Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

Supreme Court briefAug 13, 2026

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No. 25-6623

In the Supreme Court of the United States

___________

HAMED KIAN, PETITIONER,

STATE OF FLORIDA, RESPONDENT

___________

ON WRIT OF CERTIORARI TO THE

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

___________

BRIEF OF AMICUS CURIAE

PROFESSOR WANLING SU

IN SUPPORT OF PETITIONER

___________

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*

Bianca Mona Corgan

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jacob.steinbergotter@sidley.com

* Supervised by principals of the

firm who are members of the

District of Columbia bar

August 13, 2026

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

iii

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

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

ARGUMENT ..........................................................

I. Practices from before and during the

Founding era confirm that twelve jurors

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

A. Pennsylvania did not recognize criminal

juries of fewer than twelve before or at

the Founding. .............................................

B. The Carolinas’ constitutions

presupposed that a jury had twelve

members. ....................................................

C. South Carolina’s contrasting treatment

of enslaved persons confirms that fewer

than twelve jurors was no constitutional

jury. ............................................................

D. North Carolina’s 1793 reform drew the

dividing line between a jury and a lesser

panel at twelve members. .......................... 10

II. Founding-era legal authorities understood

the right to a “jury” to require twelve

jurors. ............................................................... 11

A. Dictionaries and treatises defined “jury”

as a body of twelve members. .................... 11

B. The ratification debates treated twelve

members as inherent in a jury. ................. 14

iii

TABLE OF CONTENTS—continued

C. Justice Wilson’s lectures, read in full,

confirm the twelve-juror requirement. ....

Page

III. Early American courts interpreted

constitutional guarantees to a jury as

mandating twelve members............................ 19

A. The New Jersey Supreme Court’s

decision in Holmes v. Walton

invalidated six-person juries. .................... 19

B. Founding-era interpretive principles

required giving “jury” its settled

common law meaning. ............................... 22

C. State v. Starling arose from South

Carolina’s resistance to Reconstruction,

not the settled meaning of “jury.” ............. 25

CONCLUSION ....................................................... 29

TABLE OF AUTHORITIES

Page

CASES

Alden v. Maine,

527 U.S. 706 (1999) ........................................ 12, 18

Cancemi v. People,

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

Carpenter v. State,

5 Miss. (4 How.) 163 (High Ct. Err. & App.

1839).................................................................

Colgrove v. Battin,

413 U.S. 149 (1973) ............................. 2, 16, 17, 22

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................

Emerick v. Harris,

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

Foote v. Lawrence,

1 Stew. 483 (Ala. 1828)...................................

Gibbons v. Ogden,

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

Holmes v. Walton,

(N.J. 1780) ......................................................

Kinloch v. Harvey,

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

1830)................................................................

State ex rel. Kohne v. Simons,

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

1844)............................................................. 8, 9, 10

Larillian v. Lane & Co.,

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

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................................

Op. of Justs.,

41 N.H. 550 (1860)..........................................

Ramos v. Louisiana,

590 U.S. 83 (2020) ..........................................

TABLE OF AUTHORITIES—continued

Page

State v. Ben,

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

State v. Burket,

9 S.C.L. (2 Mill) 310 (Const. Ct. App. 1818) ..

State v. Starling,

49 S.C.L. (15 Rich.) 120 (Ct. App.

1867)......................................................... 25, 26, 27

United States v. Smith,

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

Vaughn v. Scade,

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

Ware v. Hylton,

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

Wesberry v. Sanders,

376 U.S. 1 (1964) ............................................

Williams v. Florida,

399 U.S. 78 (1970) ...... 1, 2, 3, 11, 12, 13, 14, 22, 25

Wolford v. Lopez,

146 S. Ct. 2032 (2026) ....................................

Work v. State,

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

Zylstra v. Corp. of Charleston,

1 S.C.L. (1 Bay) 382 (Ct. Com. Pl.

1794)................................................................

CONSTITUTIONS, STATUTES, AND

REGULATIONS

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

Fundamental Consts. of Carolina of 1669, art.

69, reprinted in 1 Bernard Schwartz, The

Bill of Rights: A Documentary History 108

(Leon Friedman & Karyn Gullen Brown

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

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

Pa. Const. of 1776, dec. of rights, art. IX ...........

TABLE OF AUTHORITIES—continued

Page

S.C. Const. of 1865, art. III, § 1..........................

S.C. Const. of 1868, art. I, § 11 ..........................

Military Reconstruction Act of 1867, ch. 153,

§ 5, 14 Stat. 428 ...............................................

Military Reconstruction Act of 1867, ch. 153,

§ 6, 14 Stat. 428 ...............................................

Act of Oct. 1715, ch. XLVI, § XI, reprinted in

23 The State Records of North Carolina 62–

64 (Goldsboro, N.C., Walter Clark ed., Nash

Bros. Book & Job Printers 1905) ....................

Act to Extend the Right of Trial by Jury to

Slaves, ch. V, § I, 1793 N.C. Sess. Laws 4 . ….

Act of Feb. 11, 1775, ch. DCXXIII, § 4,

reprinted in Acts of the General Assembly of

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

Samuel Allinson ed.1776) ...............................

Act of Feb. 11, 1775, ch. DCXXIII, § 9,

reprinted in Acts of the General Assembly of

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

Samuel Allinson ed.1776) ............................... .

Act of Oct. 8, 1778, ch. XLV, § 3, reprinted in

Acts of the Council and General Assembly of

the State of New Jersey app. V (Trenton,

N.J., Peter Wilson ed., 1784)...........................

Act of Oct. 8, 1778, ch. XLV, § 6, reprinted in

Acts of the Council and General Assembly of

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

Wilson ed., 1784) .............................................

Act of Oct. 8, 1778, ch. XLV, § 7, reprinted in

Acts of the Council and General Assembly of

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

Wilson ed., 1784) .............................................

