Federalism by Jury in United States V. Fell‪.‬

Sixth Amendment jurisprudence has long sought to give practical form to the constitutional guarantee of a fair jury trial for the criminally accused. (1) Jury selection rules are designed to facilitate the impartial application of relevant law through the fact-finding function of a jury of one's peers. Until recently, courts have not addressed the potential conflict between jury selection rules and the possibility that a jury would be called upon to impose the federal death penalty even in states without the death penalty. Earlier this year, however, the Court of Appeals for the Second Circuit confronted the question of whether there is an insurmountable tension between the Constitution's guarantee of a trial by a jury of one's peers and the oath to uphold federal law over the law of the community from which the jury is drawn. (2) Although the Second Circuit discussed critical aspects of this new battle, it failed to hand down a clear decision on which future cases may dependably rely. Following the Second Circuit's decision in United States v. Fell, (3) a majority of the Second Circuit denied a petition for an en banc rehearing. (4) The exchange between Judge Raggi's concurrence and Judge Calabresi's dissent, however, heralded not only a new front in the constitutional battle over the federal death penalty, but also a larger debate about the nature of federalism in an age of seemingly unlimited federal power. Judge Raggi accepted the proposition that federal courts sitting in states without the death penalty should have the power to dismiss jurors who categorically oppose the death penalty. (5) Judge Calabresi's dissent, on the other hand, sought to craft a novel judicial rule that would render a state's death penalty laws binding on federal courts sitting within its boundaries. (6) Because both Supreme Court (7) and Second Circuit (8) precedent permit consideration of legal arguments sua sponte when the corresponding issues are properly presented, the court should have ruled on the difficult questions raised by Fell instead of denying the petition for an en banc rehearing and leaving the Sixth Amendment available as a potential vehicle for selective federalism.