions ...................... 15

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Alden v. Maine,

527 U.S. 706 (1999) ........................................... 9

Alleyne v. United States,

570 U.S. 99 (2013) ............................................. 3

Cancemi v. People,

18 N.Y. 128 (1858)........................................... 19

Carpenter v. State,

5 Miss. 163 (High Ct. Err. & App. 1839) ........ 17

Colgrove v. Battin,

413 U.S. 149 (1973) ..................................... 2, 16

Emerick v. Harris,

1 Binn. 416 (Pa. 1808) ..................................... 18

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ............................. 17

Ware ex rel. Jones v. Hylton,

3 U.S. (3 Dall.) 199 (1796)............................... 15

Kinloch v. Harvey,

16 S.C.L. (Harp.) 508 (S.C. Ct. App. L. &

Eq. 1830)............................................................ 5

State ex rel. Kohne v. Simons,

29 S.C.L. (2 Speers) 761 (S.C. Ct. Err.

1844) .......................................................... 5, 6, 7

Labowe v. Balthazor,

193 N.W. 244 (Wis. 1923) ............................... 18

Larillian v. Lane & Co.,

8 Ark. 372 (1848) ............................................. 18

S. Union Co. v. United States,

567 U.S. 343 (2012) ........................................... 3

iv

TABLE OF AUTHORITIES

Page(s)

State v. Ben,

8 N.C. (1 Hawks) 434 (1821) ............................. 8

State v. Burket,

9 S.C.L. 155 (S.C. Const. Ct. App. 1818) ........ 18

United States v. Haymond,

588 U.S. 634 (2019) ........................................... 3

United States v. Smith,

18 U.S. (5 Wheat.) 153 (1820) ......................... 16

Vaughn v. Scade,

30 Mo. 600 (1860) ............................................ 19

Williams v. Florida,

399 U.S. 78 (1970) ............................. 1, 2, 15, 16

Work v. State,

2 Ohio St. 296 (1853)....................................... 18

CONSTITIONAL PROVISIONS

U.S. Const. art. III, § 2, cl. 3 .............................. 14

N.J. Const. of 1776, art. XXII ............................ 13

Fundamental Consts. of Carolina, art. 69

(1669), reprinted in 1 Bernard Schwartz,

The Bill of Rights: A Documentary History

(Leon Friedman & Karyn Gullen Brown

eds., 1971) .......................................................... 4

STATUTES

Act Concerning Servants and Slaves, ch. 24,

§ 48, reprinted in Acts of the North

Carolina General Assembly, 1741, 23

Colonial & St. Recs. N.C. 191,

https://tinyurl.com/7y29yppw ........................... 7

v

TABLE OF AUTHORITIES

Page(s)

Act Concerning Servants and Slaves, ch. 46,

§ 11, 1715 N.C. Sess. Laws (repealed

1741), reprinted in Acts of the North

Carolina General Assembly, 1715–1716,

23 Colonial & St. Recs. N.C. 62,

https://tinyurl.com/mr2mc77h .......................... 7

Act to Extend the Right of Trial by Jury to

Slaves, ch. 5, § 1, 1793 N.C. Sess. Laws 38...... 8

Act of Feb. 11, 1775, ch. 623, § 4, reprinted

in Acts of the General Assembly of the

Province of New Jersey (Burlington, N.J.,

Samuel Allinson 1776) .................................... 13

Act of Oct. 8, 1778, §§ 3, 6, reprinted in Acts

of the Council and General Assembly of

the State of New Jersey (Trenton, N.J.,

Peter Wilson ed., 1784) ............................. 12, 13

SCHOLARLY AUTHORITIES

Austin Scott, Holmes v. Walton: The New

Jersey Precedent, 4 Am. Hist. Rev. 456

(1899) ......................................................... 13, 14

Saikrishna B. Prakash & John C. Yoo,

The Origins of Judicial Review,

70 U. Chi. L. Rev. 887 (2003).......................... 14

Terry W. Lipscomb & Theresa Jacobs,

The Magistrates and Freeholders Court,

77 S.C. Hist. Mag. 62 (1976) ......................... 5, 6

Wanling Su & Rahul Goravara,

What Is a Jury?, 103 N.C. L. Rev. 969

(2025) ............................................... 4, 5, 6, 8, 14

Wanling Su, What Is Just Compensation?,

105 Va. L. Rev. 1483 (2019) .......................... 8, 9

vi

TABLE OF AUTHORITIES

Page(s)

OTHER AUTHORITIES

1 Annals of Cong. (1789) (Joseph Gales ed.,

1834) ................................................................ 15

1 Edward Coke, The Institutes of the Lawes

of England (London 3d ed. 1633).................... 10

2 Joseph Story, Commentaries on the

Constitution of the United States (Boston,

Little, Brown & Co. 4th ed. 1873) .................. 10

2 Matthew Hale, Historia Placitorum

Coronae (London, E. Nutt, R. Nutt & R.