Pa. Charter of 1681, app. I, § 5, 1 Pa. Stat. 303

Pa. Charter of 1681, app. I, § 6, 1 Pa. Stat. 303

vii

TABLE OF AUTHORITIES—continued

Page

Pa. Laws Agreed Upon in Eng. of 1682, art.

VIII, 1 Pa. Stat. app. III ..................................

Act of Jan. 12, 1705–06, ch. CXLIII, § I, 2 Pa.

Stat. 233 ...........................................................

Act of Jan. 12, 1705–06, ch. CXLIII, § II, 2 Pa.

Stat. 233 ...........................................................

Gradual Abolition Act of 1780, ch. 881, § 4, 10

Pa. Stat. 67 ......................................................

Gradual Abolition Act of 1780, ch. 881, § 10,

10 Pa. Stat. 67 .................................................

Act of Mar. 19, 1785, ch. 1138, § 8, 11 Pa. Stat.

486 (1785) ........................................................

Act of Dec. 19, 1865, No. 4732, § VII, 13 S.C.

Stat. 254 ...........................................................

Act of Dec. 19, 1865, No. 4732, §§ XIV–XVII,

13 S.C. Stat. 254.............................................

Act of Dec. 20, 1866, No. 4837, § III, 13 S.C.

Stat. 455 ...........................................................

Act of Sep. 21, 1866, No. 4794, § IV, 13 S.C.

Stat. 366-21......................................................

Act of Sep. 21, 1866, No. 4798, § I, 13 S.C.

Stat. 366-29......................................................

Act of Sep. 21, 1866, No. 4798, § II, 13 S.C.

Stat. 366-29......................................................

LEGISLATIVE HISTORY

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

1834).................................................................

Proclamation No. 46, reprinted in 13 Stat. app.

(1865) ...............................................................

SCHOLARLY AUTHORITIES

Austin Scott, Holmes vs. Walton: The New

Jersey Precedent, 4 Am. Hist. Rev. 456

(1899) .............................................................. 20, 21

viii

TABLE OF AUTHORITIES—continued

Page

Antonin Scalia & Bryan A. Garner, A Note on

the Use of Dictionaries, reprinted in 16

Green Bag 2d 419 (2013) .................................

Charles Warren, Congress, the Constitution,

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

1 Edward Coke, The Institutes of the Lawes of

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

Edward Raymond Turner, Slavery in

Pennsylvania (1911) ........................................

George R. Bentley, A History of the Freedmen’s

Bureau (1955) ..................................................

John A. Murley & Sean D. Sutton, The

Supreme Court Against the Criminal Jury:

Social Science and the Palladium of Liberty

(2014) ................................................................

2 Joseph Story, Commentaries on the

Constitution of the United States (Boston,

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

Kellen R. Funk, Uncomfortably Reminiscent:

ODonnell v. Harris County in History and

Memory, 63 Hous. L. Rev. 981 (2026) .............

Max Farrand, The Framing of the Constitution

of the United States (1913) ...............................

Paul Samuel Reinsch, The English Common

Law in the Early American Colonies, in 1

Select Essays in Anglo-American Legal

History (1907) ....................................................

Roger M. Stevens, A Legacy of Slavery: The

Citizen’s Arrest Laws of Georgia and South

Carolina, 72 S.C. L. Rev. 1005 (2021) ............

Saikrishna B. Prakash & John C. Yoo, The

Origins of Judicial Review, 70 U. Chi. L.

Rev. 887 (2003) ................................................

TABLE OF AUTHORITIES—continued

Page

Terry W. Lipscomb & Theresa Jacobs, The

Magistrates and Freeholders Court, 77 S.C.

Hist. Mag. 62 (1976) .........................................

Wanling Su & Rahul Goravara, What Is a

Jury?, 103 N.C. L. Rev. 969 (2025) ..................

Joel Williamson, After Slavery: The Negro in

South Carolina During Reconstruction,

1861–1877 (Univ. Press of New Eng. 1990)

(1965) ...............................................................

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

OTHER AUTHORITIES

Extracts from Gov. Perry’s Message, Anderson

Intelligencer, Sep. 28, 1865 .............................

Giles Duncombe, Tryals per Pais 80 (7th ed.

1739).................................................................

Giles Jacob, A New Law Dictionary (London,

W. Strahan & W. Woodfall 10th ed. 1782) ....

James Wilson, Of the Different Steps

Prescribed by the Law, for Apprehending,

Detaining, Trying and Punishing Offenders,

reprinted in 2 Collected Works of James

Wilson (Kermit L. Hall & Mark David Hall

eds., 2007) ....................................................... 17, 18

James Wilson, The Subject Continued. Of

Juries, reprinted in 2 Collected Works of

James Wilson (Kermit L. Hall & Mark

David Hall eds., 2007) .................................... 17, 18

Joseph Bingham, A New Practical Digest of

the Law of Evidence (London, W. & J. Stratford 1797) .........................................................

4 Matthew Bacon, A New Abridgment of the

Law (London, His Majesty’s L. Printers 3d

ed. 1768) ...........................................................

TABLE OF AUTHORITIES—continued

Page

2 Matthew Hale, Historia Placitorum Coronae

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

1736).................................................................. 13

Philip Hamburger, Is Administrative Law

Unlawful? (2014) ............................................ 19, 20

Philip Hamburger, Law and Judicial Duty

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

2 Richard Burn, A New Law Dictionary

(London, John Burn ed., A. Strahan & W.

Woodfall 1792) .................................................

2 Richard Burn, The Justice of the Peace and

Parish Officer (London, W. Strahan & W.

Woodfall 1785) .................................................

Richard Labunski, James Madison and the

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

Sidney Andrews, The South Since the War

(1866) ...............................................................

