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


We are accustomed to viewing the Bill of Rights as a success story. With it, the American constitution-makers opened a new epoch in the centuries-old struggle to place effective limits on the abuse of state power. Not all of the Bill of Rights is a success story, however. While we are celebrating the Bill ofRights, we would do well to take note of that chapter of the Bill of Rights that has been a spectacular failure: the Framers' effort to embed jury trial as the exclusive mode of proceeding in cases of serious crime.

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