Serving Our Way to Unity

Richard Cohen wants to solve important national problems — by disrupting other people’s life plans, not, of course, his own.

He suggests forcing young Americans to work together on national-service projects. The very act of working together, he argues, could strengthen our sense of national unity, which badly needs repair. It could break them out of their isolated cultural bubbles.

Perhaps so.

Unfortunately for him, young people are people, and they have their own lives to lead. The rights of liberty and equal protection apply to them as much as they do to him. They need to spend their years pursuing their goals, not his. And a law forcing only the young to do national service would be discriminatory.

Yet bringing people together for public-spirited work could have just the benefits Mr. Cohen (who is of no traceable relation to me) has in mind. And they are important benefits: The climate of mistrust and even hatred between red and blue Americans is destructive.

Magna Carta defended liberty with a clause protecting what evolved into trial by jury.

The good news is, we already have a service program that can bring us together. It’s compulsory, but it’s designed to protect liberty. And while it does exclude people under 18, it applies equally to adults of all ages; it’s not imposed only on a vulnerable minority. It’s a service program that’s largely been abandoned, but it’s one we need to bring back for other reasons.

It’s called jury service.

Paradigmatically, being on a jury means being snatched out of your normal life and forced to work with 11 other random citizens on a common problem. It means talking to those fellow Americans and trying to reach a unanimous decision, which is likely to require either convincing others or being convinced.

In short, it means practicing just those civic virtues we are losing. You can’t substitute getting out your base for convincing the other side when there are only 12 votes and they have to be unanimous. Calling the other guy a bigot or a snowflake seems an unlikely way to get him to change his vote. And the real consequences of your decision should focus your mind on doing justice rather than winning points for your side.

Are jury pools diverse enough for the purpose? Probably, if it’s hard to get out of serving. True, they are geographically limited, but even within one county there are often people in very different circumstances — say, corporate lawyers and bus drivers. And federal judicial districts can be as large as entire states, including urban and rural areas.

Jury duty is still forced service. But it is forced service in the cause of liberty. Having random citizens decide cases prevents officials from exercising power arbitrarily. A prosecutor and a judge could conspire against an innocent citizen; it’s a lot harder to bring twelve random peers into the conspiracy. And even when someone is guilty, juries have the power to acquit if they believe the law or the prosecution to be unjust; courts try to restrain this power, but they can’t take it away completely. So this prima facie violation of liberty actually makes our liberty more secure. Few if any other forms of forced service, except national defense during a war that could actually lead to the conquest of the nation, have such a payoff. And if doing justice doesn’t justify compelling people to attend court, what are we to say of witnesses, or for that matter defendants, since they may be as innocent as jurors?

Sadly, we don’t have very much jury service. I’ve been a legal adult for more than two decades and have yet to deliberate as a juror in court. That’s because most cases are now resolved without juries — 97 percent of federal convictions, one year, came without trial. Abolish plea bargains, and you get vastly more work for juries.

You almost certainly get better justice for defendants and victims, too, but that’s another argument.