Gosling 1736)............................................... 9, 10

3 William Blackstone, Commentaries ................. 9

4 Matthew Bacon, A New Abridgment of the

Law (London, His Majesty’s L. Printers

3d ed. 1768) ..................................................... 16

Charles Warren, Congress, the Constitution,

and the Supreme Court (1925)........................ 15

Giles Jacob, A New Law Dictionary

(London, W. Strahan & W. Woodfall 10th

ed. 1782) ............................................................ 9

John A. Murley & Sean D. Sutton, The

Supreme Court Against the Criminal

Jury: Social Science and the Palladium of

Liberty (2014) .................................................. 11

Joseph Bingham, A New Practical Digest of

the Law of Evidence (London, HolbornHill 1796) ......................................................... 10

Philip Hamburger, Is Administrative Law

Unlawful? (2014) ............................................. 12

vii

TABLE OF AUTHORITIES

Page(s)

Philip Hamburger, Law and Judicial Duty

(2008) ............................................................... 13

Richard Labunski, James Madison and the

Struggle for the Bill of Rights (2006).............. 15

William Barton, Observations on the Trial

by Jury (Strasburg, Pa., Brown &

Bowman 1803) ................................................. 10

QUESTION PRESENTED

Whether this Court should reconsider, and overrule,

Williams v. Florida, 399 U.S. 78 (1970).

INTEREST OF AMICUS CURIAE 1

Amicus curiae Wanling Su is an Assistant Professor

at Indiana University Bloomington whose scholarship

examines the historical foundations of the

constitutional jury right. Professor Su has conducted

extensive archival research into how the Founding

generation understood jury composition, drawing on

ratifying convention records, contemporaneous

treatises, Founding-era legal dictionaries, early state

and federal precedents, as well as surviving records

from the private libraries of the Sixth Amendment’s

drafters.

This research has revealed considerable historical

evidence that was unavailable to the Court when it

decided Williams v. Florida, 399 U.S. 78 (1970). The

Court in Williams stated it could not “discover in the

history and language of the Constitution” sufficient

evidence that the Framers intended to preserve the

right to twelve jurors, characterizing the twelve-juror

tradition as a likely “historical accident.” Id. at 89, 103.

The Court lamented that “the intent of the Framers”

was “an elusive quarry” and that “the very scanty

history” provided “little light either way.” Id. at 92–93,

98.

1

Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae states that no counsel for a party authored this brief in

whole or in part, and no person or entity other than amicus curiae

or her counsel made a monetary contribution to this brief’s preparation or submission. All parties have received timely notice of

the filing of this brief.

2

With the benefit of the ensuing half century, the

historical record has become far less scanty than the

Court believed. In fact, there is substantial evidence of

the Founding generation’s understanding of jury

composition, which the digitization of early American

collections at university libraries and state archives

over the past five decades has made visible. Professor

Su therefore now seeks to share with the Court this

historical evidence that has emerged since Williams,

which demonstrates that the twelve-juror requirement

rests on firmer historical ground than Williams

recognized. Because the Court’s decision in Williams

expressly turned on the perceived absence of historical

evidence supporting the twelve-juror requirement,

this subsequently discovered evidence is directly

relevant to the question now before the Court.

SUMMARY OF ARGUMENT

In Williams v. Florida, this Court concluded that the

historical record was too “scanty” to demonstrate that

the Framers intended the right to a jury to necessitate

the impaneling of twelve jurors. 399 U.S. at 92–93. The

Court could not, at the time, find “a single instance

where concern was expressed for preservation of the

traditional number 12.” Colgrove v. Battin, 413 U.S.

149, 156 n.10 (1973). It presumed that the dearth of

historical evidence could be attributed to the

Founders’ indifference toward the number of jurors

seated for trial. In the Court’s words, “the most likely

conclusion to be drawn is simply that little thought

was actually given to the specific question we face

today.” Williams, 399 U.S. at 98–99.

New evidence has emerged from a variety of sources:

what early American law deliberately excluded from

constitutional protection—trials of enslaved persons—

how contemporary legal authorities understood the

3

right to a “jury,” and how early American courts

interpreted broadly-worded constitutional jury

guarantees. Each source points to the same conclusion:

fewer than twelve jurors meant no jury at all.

This brief responds to Williams’s reliance on

historical evidence—and its explicit conclusion that

such evidence was insufficient. Where a precedent

rests on a factual premise about the historical record

that later proves faulty, scholarly integrity requires

bringing the complete evidence to the Court’s

attention.