2 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution

(Washington, D.C., Jonathan Elliot, 2d ed.

1888).................................................................

3 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution

(Washington, D.C., Jonathan Elliot, 2d ed.

1836).................................................................. 15

4 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution

(Washington, D.C., Jonathan Elliot, 2d ed.

1888)................................................................... 16

Walter Edgar, South Carolina: A History

(1998) .............................................................. 28, 29

William Penn, England’s Present Interest

Considered (1675), reprinted in 3 The Select

Works of William Penn 197 (London, James

Phillips, 3d ed. 1782) .........................................

INTEREST OF AMICUS CURIAE*

Amicus curiae Wanling Su is an Assistant Professor

at Indiana University Bloomington whose scholarship

examines the historical foundations of the constitutional right to a jury. 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, and records from the private libraries

of the Sixth Amendment’s drafters.

Professor Su submits this brief to provide an accurate historical perspective as the Court considers

whether to overrule Williams v. Florida, 399 U.S. 78

(1970), and hold that the Sixth Amendment requires a

criminal petit jury to have twelve members. Williams

expressly turned on the perceived absence of historical

evidence that the Framers intended to preserve the

common law right to twelve jurors through the Sixth

Amendment. See id. at 89, 103. Extensive historical

research by Professor Su and others and the digitization of early American collections over the last half

century reveal that the twelve-juror requirement rests

on firmer historical ground than Williams recognized.

This brief aims to correct the misunderstanding of the

historical record as the Court considers the twelve-juror issue again.

* No counsel for any party authored this brief in whole or in part,

and no person or entity aside from amicus curiae and her counsel

made a monetary contribution intended to fund its preparation or

submission.

SUMMARY OF ARGUMENT

Williams v. Florida centered on a historical premise:

Although the common law jury unquestionably

consisted of twelve members, the historical record was

too “scanty” to say that the Framers intended that the

Constitution preserve the twelve-juror requirement.

399 U.S. at 92–93. The Court could not 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.

That historical premise hasn’t survived scrutiny.

Part of the problem was an incomplete record:

historical materials unknown or unavailable to the

Court now supply the evidence that Williams thought

was missing. Those materials—ranging from

Founding-era practices and legal authorities to early

American state-court decisions—undermine what

Williams inferred from silence. Furthermore, evidence

that the Court considered in Williams and

subsequently in Colgrove was misunderstood: The

supposed Pennsylvania counterexample of smaller

juries concerned a pre-Penn regime that vanished

more than a century before the Sixth Amendment’s

ratification. Dictionaries and treatises that supposedly

didn’t show twelve was necessary in fact said just that.

Justice James Wilson’s supposed indifference to the

twelve-juror requirement was actually commentary on

the distinction between grand and petit juries. And a

postbellum South Carolina court decision invoked as

supposed support for eight-juror panels rested on an

extraordinary provision in the State’s 1865

constitution, adopted as part of a racially

discriminatory and anti-Reconstruction regime.

With a more complete record and proper

understanding of it, the answer to the juror-number

question becomes plain. When the Framers

guaranteed criminal defendants trial by an impartial

jury, they used a settled legal term that meant twelve.

ARGUMENT

I. Practices from before and during the

Founding era confirm that twelve jurors

defined the constitutional minimum.

A. Pennsylvania did not recognize criminal

juries of fewer than twelve before or at

the Founding.

Williams rested in part on a colonial-era jurisdiction

that, in the Court’s view, had treated twelve as negotiable: “Pennsylvania permitted majority verdicts and

employed juries of six or seven.” 399 U.S. at 98 n.45

(citing Paul Samuel Reinsch, The English Common

Law in the Early American Colonies, in 1 Select Essays

in Anglo-American Legal History 367, 398 (1907)). But

the source the Court cited concerned a regime that

ceased to exist more than a century before the Sixth

Amendment—and never governed Pennsylvania in

the first place. Pennsylvania’s actual practice pointed

the other way: it used a separate nonjury tribunal for

Black defendants and later extended jury protections

in the same enactment that began gradual abolition.

1. Start with the basic error: The source Williams

cited wasn’t describing Pennsylvania law. It was describing proceedings in an era “before the coming of

[William] Penn,” conducted “under the Duke [of

York]’s laws,” in “the territory later called Pennsylvania.” Reinsch, supra, at 398. “The procedure was informal,” in no small part because “juries of six or seven

were in use.” Id. It was so informal that “not even the

distinctions between civil and criminal cases were

clearly drawn,” and the administration of justice was

“founded upon the ideas of the magistrates” rather

than “any rules of positive law.” Id. The cited passage

thus described not an exception to the twelve-juror

rule adopted by Pennsylvania but the “rude institutions” of a sparsely settled frontier. Id. at 367, 398.

Pennsylvania’s “actual practice” conformed to the

common law. Id. Its royal charter authorized Penn to

establish “Courts and Tribunalls” and the “manner of

Proceedings” but required the Province’s laws to remain “as neare as conveniently may bee agreeable to

the Lawes Statutes and rights of” England. Pa. Charter of 1681, app. I, § 5, 1 Pa. Stat. 303, 306. It further

provided that Pennsylvania’s laws “as to felonies shall

bee and continue the Same” as those supplied “by the

generall Course of the Law” in England unless altered.

Id. § 6, at 307.

Critically, Penn’s founding charter of rights then

made the relevant rule explicit: “all Tryals shall be by

Twelve Men, and as near as may be, Peers or Equals.”

Pa. Laws Agreed Upon in Eng. of 1682, art. VIII, 1 Pa.

Stat. app. III at 320. That reflected Penn’s own settled

understanding of the jury right. In 1675, Penn explained that no person could be imprisoned “unless he

were first attainted by the verdict of twelve men; that

is a jury.” William Penn, England’s Present Interest

Considered (1675), reprinted in 3 The Select Works of

William Penn 197, 208–09 (London, James Phillips, 3d

ed. 1782).

