(concurring specially).
While I concur with the court’s ultimate decision that Minn.Stat. § 593.01 (1986) violates article I, section 6 of the Minnesota Constitution, I do so on somewhat narrower grounds, and, therefore, write separately-
In 1857 when the framers of Minnesota’s constitution used the word “jury” in article I, section 6, the word was generally understood by all to have the connotation it had always borne under territorial law. Under territorial law a jury in a court of general jurisdiction consisted of 12 eligible voters. At the time nonwhites and women were generally excluded from being eligible voters. See, e.g., Whallon v. Bancroft, 4 Minn. 109, 113 (Gil. 70, 74) (1860) (discussing Rev.Stat. (Terr.) ch. 126, § 160 (1851)); State v. Everett, 14 Minn. 439 (Gil. 330) (1869).
In the ensuing 130 years the composition and characteristics of the jury have been substantially altered as the result of several federal and state constitutional amendments. Thus, non-Caucasians automatically became eligible for inclusion in the jury pool by Amendment XIV, § 1, and Amendment XV of the United States Constitution. Women automatically became eligible by virtue of Amendment XIX to the Constitution of the United States and amendment to Article 7, § 1 of the Constitution of Minnesota. Until 1890, constitutionally a jury verdict had to be unanimous, but by an amendment that year to art. I, § 4, of the *387Minnesota Constitution, the unanimity requirement was altered to permit a five-sixth verdict. It should be noted that the change in the composition and characteristic of the jury was in each instance the product of a constitutional amendment. In no instance, until enactment of Minn.Stat. § 593.01 (1986), has an attempt been made to alter the jury’s composition by statute, thereby bypassing the amendment process. Moreover, all of our cases have held that a jury consists of 12 persons. See Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 209, 68 N.W. 53, 55 (1896); State v. Rosenberg, 155 Minn. 37, 38, 192 N.W. 194, 194 (1923) (where, albeit in dicta, the opinion specifically stressed the 12-person jury requirement.)
From this history I conclude: (1) that the understanding of the territorial legislatures was that a jury consisted of 12 persons; (2) that the word “jury” used by the founders in article I, section 6 carried with it that territorial connotation; and (3) that absent constitutional amendment, this court, when presented with issues relative to jury composition, has invariably held that a jury consists of 12 persons. On this narrow ground I join the court’s opinion.
Whether the size of the jury in certain civil or criminal cases should be reduced to a number less than 12 entails the consideration or reconciliation of conflicting viewpoints on important constitutional, jurisprudential, fiscal and practical policy issues. Should the legislature conclude to re-address those issues, it should seek authority from the electorate by constitutional amendment in like manner as it did when article I, section 4 of the constitution was amended in 1890.