ARGUMENT

I. Practices from before and during the

Founding era confirm that twelve jurors

defined the constitutional minimum.

The Court has long looked to early American

practice in expounding the Constitution—including its

jury provisions. See, e.g., Alleyne v. United States, 570

U.S. 99, 111 (2013); S. Union Co. v. United States, 567

U.S. 343, 353 (2012). Compare United States v.

Haymond, 588 U.S. 634, 653 (2019) (Gorsuch, J.)

(considering “practice in the early Republic”), with id.

at 676 (Alito, J., dissenting) (“[T]he Court has time and

again endeavored to draw its understanding of the

jury trial right from historical practices that existed at

the founding and soon afterward.”). On the right size

of juries, early American practice left no doubt: twelve

jurors marked the constitutional floor. The practices of

the Province of Carolina and its successor

governments—particularly

their

contrasting

treatments of enslaved persons versus free white

persons—drive home this point.

4

A. The Carolinas’ constitutions

The evolution of the constitutional practices of the

Province of Carolina and of South Carolina, one of its

successors, from the seventeenth to the eighteenth

century show that twelve jurors was implicit in the

very idea of what a jury is.

The Fundamental Constitutions of Carolina—in

which none other than John Locke had a hand—were

adopted in 1669 and expressly codified the right to a

jury of a particular size. Article Sixty-Nine provided,

in no uncertain terms, that “[e]very jury shall consist

to twelve men.” Fundamental Consts. of Carolina, art.

69 (1669), reprinted in 1 Bernard Schwartz, The Bill of

Rights: A Documentary History 108, 118 (Leon

Friedman & Karyn Gullen Brown eds., 1971).

The requirement of twelve jurors became so

ingrained that it persisted despite the language of

constitutional provisions on juries evolving. South

Carolina’s constitution changed after independence to

drop the explicit reference to “twelve” in favor of more

general constitutional language mirroring that of the

Sixth and Seventh Amendments. But the insistence on

twelve jurors remained unwavering. See Wanling Su

& Rahul Goravara, What Is a Jury?, 103 N.C. L. Rev.

969, 984 (2025). Indeed, in 1794—three years after the

Sixth Amendment was ratified—a South Carolina

court treated language in the state constitution

providing that “[t]he trial by jury . . . shall be for ever

inviolably preserved” to mean that “the rights of the

citizens are to be determined . . . by 12 men.” Zylstra

v. Corp. of Charleston, 1 S.C.L. (1 Bay) 382, 384, 389

(Ct. Com. Pl. 1794).

This

contemporaneous

interpretation

thus

demonstrates

an

important

Founding-era

understanding of constitutional jury guarantees: the

5

phrase “trial by jury” incorporated the twelve-juror

requirement even when an explicit number of jurors is

not stated.

B. The contrasting treatment of enslaved

persons

Because early American legal systems denied

enslaved persons constitutional protections, their

treatment before the law in contrast to free white

persons sheds light on what precisely those protections

entailed. See Su & Goravara, supra, at 984. That

treatment reveals a jury of fewer than twelve was, in

fact, not considered a true “jury” at all.

1. Reflecting a system that refused to recognize their

equal humanity, the jurisprudence of early America

often cast enslaved persons as outside the ambit of the

constitutional order. As one court of the era stated,

enslaved people “have no rights, other than those

which their masters or owners may give them. They

are the property of their masters or owners, and are

considered in this State, in law, as goods and chattels,

and not as persons entitled to the benefits of freemen.”

Kinloch v. Harvey, 16 S.C.L. (Harp.) 508, 514 (S.C. Ct.

App. L. & Eq. 1830). Or as another court stated, “[a]ll

the Acts operating upon slaves directly, and to punish

them, do not fall within the inhibition of the

Constitution.” State ex rel. Kohne v. Simons, 29 S.C.L.

(2 Speers) 761, 768 (S.C. Ct. Err. 1844).

In that vein, North and South Carolina maintained

an institution known as the Courts of Magistrates and

Freeholders—often known colloquially as “slave

courts.” Su & Goravara, supra, at 984. Although they

“functioned for over 150 years, few of their records

seem to have survived.” Terry W. Lipscomb & Theresa

Jacobs, The Magistrates and Freeholders Court, 77

S.C. Hist. Mag. 62, 62 (1976). But the records that

6

have endured provide insight into the procedures that

the Founding generation believed ran afoul of the

constitutional minimum. See id. at 62–63.

Those records reveal that the idea of twelve jurors

was intrinsic to the idea of a jury itself. The Courts of

Magistrates and Freeholders impaneled at least three,

and as many as five, jurors to try enslaved persons and

free persons of color. See Su & Goravara, supra, at 987.