2. Even standing alone, the pre-Pennsylvania practice could not bear the weight Williams placed on it. In

“interpreting the Constitution, not all history is created equal.” N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1, 34 (2022). Rights “are enshrined with the

scope they were understood to have when the people

adopted them,” and evidence “long predat[ing]” ratification “may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening

years.” Id. (citation omitted). The six- or seven-member panels that Williams cited fit that bill: they had

become obsolete some 110 years before the Sixth

Amendment was ratified.

Pennsylvania law on the eve of ratification was in

lockstep with the common law tradition. In 1785, the

Commonwealth enacted a statute that directed the

drawing of names “until twelve persons … be had to

serve on the jury” and provided that those twelve, once

sworn or affirmed, “shall be the jury to try the cause.”

Act of Mar. 19, 1785, ch. 1138, § 8, 11 Pa. Stat. 486,

489–90.

3. Pennsylvania’s race-specific tribunals confirm

that a six-member panel wasn’t understood to be a

jury. A 1705 statute created “negro” courts composed

of two justices and “six of the most substantial freeholders of the neighborhood” who together tried

charges against Black defendants. Act of Jan. 12,

1705–06, ch. CXLIII, §§ I–II, 2 Pa. Stat. 233, 234. This

statute called the lay members “freeholders,” not jurors, and removed Black defendants from the ordinary

courts in which juries sat. As one account later explained, the tribunals afforded “no trial by jury” and

placed Black defendants outside “the jurisdiction of

the regular courts of the province.” Edward Raymond

Turner, Slavery in Pennsylvania 27–28 (1911). That

treatment reflected a racial caste system that denied

Black people, and especially enslaved people, the same

rights afforded to white persons. See Hobbs v. Fogg, 6

Watts 553, 558–59 (Pa. 1837) (describing earlier legal

order as marked by an “unconquerable prejudice of

caste” where “colored race” was excluded from “our social compact”). The six-freeholder body was thus not

an undersized jury, but a denial of the jury right.

Pennsylvania’s transition away from that system

sharpens the distinction. The 1776 constitution guaranteed a defendant a “trial, by an impartial jury of the

country.” Pa. Const. of 1776, dec. of rights, art. IX. In

1779, an enslaved man named Larry was tried under

that guarantee and “convicted by a Jury of twelve

Men.” Turner, supra, at 28 n.32 (quoting Pa. Packet,

Feb. 16, 1779). One local account called his case “the

first instance” in which an enslaved person had been

tried “by a Grand and Petit Jury” and said the constitution afforded enslaved and free defendants “the

same mode of trial.” Id. (quoting Pa. Packet, Feb. 16,

1779).

Pennsylvania removed any doubt about this constitutional view when it began its abolition of slavery the

next year—well before the Sixth Amendment. In the

same statute setting gradual abolition in motion, the

legislature required offenses by Black persons to be

tried and punished “in like manner” as those of other

inhabitants “and not otherwise” and expressly repealed the 1705 statute. Gradual Abolition Act of 1780,

ch. 881, §§ 4, 10, 10 Pa. Stat. 67, 70, 72–73. Thus,

eleven years before ratification, Pennsylvania subjected all defendants to the ordinary judicial process.

And the Commonwealth’s jury statute made clear that

process required twelve sworn persons who collectively

formed “the jury.”

Pennsylvania thus supplies no Founding-era

support for undersized criminal juries. Its founding

charter of rights mandated trial “by Twelve Men”; its

founder defined “jury” by that number; its ratification-

era statute declared that twelve sworn persons “shall

be the jury”; and its race-specific tribunal of six

freeholders that the law declined to call a jury

disappeared before ratification. Properly understood,

Pennsylvania confirms that a panel of fewer than

twelve wasn’t a smaller jury—it was no jury.

B. The Carolinas’ constitutions

presupposed that a jury had twelve

members.

The Province of Carolina and South Carolina, one of

its successors, likewise treated twelve as part of what

“jury” meant, and their constitutional history makes

that point especially clear. Carolina specified twelve

jurors, and South Carolina later preserved that

understanding even after its constitution ceased to

specify a number.

The Fundamental Constitutions of Carolina—in

which John Locke had a hand—were adopted in 1669

and expressly codified the right to a jury of twelve:

“[e]very jury shall consist of twelve men.”

Fundamental Consts. of Carolina of 1669, art. 69,

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 changes in the

constitutional language. After independence, South

Carolina dropped the explicit reference to “twelve” in

favor of more general language mirroring 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 construed language 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) (emphasis

omitted).

This interpretation thus demonstrates an important

Founding-era understanding of constitutional jury

guarantees: the phrase “trial by jury” incorporated the

twelve-juror requirement even when no explicit

number is stated.

C. South Carolina’s contrasting treatment

of enslaved persons confirms that fewer

than twelve jurors was no constitutional

jury.

Like Pennsylvania, South Carolina assigned

proceedings for enslaved persons to separate tribunals

that used panels with fewer than twelve lay

participants but were not understood to provide trial

by jury. And the State’s courts later explicitly held that

these bodies were not “juries.”

1. Early American jurisprudence often cast enslaved

people as outside the ambit of the constitutional order.

As one court 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 (Ct. App. L. & Eq. 1830); see State ex

rel. Kohne v. Simons, 29 S.C.L. (2 Speers) 761, 768 (Ct.

Err. 1844) (enslaved person at issue) (“All the Acts

operating upon slaves directly, and to punish them, do

not fall within the inhibition of the Constitution.”).

