concurring in the judgment only.
' Once again a majority of this court offers its opinion about the constitutional basis for 12-person juries, maj. op. at 694-702; see People v. Burnette, 775 P.2d 583, 589 n. 6 (Colo.1989); People ex rel. Hunter v. Dist. Court, 634 P.2d 44, 46 (Colo.1981), this time, however, opining that the state constitution actually does provide felony defendants with such an entitlement. In light of its holding that misdemeanor prosecutions . must, by their very nature, fall within an exception for “criminal cases in courts not of record,” and therefore ’ that misdemeanor defendants would not- be constitutionally entitled to 12-person juries in any event, the majority’s broader conclusion about the number of jurors implied by the phrase “trial by jury” is clearly unnecessary to its holding and can only be characterized as an elaborate dictum. *710If I agreed with the majority’s construction of the express provision for “courts not of record,” I would be content not to reach out for this difficult question, which the General Assembly has avoided forcing upon us since we became a state. Because I agree, however, with neither the majority’s conclusion that the term “courts of record” was intended to refer to crimes punished a certain way rather than to courts affording a certain kind of process in prosecuting them; nor. its opinion that a constitutional entitlement to a jury of 12 in felony prosecutions is implied, even though none specifically appears in the constitution, I would hold that nothing in our constitution bars the Colorado General Assembly from prescribing an appropriate number of jurors for trials in courts of record any more than in courts not of record.
In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the United States Supreme Court addressed at length the question whether the 12-man requirement of common-law juries was an “indispensable component of the Sixth Amendment,” and whether it was the “intent of the Framers ... to equate the constitutional and common-law characteristics of the jury.” Characterizing the composition of the 12-man common-law jury as “a historical accident,” and as “wholly without significance ‘except to mystics,’ ” the Court held that “[t]o read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution.” Id. at 102-03, 90 S.Ct. 1893. The Supreme Court therefore held not only that the 12-man requirement was not an “essential feature” of the right to a jury trial, such as to require its incorporation in the due process clause of the Fourteenth Amendment, but. that it was not even included in the federal Sixth Amendment.
Prior to Williams, the prevailing presumption (often with little support) was clearly that constitutional provisions preserving inviolate the right to a jury trial' included a requirement that the jury consist of 12 members. Since Williams, a handful of state courts have considered the question, several agreeing with the Supreme Court, see In re Public Law No. 305 and Public Law No. 309 of the Indiana Acts of 1975, 263 Ind. 506, 334 N.E.2d 659 (1975); Pitcher v. Lakes Amusement Co., 236 N.W.2d 333 (Iowa 1975), and several others, usually in reliance upon their own pre-Williams holdings, disagreeing, see Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994); Blum v. Merrell Dow Pharm., Inc., 534 Pa. 97, 626 A.2d 537 (1993); Brame v. Garwood, 339 So.2d 978 (1976); Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974); Advisory Opinion to Senate of the State of Rhode Island and Providence Plantations, 108 R.I. 628, 278 A.2d 852 (1971). The majority in this case does not dispute the Supreme Court’s scholarship or challenge its conclusion that the 12-man requirement is not an essential feature of the right to a jury trial. Instead, relying on an additional provision in our constitution specifically permitting juries of fewer than 12 in certain enumerated situations, and on an 1860 Missouri Supreme' Court case finding the right to a jury trial, as guaranteed in that state’s constitution, to require a 12-person jury, the majority concludes that the framers of the Colorado Constitution intended to prohibit the general assembly from altering in any way the traditional number of jurors, except where expressly authorized by the constitution itself.
I disagree with the majority’s inference of an intent on the part of the framers that juries necessarily consist of a specific number, derived entirely from examples demonstrating their willingness to allow otherwise. The single sentence upon which the majority’s analysis hinges is: “The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than 12 persons, as may be prescribed by law.” Colo. Const. art II, § 23. Awkwardly conjoined as these two independent clauses may be, they clearly are not related as a general rule and exceptions or provisos to it, as the majority suggests, but rather as separate propositions about the right to jury determinations in various civil and criminal proceedings. Permitting a jury of less than 12 persons in civil cases can by *711no stretch of the imagination be considered an exception to the proposition that a right to trial by jury shall remain inviolate in criminal cases. Even with regard to criminal trials, the language chosen by the framers clearly does not preserve inviolate a right to 12-person jury trials in all but courts not of record. To the contrary, by preserving the right to jury trials in all criminal cases, which the first proposition clearly does, it could not implicitly include a 12-person limitation without openly conflicting with the second proposition, which just as expressly permits fewer jurors in some criminal cases.