But these “jurors” were not called as much. Rather,

they were referred to as “freeholders” in historical

records. Contemporaneous references to the

institution did not use the term “jury” and certainly

did not refer to individual members as “jurors.”

Indeed, proceedings before the Courts of Magistrates

and Freeholders were uniformly described as non-jury

trials by higher courts, as the number of freeholders

impaneled fell below the minimum required for a

constitutional jury. See id.

2. Especially instructive is the South Carolina Court

of Errors’ decision in Kohne, which held

unconstitutional a statute concerning these courts’

jurisdiction precisely because of the size of the “jury.”

The statute at issue authorized South Carolina to treat

as forfeited by an enslaver any enslaved person who

returned to the State after having ventured north of

the Potomac River. See 29 S.C.L. at 765. In Kohne, the

enslaver of an enslaved woman named Emma

contested a forfeiture verdict rendered by the Court of

Magistrates and Freeholders. See id. at 762, 768. The

enslaver argued that, although the law afforded

Emma no right to trial by jury—and thus permitted

her criminal trial before five “jurors”—his asserted

“property rights” could not be forfeited without a

verdict returned by a jury of twelve. See id. at 768. The

South Carolina Court of Errors agreed. In declaring

the statute unconstitutional, a unanimous court held

7

that a trial before five jurors is “not a trial by jury, in

any sense in which the words have ever been legally

used; neither could a judgment pronounced by them be

regarded as the judgment of her peers.” Id.

The Kohne decision was unequivocal. The words

“trial by jury” in the South Carolina Constitution

meant “trial by twelve good and lawful men of the

vicinage, in the presence of the accused, and by the

oath of a witness.” Id. The “[r]eport of the presiding

judge” accompanying the court’s opinion further stated

that “it is impossible that the rights of property can be

defeated by any proceeding so utterly inconsistent

with a due course of law.” Id. at 762, 764.

C. North Carolina’s 1793 reform

North Carolina’s early practice largely mirrored that

of its neighbor to the south. In 1715, shortly after

Carolina’s partition, North Carolina vested its Courts

of Magistrates and Freeholders with jurisdiction over

offenses committed by enslaved persons. See Act

Concerning Servants and Slaves, ch. 46, § 11, 1715

N.C. Sess. Laws 21, 21 (repealed 1741), reprinted in

Acts of the North Carolina General Assembly, 1715–

1716, 23 Colonial & St. Recs. N.C. 62, 64,

https://tinyurl.com/mr2mc77h.

Those

courts

impaneled a minimum of three “jurors”—again, that

term was not used—and later four, when the

legislature amended the statute in 1741. See id.; Act

Concerning Servants and Slaves, ch. 24, § 48,

reprinted in Acts of the North Carolina General

Assembly, 1741, 23 Colonial & St. Recs. N.C. 191, 202,

https://tinyurl.com/7y29yppw.

But the two Carolinas’ paths diverged in 1793—two

years after ratification of the Sixth Amendment.

Although North Carolina courts continued to hold that

enslaved persons possessed no constitutional rights,

8

the legislature took the extraordinary steps of

transferring jurisdiction over offenses committed by

enslaved persons to county courts and extending by

statute what the state constitution had reserved for

free white persons: the right to trial by twelve jurors.

See Act to Extend the Right of Trial by Jury to Slaves,

ch. 5, § 1, 1793 N.C. Sess. Laws 38, 38 (repealed). For

the first time, the state used the term “jury” to describe

the body sitting in judgment of enslaved persons and

free persons of color. See id.

This legislative change was not a historical accident

but a conscious act reflecting the moral and

constitutional understandings of the time. In

extending to enslaved persons the opportunity to be

tried by twelve, the North Carolina legislature

acknowledged—however imperfectly given the law’s

continued denial of equality to enslaved persons—that

a panel with fewer risked compromising the

impartiality of the verdict and, with it, the

community’s confidence in the result. See Su &

Goravara, supra, at 989–90. The Supreme Court of

North Carolina later remarked that “every time the

Legislature have [sic] touched this subject since the

revolution, it has been for the purpose of improving the

condition of slaves, more especially in admitting them

to the benefit of an impartial trial.” State v. Ben, 8 N.C.

(1 Hawks) 434, 436 (1821).

II. Founding-era legal authorities understood

the right to a “jury” to require twelve jurors.

A. Dictionaries and treatises

Dictionaries and treatises provide another avenue of

historical inquiry into the contemporaneous usage of

the term “jury,” as they capture the prevailing attitude

“with less idiosyncratic risk” than that of a single

remark or opinion. Wanling Su, What Is Just

9

Compensation?, 105 Va. L. Rev. 1483, 1492 (2019).