In that vein, South Carolina maintained an

institution known as the Courts of Magistrates and

Freeholders—commonly known 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 have endured

illuminate 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 was

intrinsic to the idea of a jury. The Courts of

Magistrates and Freeholders impaneled three to five

individuals to try enslaved persons and free persons of

color. See Su & Goravara, supra, at 987. But the

members of these panels were not called “jurors” but

rather “freeholders.” Nor did contemporaneous

references to the institution use the term “jury.”

Indeed, these proceedings were uniformly described as

nonjury 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 authorized South Carolina to treat any

enslaved person who returned to the State after

having ventured north of the Potomac River as

forfeited by an enslaver. See 29 S.C.L. at 765–66. In

Kohne, the enslaver of a woman named Emma

contested a forfeiture verdict 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 “property

rights” could not be forfeited without a verdict by a

jury of twelve. See id. at 768. The Court of Errors

agreed. In declaring the statute unconstitutional, a

unanimous court held 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 report of the presiding judge

accompanying the court’s opinion further stated that a

proceeding with fewer is “utterly inconsistent with a

due course of law.” Id. at 762, 764.

D. North Carolina’s 1793 reform drew the

dividing line between a jury and a lesser

panel at twelve members.

North Carolina’s early practice largely mirrored that

of its neighbor. In 1715, shortly after Carolina’s

partition, North Carolina vested its Courts of

Magistrates and Freeholders with jurisdiction over

offenses by enslaved persons. See Act of Oct. 1715, ch.

XLVI, § XI, reprinted in 23 The State Records of North

Carolina 62–64 (Goldsboro, N.C., Walter Clark ed.,

Nash Bros. Book & Job Printers 1905) (repealed 1741).

Those courts impaneled at least three “Freeholders”—

again, “jury” wasn’t used—and later four, when the

legislature amended the statute. Id.; Act of Apr. 4,

1741, ch. XXIV, § XLVIII, 1741 N.C. Sess. Laws 57, 65.

But the 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,

the legislature took the extraordinary steps of

transferring jurisdiction over offenses 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. V, § I,

1793 N.C. Sess. Laws 4, 4. For the first time, the state

used the term “jury” to describe the body trying

enslaved persons and free persons of color. See id.

This legislative change was a conscious act reflecting

the moral and constitutional understandings of the

time. In extending to enslaved persons the right to be

tried by twelve, the legislature acknowledged—

however imperfectly, given the law’s continued denial

of freedom and equality—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)

(enslaved party).

II. Founding-era legal authorities understood

the right to a “jury” to require twelve

jurors.

A. Dictionaries and treatises defined “jury”

as a body of twelve members.

Williams faulted earlier decisions for “assum[ing]” in

dicta a twelve-person requirement based on

contemporary authorities that showed merely “that at

common law the jury did indeed consist of 12.” 399 U.S.

at 90–92. But those sources in fact answered the

question the Court thought was unresolved. See

generally District of Columbia v. Heller, 554 U.S. 570,

605 (2008) (relying on such sources). These sources

defined “jury” by the number twelve and treated a

departure as legally defective. Indeed, some of the

same authorities Williams cited for other propositions

said exactly that.

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. Richard Burn’s dictionary—

another influential source—was in accord: “upon a

trial by a petit jury, it can be by no more, nor less, than

12, and all assenting to the verdict.” 2 Richard Burn,

A New Law Dictionary 45 (London, John Burn ed., A.

Strahan & W. Woodfall 1792); see Antonin Scalia &

Bryan A. Garner, A Note on the Use of Dictionaries,

reprinted in 16 Green Bag 2d 419, 424 (2013).

2. Contemporary English publications 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); see Williams,

399 U.S. at 93 n.35 (citing 4 William Blackstone,

Commentaries for other proposition). 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). The answer: “these

eleven cannot give any verdict without the twelfth.” Id.

The remaining eleven must “be discharged, and a new

jury sworn.” Id. And “[i]f only eleven are sworn by

mistake, no verdict can be taken of the eleven, and if

it be, it is error.” Id. at 296.

Two other treatises are especially significant

because Williams itself relied on them. Giles

Duncombe’s Tryals per Pais stated that “the law is so

precise in this [n]umber of [t]welve, that if the [t]rial

be by more or less, it is a mistrial.” Giles Duncombe,

Tryals per Pais 80 (7th ed. 1739). 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). Williams invoked both sources in discussing the

origins of the twelve-member rule while overlooking

statements that the law required it. See 399 U.S. at

88–90 & nn.22–23.

This understanding of what “jury” meant wasn’t

confined to the treatise literature; it was also what the

magistrates administering the criminal law in

courtrooms across early America were instructed.

Burn’s The Justice of the Peace and Parish Officer—

the standard working manual of the magistrates who

actually administered the criminal law, and a fixture

of American and English law libraries—recited the

rule in the same terms: “upon a trial by a petit jury; it

can be by no more nor less than 12, and all assenting

to the verdict.” 2 Richard Burn, The Justice of the

Peace and Parish Officer 602 (London, W. Strahan &

W. Woodfall 1785).

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, W.

& J. Stratford 1797) (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 Joseph 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,

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

Thus, Founding-era dictionaries and treatises show

that when the Framers drafted an amendment

guaranteeing “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. The ratification debates treated twelve

members as inherent in a jury.

Williams looked to the ratification debates in

determining what attributes the constitutional “jury”

carried with it. See 399 U.S. at 93–94 & n.35. Those

debates show that the twelve-juror requirement was

too settled to warrant discussion. At conventions in

Virginia, Pennsylvania, and North Carolina, speakers

on both sides of ratification referred to juries as bodies

of twelve without stopping to explain or defend the

number.

At Virginia’s 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

Conventions on the Adoption of the Federal

Constitution 467 (Washington, D.C., Jonathan Elliot,

2d ed. 1836) [hereinafter Debates] (emphasis added).