The majority’s forced construction rests primarily on its justification that unless the framers intended to limit criminal jury trials to 12 members, they had no need to mention any examples of proceedings permitting fewer jurors. But it is not uncommon, and clearly is rational, as a drafting technique to mention specific cases simply to insure clarity with regard to their inclusion or exclusion from a general category. It is no less legitimate or common to narrow a proscription by expressly providing examples that fall outside its boundaries than to define a proscription broadly and expressly provide exceptions that fall within its boundaries. Because undoubtedly the “usual expectation was that the jury would consist of 12,” Williams, 399 U.S. at 96-100, 90 S.Ct. 1893, it would not have been unusual to feel the need to expressly ratify different practices already in use. Specifically noting cases in which juries of fewer than 12 were already accepted, however, is a far cry from intending to forbid all deviations from the 12-person jury model, except those expressly mentioned. Although it is likely that the framers of our constitution, precisely like those of the federal constitution, gave little thought to the question faced by the court today, id. at 102-03, 90 S.Ct. 1893, “there is absolutely no indication in ‘the intent of the Framers’ of an explicit decision to equate the constitutional and common-law characteristics of the jury,” id. at 99, 90 S.Ct. 1893.
Perhaps because we had not attempted to resolve this question before the Supreme Court ruled in Williams, and to the extent that we had addressed the question since Williams, we had .opined that a 12-person jury was'not a matter of constitutional necessity, Burnette, 775 P.2d at 589 n. 6 (Colo.1989); Hunter, 634 P.2d at 46, the majority seeks to saddle us with Missouri precedent, on the grounds that because our constitutions contain somewhat similar -provisions, the framers of our, constitution must have intended to adopt Missouri’s interpretive case law. See maj. op. at 24-25. The interpretive aid to which- the majority refers can perhaps have merit when a statutory or constitutional provision is expressly borrowed from another jurisdiction with the intent of preserving its application in toto, but when provisions are merely similar or come from a common source, much less where a borrowed provision has been amended in material part, the interpretive aid has little, if any, value. The majority suggests that our framers intended to adopt pre-civil war case law from Missouri, interpreting that state’s 1820 constitution, thrice removed from its 1875 constitution, which the majority finds similar in key respects to our own, because in 1978, more than a century after the adoption of our constitution, the Missouri Supreme Court held that the pertinent provision of the 1875 constitution, although substantially different in language, did not intend to overrule case law construing the term “trial by jury,” in the 1820 constitution, to mean trial by a jury of 12. Perhaps most ironic in this chain of reasoning, the case law our framers purportedly sought to adopt from Missouri, Vaughn v. Scade, 30 Mo. 600 (1860), interpreted its constitution as preserving the right to 12-person jury trials in civil cases, while our own constitution expressly permits fewer than 12-person juries in civil cases, in a provision we have construed to guaranty no right to civil jury trials at all. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901, 906 (Colo.1993).
With regard to the majority’s dicta on felonies, as well as its holding on misdemeanors, I would be guided more by the language actually chosen by the framers. On the one hand, the majority finds a constitutional limitation on the power of the legislature solely from words of permission; and on the other, it expands those same words of permission to include misdemeanor cases tried in the coun*712ty courts, which cannot possibly be derived from the constitutional language itself. Ironically, with respect to the question actually before us — whether the defendant was entitled to demand a 12-person jury for his misdemeanor trial — the answer would have been the same had the majority merely applied the language of the constitution as it was written. By ascribing to the framers an-intent to incorporate as constitutional limitations at least some'of the traditional (if mundane) incidents of a common-law jury, the majority all but strikes down the general assembly’s attempt to' avoid mistrials upon the dismissal of a juror for. cause during deliberations; see § 18-1-406(7), C.R.S. (2004); and I believe needlessly ties its hands with regard to the practical development of the jury system in criminal prosecutions.
Therefore, I respectfully concur in the judgment only.