Legal dictionaries and treatises of the era—the

authoritative sources to which lawyers, judges, and

educated citizens turned—unanimously defined “jury”

as requiring twelve members, and no fewer.

1. Giles Jacob’s A New Law Dictionary enjoyed

unparalleled popularity in American law libraries,

appearing in the private collections of John Adams and

Thomas Jefferson, among many others. That

dictionary defined “Twelve Men” as persons “by whom

and whose oath as to matter of fact all trials pass,” and

it added: “They are otherwise called the jury.” Giles

Jacob, A New Law Dictionary 947 (London, W.

Strahan & W. Woodfall 10th ed. 1782). The entry for

“Jury” also specified that “the certain number” is

twelve and “all the twelve must agree.” Id. at 537.

Jacob’s definition of “verdict” emphasized that “every

one of the twelve jurors must agree, or it cannot be a

verdict,” and that “tales” jurors “supply the places of

such of the jurors as were wanting of the number of

twelve.” Id. at 952, 909.

2. Contemporary publications on English law

confirm this understanding of “jury.” William

Blackstone’s

Commentaries—“the

preeminent

authority on English law for the founding generation,”

Alden v. Maine, 527 U.S. 706, 715 (1999)—stated that

a person could not be “affected either in his property,

his liberty, or his person, but by the unanimous

consent of twelve of his neighbours and equals.” 3

William Blackstone, Commentaries 379 (emphasis

added). Matthew Hale’s History of the Pleas of the

Crown addressed precisely the eleven-juror scenario:

What if “one [juror] goes out of town, whereby only

eleven remain”? 2 Matthew Hale, Historia Placitorum

Coronae 295 (London, E. Nutt, R. Nutt & R. Gosling

1736). His answer: “no verdict can be taken of the

10

eleven, and if it be, it is error.” Id. at 296. The

remaining eleven must “be discharged, and a new jury

sworn.” Id. at 295–96. And Lord Coke explained that

“there must . . . be 12 Jurors for the tryall of all

matters of fact.” 1 Edward Coke, The Institutes of the

Lawes of England 155 (London 3d ed. 1633).

3. Post-ratification American treatises also confirm

this understanding. Joseph Bingham’s 1797 treatise

stated: “on a trial by a petit jury no more nor less than

twelve can be allowed.” Joseph Bingham, A New

Practical Digest of the Law of Evidence 63 (London,

Holborn-Hill 1796) (emphasis added). William

Barton’s 1803 work declared that trials require “a jury

of twelve men, as now established by the constitution.”

William Barton, Observations on the Trial by Jury 10

(Strasburg, Pa., Brown & Bowman 1803) (emphasis

added). And Justice Story wrote that “trial by jury”

means “ex vi termini [by definition], a trial by a jury of

twelve men.” 2 Joseph Story, Commentaries on the

Constitution of the United States 541 n.2 (Boston,

Little, Brown & Co. 4th ed. 1873).

Thus, Founding-era dictionaries and treatises show

that when the Framers guaranteed “trial by an

impartial jury” in 1789 and state legislatures ratified

it in 1791, they used a term with an established

meaning that required twelve jurors.

B. Understanding

debates

at

the

ratification

The public understanding at ratification of the

Constitution mirrored the legal authorities. At

Virginia’s ratifying convention, Governor Edmund

Randolph—also a delegate at the Philadelphia

Convention—defended Article III by noting “[t]here is

no suspicion that less than twelve jurors will be

thought sufficient.” 3 The Debates in the Several State

11

Conventions 467 (N.Y., Jonathan Elliot, 2d ed. 1888)

[hereinafter Debates] (emphasis added). Randolph’s

phrasing suggests that the assumption was so obvious

it did not require argument. No one would even

suspect otherwise. Even Patrick Henry, no friend of

the proposed Constitution, did not question this

understanding. Henry “found danger to liberty in

almost every clause” of the Constitution. John A.

Murley & Sean D. Sutton, The Supreme Court Against

the Criminal Jury: Social Science and the Palladium

of Liberty 32 (2014). Yet he proclaimed without

hesitation that “[t]he unanimous verdict of twelve

impartial men cannot be reversed.” 3 Debates, supra,

at 544 (emphasis added). Henry’s matter-of-fact

reference to twelve jurors was reflected what everyone

in the room understood: juries numbered twelve.

Thomas McKean, the Pennsylvania Supreme

Court’s Chief Justice, made a similarly casual

reference at the State’s convention. While defending

the Constitution’s provision for Supreme Court

appellate jurisdiction, he observed, “Juries are not

infallible because they are twelve in number.” 2 id. at

540 (emphasis added). His point was that even jury

verdicts could be reviewed in some circumstances

because juries sometimes erred, but the fact that he

referred to juries as “twelve in number” without

explanation reveals the shared assumption about

what “jury” meant.