Randolph’s phrasing suggests that twelve was so

obvious it did not require argument. Even Patrick

Henry, no friend of the proposed Constitution, did not

question this understanding despite finding “danger to

liberty in almost every clause.” John A. Murley & Sean

D. Sutton, The Supreme Court Against the Criminal

Jury: Social Science and the Palladium of Liberty 32

(2014). 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

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 Commonwealth’s convention. While

defending the Constitution’s provision for the

Supreme Court’s appellate jurisdiction, he observed

that “[j]uries 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 comparable

remarks by state judge Samuel Spencer. He 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 “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 one 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.

C. Justice Wilson’s lectures, read in full,

confirm the twelve-juror requirement.

Three years after Williams was decided, the Court

believed it had found one instance in which a Founder

expressed indifference “for preservation of the traditional number 12”—a 1790s lecture by Justice Wilson

to the College of Philadelphia (now the University of

Pennsylvania). Colgrove, 413 U.S. at 156 n.10. Wilson

no doubt served as a bellwether of Founding-era sentiment: he was “one of the most active members of the

Constitutional Convention” of 1787 and delivered his

lecture while the Bill of Rights was still being ratified.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964); see also

Max Farrand, The Framing of the Constitution of the

United States 198 (1913) (calling Wilson “[James]

Madison’s ablest supporter”). But the lecture doesn’t

show Wilson viewed the number twelve as dispensable. Read as a whole, it shows the opposite.

1. Wilson did not express apathy to the twelve-juror

requirement in his lecture; he was commenting on juries generally, not just petit juries. The sentence that

Colgrove invoked, as quoted, reads: “When I speak of

juries, I feel no peculiar predilection for the number

twelve ….” Colgrove, 413 U.S. at 156 n.10 (alteration

in original) (quoting 2 The Works of James Wilson 503

(Robert Green McCloskey ed., 1967)). But that ellipsis

omits the most important part. The full quote reads:

“When I speak of juries, I feel no peculiar predilection

for the number twelve: a grand jury consists of more,

and its number is not precisely fixed.” James Wilson,

The Subject Continued. Of Juries, reprinted in 2 Collected Works of James Wilson 954, 954 (Kermit L. Hall

& Mark David Hall eds., 2007) [hereinafter Wilson, Of

Juries].

Wilson then clarified three sentences later that he

was describing the broader institution of the jury encompassing different forms: “When I speak of juries, I

mean a convenient number of citizens, selected and

impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try

the truth of facts ….” Id. Thus, the variation Wilson

had in mind was different kinds of juries, and he used

grand juries to show the number of jurors may vary by

kind. And even as to grand juries, he identified twelve

as the floor: “A grand jury must consist of at least

twelve members, because twelve are necessary.”

James Wilson, Of the Different Steps Prescribed by the

Law, for Apprehending, Detaining, Trying and Punishing Offenders, reprinted in 2 Collected Works of

James Wilson, supra, at 1175, 1181 [hereinafter Wilson, Of the Different Steps].

2. Elsewhere, Wilson addressed petit juries directly

and tied them to twelve. As a general matter, he instructed that “no less than twelve persons should be

called in all ordinary causes.” Wilson, Of Juries, supra,

at 967; cf. 2 Burn, A New Law Dictionary, supra, at 45

(“[U]pon a trial by a petit jury, it can be by no more,

nor less, than 12 and all assenting to the verdict.”). He

defined the verdict itself by reference to the number.

He posed the question, “What is a verdict?” and answered that it’s “the joint declaration of twelve jurymen upon their oaths.” Wilson, Of Juries, supra, at

980. Wilson also quoted English legal scholar and

judge Sir Thomas Littleton, who referred to jury verdicts as “the verdict of twelve men.” Id.

And Wilson was emphatic that the criminal petit

jury required twelve jurors: “To the conviction of a

crime, the undoubting and the unanimous sentiment

of the twelve jurors is of indispensable necessity.” Id.

at 985. He also noted in another lecture that the First

Congress—whose judgment “provides contemporaneous and weighty evidence of the Constitution’s meaning,” Alden, 527 U.S. at 743–44 (cleaned up)—implemented Article III’s jury right in line with the common

law: “By the national constitution, crimes committed

in any state shall be tried in that state: and by a law

of the United States, twelve, at least, of the jurors

must be summoned from the very county, in which the

crime was committed.” Wilson, Of the Different Steps,

supra, at 1194.

The consequences of all this for Williams are significant. Wilson gave the sustained thought to the jurornumber question, in public, in the year the Sixth

Amendment was ratified, and reached the opposite

conclusion as Williams. Colgrove’s lone example of

supposed indifference in the Founding-era is, in fact,

clear evidence that a criminal jury requires twelve jurors.

III. Early American courts interpreted

constitutional guarantees to a jury as

mandating twelve members.

The New Jersey Supreme Court’s

decision in Holmes v. Walton

invalidated six-person juries.

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 (N.J. 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). To address the British

threat, New Jersey enacted the Enemy Seizure Act of

1778 to target loyalists smuggling provisions to British

troops and authorize forfeiture of the property. See Act

of Oct. 8, 1778, ch. XLV, §§ 3, 6, reprinted in Acts of the

Council and General Assembly of the State of New

Jersey app. V at 9–11 (Trenton, N.J., Peter Wilson ed.,

1784).

Critical here, the Enemy Seizure Act permitted

verdicts by juries of only six people. See id. § 6

(incorporating provisions of Feb. 11, 1775 statute); Act

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

the General Assembly of the Province of New Jersey

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

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

taken, see Act of Feb. 11, 1775, ch. DCXXIII, § 9, and

American militiamen who seized goods en route to the

enemy could keep proceeds from their sale, see Act of

Oct. 8, 1778, § 7. The legislature enacted the Act

without a single nay vote. See Austin Scott, Holmes vs.

Walton: The New Jersey Precedent, 4 Am. Hist. Rev.

456, 461 (1899).

