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Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or physical defect, from demonstrably bad character, or from bias. No one has seriously argued that American jury service ought to be determined wholly by lot, as it was among the citizens of Athens. In addition, it has been the uniform policy of American jurisdictions to excuse from service some who are competent, but whose service would work a hardship on them or others: doctors, ministers, and parents who care for small children have been exempted from service on such grounds.


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