North Carolina’s convention featured remarks by

state judge Samuel Spencer, who declared that “cases

which affect . . . lives and property, are to be decided

in a great measure, by the consent of twelve honest,

disinterested men.” 4 id. at 154 (emphasis added).

Spencer was praising the jury system as a protection

for individual rights. His description of juries as

12

“twelve honest, disinterested men” assumed the

audience understood this as the definition of a jury.

These references are as revealing, if not more, than

elaborate debates. No delegate felt the need to explain

or justify the number. No one questioned whether

“jury” might mean something other than twelve. That

shared understanding was so complete that speakers

could simply invoke “twelve” as a synonym for “jury”

without fear of confusion.

III. Early

American

courts

interpreted

constitutional guarantees to a jury as

mandating twelve members.

A.

The New Jersey Supreme Court’s

decision in Holmes v. Walton

Years before the ratification of the Constitution and

the Sixth Amendment, in the midst of the

Revolutionary War, the New Jersey Supreme Court

struck down a statute authorizing trials of alleged

traitors by six-person juries in Holmes v. Walton

(1780). The case sheds further light on how the

Framers thought of the constitutional right to a jury—

especially since historical evidence shows principal

figures at the Philadelphia Convention and the First

Congress had Holmes on their minds.

1. The threat that New Jersey faced during much of

the Revolution was severe: the State straddled the

border separating the American and British armies,

and smuggling across state lines undermined

American morale while giving the British tactical

advantages. See Philip Hamburger, Is Administrative

Law Unlawful? 152 (2014). In an attempt to address

the British threat, New Jersey enacted the Enemy

Seizure Act of 1778 to target loyalists who smuggled

provisions to British troops and authorize forfeiture of

the goods and property. See Act of Oct. 8, 1778, §§ 3, 6,

13

reprinted in Acts of the Council and General Assembly

of the State of New Jersey app. at 9–11 (Trenton, N.J.,

Peter Wilson ed., 1784).

Critical here, the Enemy Seizure Act permitted

these forfeitures to be decided by juries of only six

persons. See id. § 6 (incorporating by reference the

provisions of the statute enacted February 11, 1775);

Act of Feb. 11, 1775, ch. 623, § 4, reprinted in Acts of

the General Assembly of the Province of New Jersey

468, 470–72 (Burlington, N.J., Samuel Allinson 1776)

(providing for six-member juries). No appeals could be

taken from the verdict, see Act of Feb. 11, 1775, § 9,

and American militiamen who seized goods en route to

the enemy could keep the proceeds from their sale, see

Act of Oct. 8, 1778, § 7. The New Jersey legislature

enacted the Enemy Seizure Act without a single nay

vote. See Austin Scott, Holmes v. Walton: The New

Jersey Precedent, 4 Am. Hist. Rev. 456, 461 (1899).

The Holmes case arose when loyalists John Holmes

and his colleagues were convicted of smuggling under

the 1778 Act and had their property seized. They

petitioned the New Jersey Supreme Court for

certiorari, listing “the unconstitutionality of the trial

with six jurors” as a ground for reversal. Philip

Hamburger, Law and Judicial Duty 414 (2008).

The New Jersey Supreme Court agreed that the law

didn’t pass constitutional muster—and did so based on

a provision describing a right to a jury in only general

terms. The New Jersey Constitution of 1776 provided:

“[T]he inestimable right of trial by jury shall remain

confirmed as a part of the law of this colony, without

repeal, forever.” N.J. Const. of 1776, art. XXII.

Nowhere did the text specify a required number of

jurors. Yet archival sources confirm (the written

decision has not survived) that, in a decision

announced by Chief Justice David Brearley, the court

14

reversed “on the ground that the legislature’s

authorization of six person juries violated the state’s

constitutional guarantee of ‘the inestimable right of

trial by jury.’” Hamburger, Is Administrative Law

Unlawful?, supra, at 152.

The stakes in Holmes v. Walton cannot be

overstated. It was wartime. New Jersey was situated

between the belligerents’ armies. Smuggling posed a

significant threat to the Revolutionary cause. The New

Jersey legislature had acted unanimously to address

it. Yet the court held that constitutional principles

could not be compromised, even in wartime

emergency. The message was clear: the right to a

“jury” meant twelve jurors.

2. Apart from Holmes’s significance of equating a

right to a jury with a right to twelve jurors in its own

right, the decision also exerted a profound and

demonstrable influence on the Framers.

Delegates to the Philadelphia Convention almost

certainly had Holmes on their minds when they

convened in the summer of 1787. See Su & Goravara,

supra, at 1008. Archival evidence indicates the case

was discussed in Philadelphia newspapers and

Convention-era pamphlets. See Saikrishna B. Prakash

& John C. Yoo, The Origins of Judicial Review, 70 U.