Holmes

found

the

six-person

provision

unconstitutional—and did so based on a provision

describing a right to a jury in only general terms. The

case arose when John Holmes and other loyalists were

convicted of smuggling and then petitioned the New

Jersey Supreme Court for certiorari. See Philip

Hamburger, Law and Judicial Duty 414 (2008). The

State’s 1776 constitution provided that “the

inestimable right of trial by jury shall remain

confirmed as a part of the law of this [c]olony, 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

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 can’t be overstated. New

Jersey was situated between the belligerents’ armies.

Smuggling posed a significant threat to the

Revolutionary cause. The legislature had acted

unanimously to address it. Yet the court held that

constitutional principles could not be compromised,

even in wartime. The message was clear: the right to

a “jury” meant twelve jurors.

2. Apart from Holmes’s significance on its own terms,

the decision exerted a profound and demonstrable

influence on the Framers.

Delegates to the Philadelphia Convention almost

certainly had Holmes on their minds when they

convened. See Su & Goravara, supra, at 1008. Archival

evidence indicates Philadelphia newspapers and

Convention-era pamphlets discussed the case. 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, a Pennsylvania delegate,

mentioned Holmes in addressing the Commonwealth’s

legislature two years earlier. See Scott, supra, at 464.

And, of course, one of the few rights codified in the

original Constitution 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.

What’s more, three leading participants in Holmes

went on to play key roles at the Philadelphia

Convention and First Congress. Chief Justice

Brearley—who, again, delivered the oral opinion for

the court—was a delegate to the Convention. See

Charles Warren, Congress, the Constitution, and the

Supreme Court 44–45 (1925). 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 and later became a justice on this Court. See

Richard Labunski, James Madison and the Struggle

for the Bill of Rights 239 (2006); Ware v. Hylton, 3 U.S.

(3 Dall.) 199, 245–56 (1796) (Paterson, J.). 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

codifying a jury right contrary to the definition of their

home state’s highest court—or in the case of Chief

Justice Brearley, the definition that he himself

announced.

B. Founding-era interpretive principles

required giving “jury” its settled

common law meaning.

The Court in Williams rested on the supposed

distinction between the constitutional and common

law contexts, reasoning 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; see also

Colgrove, 413 U.S. at 156. That distinction, however,

is untenable. When constitutional text used a term

with a settled common law meaning, eighteenthcentury canons of construction required courts to give

the term that meaning. And early American courts

consistently applied these canons to imbue general

constitutional provisions codifying a right to a “jury”

with its common law meaning.

1. Chief among contemporary interpretive principles

was that when legal text uses a term with a settled

common law meaning, that term carries its

established definition. As one jurist put it: “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 was commonplace in early America.

Justice Story, for instance, observed 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). Chief Justice John

Marshall similarly noted that 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).

That applies to the word “jury.” The term had a wellknown 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 confirm this gloss. 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 in the

affirmative.

The Mississippi Supreme Court, for example,

“recur[red] to the provisions of the common law” to

understand what the State’s constitutional framers

intended by “jury.” Carpenter v. State, 5 Miss. (4 How.)

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. Stated generally,

“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.

The Ohio Supreme Court employed the same

approach. Examining language declaring 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), overruled in part by State ex rel.

City of Columbus v. Boyland, 391 N.E.2d 324 (Ohio

1979). Its answer: “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.

Mississippi and Ohio weren’t outliers. State courts

across the early Republic were “unite[d] in declaring

that where there is a constitutional guaranty of the

right to trial by jury, twelve is the number of which the

jury must be composed.” Vaughn v. Scade, 30 Mo. 600,

604 (1860). The Arkansas Supreme Court held that

“when [its] 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. Pennsylvania’s 1776 constitution

provided “a right to trial by jury,” which its high court

interpreted to require “that all trials shall be by twelve

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

Courts in South Carolina and Alabama observed that

“every lawyer knows” that juries consist of twelve

members, State v. Burket, 9 S.C.L. (2 Mill) 310, 311

(Const. Ct. App. 1818), and “[t]he term jury is well

understood to be twelve men,” Foote v. Lawrence, 1

Stew. 483, 483 (Ala. 1828).

Other courts underscored the risks of departing 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). The New

Hampshire Supreme Court stated 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.” Op. of Justs., 41 N.H. 550, 551–52 (1860).

The pattern demonstrates how Founding-era rules

of construction operated in practice. State court after

state court treated “jury” in constitutional text as

bearing its settled common law meaning, and every

court applying that principle interpreted “jury” to

require twelve jurors. The conclusion is inescapable:

when the Framers guaranteed criminal defendants

“trial by an impartial jury,” they used a wellunderstood term of art whose meaning required no

fewer than twelve jurors.

C. State v. Starling arose from South

Carolina’s resistance to Reconstruction,

not the settled meaning of “jury.”

Williams also invoked State v. Starling, 49 S.C.L. (15

Rich.) 120 (Ct. App. 1867), which upheld an eight-person jury in South Carolina’s postbellum District

Courts. See 399 U.S. at 98 n.45. Even standing alone

(to say nothing of the broader context set forth above),

Starling is dubious evidence that the State regarded

twelve as constitutionally dispensable. The court emphasized the importance of twelve jurors and sustained a panel with eight only because the State’s 1865

constitution specifically authorized departures from

the norm in those courts. And the case arose from a

distinctive Reconstruction-era scheme whose racist origins and rapid displacement undermine its historical

value.

1. Starling isn’t affirmative evidence that South Carolina regarded twelve as nonessential. Far from it: The

court “venture[d] not to declare” whether that number

was among the essentials of jury trial. 49 S.C.L. at 134.

