The California Assembly recently passed a bill that would allow non-citizens (Justice Sotomayor’s word of choice, albeit without the hyphen) to serve on juries. This got me thinking about the vicinage clause (yes, this is what I think about). The vicinage clause of the 6th Amendment guarantees an “impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” Oddly, this provision has not been incorporated (one of the few). California’s Constitution (Article I, Section 16) does not seem to have a comparable provision. Several state Constitutions do have similar provisions.

Would there be any problem under the vicinage clause with such a law? Are noncitizens part of the vicinage of the district?

The District of Maryland in Perkins v. Smith approved the exclusion of non-resident aliens from juries, and spoke at some length about the harm that noncitizens can pose by sitting on juries:

In maintaining the jury system as “the very palladium of free government” the states logically can anticipate that native-born citizens would be conversant with the social and political institutions of our society, the customs of the locality, the nuances of local tradition and language. Likewise naturalized citizens, who have passed through the citizenship classes sponsored by the Immigration and Naturalization Service, have demonstrated a basic understanding of our form of government, history and traditions. There is no corresponding basis for assuming that resident aliens, who owe allegiance not to any state or to the federal government, but are subjects of a foreign power, have so assimilated our societal and political mores that an equal reliance could be placed on their performing as well as citizens the duties of jurors in our judicial system.

The nature of the operation of juries makes it apparent that persons unfit *977 for jury service can work a great deal of harm, through inability or malice, to efficiency and fairness. Jury deliberations are perhaps the most secret form of decision-making in the nation; the means of persuasion used by jurors on each other are never revealed. A single juror who failed to understand the import of the evidence being presented or who lacked any concern for the fairness of the outcome could severely obstruct or distort the course of justice. A single persuasive and unprincipled juror could even direct the course of justice into channels deliberately chosen for their deleterious effect on this country. We conclude, therefore, that the state has a compelling interest in the restriction of jury service to those who will be loyal to, interested in, and familiar with, the customs of this country.

Resident aliens by definition have not yet been admitted to citizenship. Until they become citizens, they remain in most cases legally bound to the country of their origin. Nothing is to prevent their return to that country, or a move to yet a third nation. It is true that many, if not most, aliens do intend to become citizens, and that their loyalty could probably be counted upon. However, it is the process of filing for citizenship that establishes that loyalty; any attempt at prior screening would undercut the efficiency and significance of existing procedures. Therefore, although the presumption that all aliens owe no allegiance to the United States is not valid in every case, no alternative to taking citizenship for testing allegiance can be devised, so that we conclude that the classification is compelled by circumstances, and that it is justifiable.

There isn’t much on point. I did a JLR search for “vicinage clause” /p citizen, and I got nothing.

In United States v. Durham, the 10th Circuit implied that a jury must have citizens, though this may be dicta:

That decision served as a proper waiver of the defendants’ constitutional and statutory rights to a jury comprised of citizens from the district in which the crime occurred.

28 U.S.C. s 1861 (last amended in 1968), the federal jury statute, sure seems to imply that jurors must be citizens, although it is not clear if this is in any way compelled by the vicinage clause:

It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.

U.S. v. Gordon-Nikkar, 5th Circuit opinion from 1978 construed this statute, and found that:

The right and duty to act as grand or petit jurors is presently reserved to citizens. “Any citizen of the United States . . . is competent to serve as a grand or petit juror.” 28 U.S.C. s 1861 (emphasis added). See also 28 U.S.C. s 1865. This statutory mandate serves to exclude otherwise eligible resident aliens from jury service.

Elsewhere, courts have held that “The test for a constitutionally selected jury is the same, whether challenged under the Sixth Amendment of the Constitution or under the Jury Selection and Service Act.” So the standards do seem to be coextensive, but this seems to be talking about the fair-cross section provision.

But the Gordon-Nikkar court did go on to address the relationship between Citizenship and constitutional qualifications for jury service:

Thus, if citizenship is a reasonable qualification for jury duty and resident aliens may properly be excluded from jury service, no Sixth Amendment violation results from such an exclusion. The “truly representative cross-section” requirement encompasses only individuals qualified to serve as jurors. Our inquiry is thus whether the Government can constitutionally impose citizenship as a qualification for jury service.

But that only says it does not violate the 6th Amendment to exclude noncitizens. It does not necessarily follow that it would violate the vicinage clause if noncitizens were *allowed* to  to serve. Though, the greater power to exclude probably encompasses the lesser power to include. Excluding is always tougher under the Constitution that including.

Yay for obscure constitutional provisions that do not matter!

Update: Eugene Volokh opines:

The California Assembly has passed a bill allowing non-citizens on juries. A reader asks: Is this constitutionally permissible?

Probably yes. Historically, English and American juries had to be composed of citizens, likely in part because they had to be composed of landowners and in the past non-citizens couldn’t own land. At the same time, in lawsuits involving a citizen and an alien, the jury had to be de medietate linguae — half citizen and half alien (I oversimplify here). The jury de medietate linguae endured in America for several decades.

This suggests that there was no firmly understood constitutional rule that juries had to be citizens, but that the composition of a jury was seen as generally subject to legislative discretion. (Indeed, property requirements for jury membership were relaxed over time by legislative action, and other changes were instituted as well.) To be sure, recent Sixth Amendment cases have limited such legislative discretion, arguing that the jury had to be a cross-section of the community; but I’ve seen none that state that legislatures must select from the community of citizens as opposed to the community of lawful residents.