I was a small boy amidst the patriotism of the Second World War. I learned to love America as the face of liberty, the palladium of justice, and the embodiment of the ideal of government under law, not under men. This paramount place of Law is etched in Latin above the entrance to our law school; it is our shining national ideal, the religion of America, the essence of the enlightenment that flowed from our Declaration of Independence, our Constitution, our Bill of Rights.

This American ideal is in crisis as never before, the challenge of re-establishing its luster has never been greater. Leaders like Johnson and Nixon may have besmirched it but they never argued outright that law should be subservient to executive power. The Bush administration, with Cheney as its architect and now its spokesman, flat out attacked our core American ideal, attempting to convince us and the world by its actions and rhetoric that Law is an inconvenient impediment to security to be openly dispensed with at executive behest.

Now comes President Obama—a lawyer, a teacher, a man of the constitution —to contest for the ideal. He is challenged, like Lincoln, to make the law of our constitution our guide. His challenge will be played out at home and abroad in the courts of our consciences and of public opinion. Do we believe in Law, or in its subversion? Can we hold on to the wisdom of Socrates and the hopes and ideals of our founders, or will we bow to the cynicism and power of the autocrat? Can we express our ideals in the testimony of our lives and the process of our institutions, or do we accept our fall?

How can Obama do it? How can we do it? How can our country reassert the ideal of American law?

I believe an answer lies in a combination of return to the most basic participatory element of our original constitutional design, projected to our citizenry and our world by our most modern technology: a reconception of the public American jury trial.

Central to our founding constitutional vision was the public jury trial—in a proceeding that was fully open to the public, in which the jury expressed the conscience of the community. The founders contemplated that the jury would act as a source of wisdom and moderation, as the ultimate judge of fact and law; it was to act as a check in our constitutional system of checks and balances on the otherwise unchecked discretionary prosecutorial power of the executive. No citizen could have his liberty taken away without the unanimous consent of an empowered, powerful jury of his peers. Participation in jury service used to be the most direct act of civic responsibility that a citizen could undertake.

This jury no longer exists. The jury’s function has been degraded over time to that of mere fact-finder. Now, we jurors serve only as subsidiary functionaries, determining whether the letter of the law has been broken. Arguments addressed to the jury’s wisdom and rightful power to check prosecutorial discretion are repressed as nullification. Jury service has become boring, often meaningless, and it is seen as a burden. We need to look back to our founding fathers. They intended the jury to be the bulwark of our liberty. Our modern juries should be and do no less.

What is more, we need to look forward. At present, our trials and our trial processes in the courts of the United States of America are effectively hidden from public view, seen and heard only by those few who attend. The only record of the whole proceeding is a written transcript that must be purchased to be seen, or such reports as those few in physical attendance choose to make. The constitutional ideal of government-of-and-by-the-people is hollow when the people lack the real and practical means to see and hear and understand the proceedings for themselves.

In the age of Internet we can open our courtrooms to complete, trustworthy, inexpensive, gavel-to-gavel access to our courts. True Internet access to court proceedings is key to reviving the central and ideal place of law in America. Our courts demonstrate the centrality of law and of constitutional rights every day. They aspire to (and often exemplify) the ideals of our government. Our courts affirm that we are a government under law. With Internet, all people all over the world can witness the administration of justice in America. Contrary to Cheney’s assertion that we need secrecy, force and torture to ensure our national security, we would achieve greater security by reasserting our openness and fairness. Instead of hiding our judicial process from public, our judiciary should open up its process. By demonstrating the quality of American legal process to our citizenry and our world, we show pride and respect for our country and our ideals. Respect breeds security and friendship.

We are the Internet generation. With enlightened leadership and our own willingness to step forward as civic participants in forming the collective consciousness of America, we can combine the power of the net and the power of our fundamental law to transform and project our understanding of ourselves. By opening the process of our courts to public access through the net and restoring the American jury to its rightful place in our democracy, I believe we will once again live the essential meaning of a government of the people under law, and represent this ideal to the world.


Charles R. Nesson ’60 is a professor at Harvard Law School and founder of the Berkman Center for Internet and Society.