The court instead observed that twelve had become “so

associated with the common idea of a jury” that changing it “by mere legislative authority might be expected

to excite apprehension.” Id. at 134. And it predicted

that the rule of twelve probably “would have been left

to prevail in the District Courts” if the 1865 state constitution had not authorized the legislature to provide

otherwise. Id. at 134–35. The court upheld an eightjuror panel only because the legislature had exercised

that authority. Id. at 135.

2. Nor should much weight be placed on Starling; its

pedigree is, at best, deeply suspect. A historical episode rooted in racial subordination and hostility to the

constitutional settlement secured in the Second

Founding is a “tainted artifact.” Wolford v. Lopez, 146

S. Ct. 2032, 2053 (2026). And a historical assessment

of an unconventional legal rule can’t overlook “the very

functions” it was adopted to serve. Ramos v. Louisiana, 590 U.S. 83, 99 & n.44 (2020). That caution applies with force here: the exception Starling condoned

emerged from a state constitutional convention

marked by racism and resistance to Reconstruction.

The 1865 convention’s composition and proceedings

reflect those “tainted” origins. Its electorate comprised

those who had taken President Andrew Johnson’s

“oath of amnesty,” which allowed most former Confederates to regain their political rights, and qualified under South Carolina’s antebellum voting laws—effectively excluding Black persons. Proclamation No. 46,

reprinted in 13 Stat. app. at 769–71 (1865). Governor

Benjamin Franklin Perry—the “chief man in the Convention” whose word carried “unusual significance,”

Sidney Andrews, The South Since the War 49 (1866)—

decried Northern Republicans for “forget[ting] that

this is a white man’s government, and intended for

white men only; and that the Supreme Court of the

United States has decided that the negro is not an

American citizen,” Extracts from Gov. Perry’s Message,

Anderson Intelligencer, Sep. 28, 1865, at 1. Convention delegates sounded the same theme, calling Black

people “animal[s] whose character the North seems utterly unable to comprehend” and “no more qualified to

vote now than children.” Andrews, supra, at 87, 89.

That sentiment shaped the legal scheme the convention produced. The constitution created District Courts

with jurisdiction over “criminal cases wherein the accused is a person of color.” S.C. Const. of 1865, art. III,

§ 1. While it generally preserved jury trials “as heretofore used,” it empowered the legislature to “determine

the number of persons who shall constitute the jury in”

those courts. Id. art. IX, § 7. The convention also called

for laws governing “the colored population of the

State.” Roger M. Stevens, A Legacy of Slavery: The Citizen’s Arrest Laws of Georgia and South Carolina, 72

S.C. L. Rev. 1005, 1031–33, 1031, n.180, 1032 &

nn.186–88, 1033 n.193 (2021) (citation omitted). The

resulting Black Code gave the District Courts exclusive jurisdiction over prosecutions of Black defendants, imposed race-specific criminal rules, and prescribed two types of petit juries—monthly “common”

juries of four persons and quarterly “special” juries of

six. See id.; Starling, 49 S.C.L. at 136; Act of Dec. 19,

1865, No. 4732, §§ VII, XIV–XVII, 13 S.C. Stat. 254,

256, 258–59.

The September 1866 extension of District Court jurisdiction to white defendants doesn’t erase that history. It came only after the Civil Rights Act of 1866

forced South Carolina to revise its racial regime. The

governor convened the legislature to make state law

“so as to conform to the ‘civil rights Act,’ and the requirements of the Freedmen’s Bureau.” Joel Williamson, After Slavery: The Negro in South Carolina During Reconstruction, 1861–1877, at 72 (Univ. Press of

New Eng. 1990) (1965) (citation omitted). The legislature equalized criminal penalties for white and Black

defendants and largely repealed the original District

Court legislation, replacing its race-specific jurisdiction with a facially general grant. See Act of Sep. 21,

1866, No. 4794, § IV, 13 S.C. Stat. 366-21, 366-22; Act

of Sep. 21, 1866, No. 4798, §§ I–II, 13 S.C. Stat. 36629, 366-29 to -30. But that “tinker[ing]” was designed

merely to satisfy “the letter of the … Civil Rights Act”

and prevent cases from being transferred to federal

court. Walter Edgar, South Carolina: A History 385

(1998). And within months, the legislature prescribed

the eight-person jury later upheld in Starling. See Act

of Dec. 20, 1866, No. 4837, § III, 13 S.C. Stat. 455, 456.

Nor did facial neutrality ensure equal administration. Such equalizing measures “were frequently not

translated from the law books into courtroom practice”

in the postbellum South. George R. Bentley, A History

of the Freedmen’s Bureau 157 (1955). And Freedmen’s

Bureau records continued to document federal intervention when South Carolina authorities failed to pursue white violence against Black victims adequately.

See Kellen R. Funk, Uncomfortably Reminiscent:

ODonnell v. Harris County in History and Memory, 63

Hous. L. Rev. 981, 993–94 (2026).

That backdrop sharply limits Starling’s value as evidence of constitutional meaning. The eight-person

jury was of a piece with the Black Code regime that

produced the District Courts. And it proved shortlived. Congress soon required new constitutional conventions in the South without racial restrictions. See

Military Reconstruction Act of 1867, ch. 153, §§ 5–6,

14 Stat. 428, 429–30. Black men voted for the first time

in South Carolina’s 1868 convention elections, and

roughly three-fifths of delegates were Black. See Edgar, supra, at 385–87. The new constitution discarded

the race-defined District Court system and the special

jury-size authority. See S.C. Const. of 1868, art. I, § 11.

The eight-person jury was thus a short-lived feature

borne of a Black Code and dismantled during Reconstruction—hardly reliable evidence of a settled understanding that twelve jurors were constitutionally optional.

CONCLUSION

The Court should overturn Williams and reverse the

judgment below.

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*

Bianca Mona Corgan

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jacob.steinbergotter@sidley.com

* Supervised by principals of the

firm who are members of the District of Columbia bar

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.