Chi. L. Rev. 887, 936 n.184, 939 (2003). Gouverneur

Morris, one of Pennsylvania’s delegates, mentioned

the case in an address to the Commonwealth’s

legislature two years before the Convention. See Scott,

supra, at 464. And, of course, one of the few rights

codified in the document that the Convention

ultimately yielded was that “[t]he Trial of all Crimes,

except in Cases of Impeachment, shall be by Jury.”

U.S. Const. art. III, § 2, cl. 3.

15

What’s more, three of the leading participants in

Holmes went on to play key roles at the Philadelphia

Convention and First Congress. First, Chief Justice

Brearley—who, again, delivered the oral opinion on

behalf of the New Jersey Supreme Court—served as a

representative to the Philadelphia Convention. See

Charles Warren, Congress, the Constitution, and the

Supreme Court 44–45 (1925). Second, New Jersey

Attorney General William Paterson was a U.S.

Senator who served on the conference committee that

reconciled the Sixth Amendment’s language between

the House and Senate. See Richard Labunski, James

Madison and the Struggle for the Bill of Rights 239

(2006). He later became a U.S. Supreme Court justice.

See, e.g., Ware ex rel. Jones v. Hylton, 3 U.S. (3 Dall.)

199, 245–56 (1796) (Paterson, J.) (first Supreme Court

decision to hold a state law unconstitutional). Third,

Holmes’s defense attorney Elias Boudinot served as a

representative in the First Congress, where he

participated in a House committee addressing the

proposal of what ultimately became the Bill of Rights.

1 Annals of Cong. 690–91 (1789) (Joseph Gales ed.,

1834). After their involvement in Holmes, a case that

garnered national attention, it’s doubtful that these

three men would have agreed—without debate—to

drafting of the jury trial right in a manner contrary to

the definition decided by the highest court of their

home state, or in the case of Chief Justice Brearley, the

definition that he himself announced in Holmes.

B. Other Founding-era decisions

The Court in Williams concluded there was

“absolutely no indication in ‘the intent of the Framers’

of an explicit decision to equate the constitutional and

common-law characteristics of the jury.” 399 U.S. at

99. The Court repeated this presumption three years

later: “constitutional history reveals no intention on

16

the part of the Framers ‘to equate the constitutional

and common-law characteristics of the jury.’” Colgrove,

413 U.S. at 156 (quoting 399 U.S. at 99). On this

foundation—the supposed distinction between

constitutional juries and common law juries—

Williams built its holding that the Sixth Amendment

permits fewer than twelve jurors.

That foundation crumbles under historical scrutiny.

When the constitutional text used the term “jury”—a

term with a precise common law meaning—

eighteenth-century canons of construction required

reading it according to that meaning. And early

American courts uniformly applied these canons to

imbue general constitutional provisions codifying a

right to a “jury” with the term’s common law meaning.

1. Chief among contemporary interpretive principles

was that when a legal text uses a term with a settled

common law meaning, that term carries its

established definition. This principle appeared, for

instance, in Matthew Bacon’s A New Abridgment of the

Law, where he stated: “If a Statute make use of a Word

the Meaning of which is well known at the Common

Law, such Word shall be taken in the same Sense it

was understood at the Common Law.” 4 Matthew

Bacon, A New Abridgment of the Law 647 (London, His

Majesty’s L. Printers 3d ed. 1768).

This principle of interpretation was common fare in

early America. Justice Story and Chief Justice

Marshall, for example, applied this principle to

constitutional

interpretation.

Justice

Story

emphasized that when the Constitution uses common

law terms, their “definitions are necessarily included,

as much as if they stood in the text.” United States v.

Smith, 18 U.S. (5 Wheat.) 153, 160 (1820). Thus, the

constitutional text need not explicitly define “jury”

because the contours of the term were already well

17

defined within the common law. Chief Justice

Marshall agreed. If a word had a known meaning

“when the [C]onstitution was framed[,] . . . [t]he

[constitutional] convention must have used the word

in that sense.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

190 (1824). The presumption was strong: established

legal

meanings

governed

constitutional

interpretation.

The word “jury” had a well-known meaning at

common law by 1791. Legal dictionaries, treatises, and

judicial guidebooks defined it as requiring twelve

members. The Founders would have expected that

meaning to carry into the Sixth Amendment’s text.

2. Early state courts applying these interpretive

principles confirmed this understanding. When state

courts faced the question of whether their state

constitutional jury guarantees—each worded similarly

or identically to the Sixth Amendment—incorporated

the common law twelve-juror requirement, they

answered uniformly in the affirmative. These

decisions provide valuable evidence of how the

Founding generation understood constitutional jury

language.

The Mississippi Supreme Court clearly articulated

this principle, vowing to “recur to the provisions of the

common law” to understand what the constitutional

framers intended. Carpenter v. State, 5 Miss. 163, 166

(High Ct. Err. & App. 1839). Because “[a]t common law

the number of the jury . . . could never be less than

twelve,” the constitutional provision incorporated that

requirement. Id. The court stated the general rule:

“where terms used in the common law are contained in

a statute or the constitution, without an explanation

of the sense in which they are there employed, should

receive that construction which has been affixed to

them by the former.” Id. at 166–67.

18

The Ohio Supreme Court employed the same

approach. Examining its constitution’s declaration

that “the right of jury trial is recognized to exist,” the

court asked: “What, then, is this right? It is nowhere

defined or described in the constitution.” Work v. State,

2 Ohio St. 296, 302 (1853). Looking to history, the

court concluded that, “beyond controversy the number

of the jury at common law . . . must be twelve.” Id. at

304. The court accordingly reversed a verdict rendered

by fewer than twelve jurors.

State after state reached the same result. Arkansas

declared that “when the convention incorporated the

provision into the constitution . . . , they most

unquestionably had reference to the jury trial as

known and recognized by the common law.” Larillian

v. Lane & Co., 8 Ark. 372, 374 (1848). Because “the

common law jury consisted of twelve men,” the

constitutional provision required the same. Id. at 375.

So too in Pennsylvania. When its 1776 constitution

provided “the parties have a right to trial by jury,

which ought to be held sacred,” its high court reasons

that this required “that all trials shall be by twelve

men.” Emerick v. Harris, 1 Binn. 416, 426 (Pa. 1808).

Courts in South Carolina and Alabama likewise

recognized that “every lawyer knows” or that it is “well

understood” that juries consist of twelve members.

State v. Burket, 9 S.C.L. 155, 155 (S.C. Const. Ct. App.

1818). And, Wisconsin’s Supreme Court echoed this

agreement: “the meaning of the language used in our

Constitution must be gleaned from the common law,”

which required twelve jurors. Labowe v. Balthazor,

193 N.W. 244, 245 (Wis. 1923).

Missouri’s Supreme Court explicitly acknowledged

this pattern when it observed that courts across the

early republic were “unite[d] in declaring that where

there is a constitutional guaranty of the right to trial

19

by jury, twelve is the number of which the jury must

be composed.” Vaughn v. Scade, 30 Mo. 600, 604

(1860).

Several courts further underscored the risks of

departure from that understanding. The New York

Court of Appeals cautioned that “allow[ing] . . . any

number short of a full panel of twelve jurors” “would

be a highly dangerous innovation” that “ought not to

be tolerated.” Cancemi v. People, 18 N.Y. 128, 138

(1858). New Hampshire’s Supreme Court observed

that “[a] jury for the trial of a cause was a body of

twelve men,” adding that “no such thing as a jury of

less than twelve men, or a jury deciding by less than

twelve voices, had ever been known.” Opinion of

Justices, 41 N.H. 550, 551–52 (1860).

The pattern demonstrates how the Founding

generation’s rules of construction operated in practice.

State after state applied Bacon’s canon: when a

constitution uses a common law term without defining

it, courts must give it the meaning it had at common

law. Every court that applied this rule to

constitutional jury guarantees reached the same

conclusion—twelve jurors were required.

An attempt to distinguish between the common law

meaning and the constitutional meaning of the word

“jury” would have startled eighteenth-century

Americans who understood, both pragmatically and

legally, that a jury in a constitutional court required

twelve people. This is even more so since the text of the

Sixth Amendment itself refers to criminal trials—a

core common law proceeding. When the Framers who

drafted the Sixth Amendment in 1789 (and the state

legislatures that ratified it in 1791) guaranteed

criminal defendants “trial by an impartial jury,” they

used a term of art with a fixed and well-understood

meaning. That meaning required exactly twelve

20

jurors, as confirmed by the consistent application of

Founding-era interpretive principles in early state

courts.

CONCLUSION

The petition for certiorari should be granted.

21

Respectfully submitted,

/s/ Jacob Steinberg-Otter

Eamon P. Joyce

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

Jacob Steinberg-Otter

Counsel of Record

Kimberly R. Quick*

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jacob.steinbergotter@sidley.com

Sarah Lahlou-Amine

PRO BONO INSTITUTE

1032 15th Street, N.W.,

No. 407

Washington, D.C. 20005

(202) 729-6983

* Supervised by principals of

the firm who are members of

the District of Columbia bar

Counsel for Amicus Curiae