Drug Policy

Where "is the constitutional grant of authority to ban mere possession of cocaine today?"

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Does the Constitution allow jury nullification? Thomas R. Eddlem certainly thinks so. As the Cato Institute's Tim Lynch details in a superb post, Eddlem was booted off a jury for daring to question federal drug laws:

The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where "is the constitutional grant of authority to ban mere possession of cocaine today?"

[…]

[District Court Judge William G.] Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn't going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the "problem juror." Once discovered, that juror was replaced with an alternate-over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

So who's right, Judge Young or citizen Eddlem? Here's legal scholar Randy Barnett:

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed.

For more on Eddlem and his jury nullification, check out this Boston Globe story. And don't miss the accompanying photo, complete with a copy of Judge Andrew Napolitano's A Nation of Sheep on Eddlem's table.

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  1. It sucks he was booted off the jury, but cheers to the guy for having the balls to advance nullification!

  2. All the sons of liberty should Hail F.I.J.A.!

  3. It’s a preposterous idea that the government has any authority to regulate what fully informed citizens decide to put in their bodies.

    Do what’s right.

    http://en.wikipedia.org/wiki/Jury_nullification

  4. Like the psycho fire chief earlier today, why don’t CATO, IJ, the LP, or some other formal or informal group send a strongly worded petition demanding the immediate unconditional dismissal of the offending parties on the thoroughly legal ground that they are evidently unable to do their jobs due to a gross misinterpretation of their authority?

    Quite frankly, Libs are pussies.

  5. I mean come on, the fucking commerce clause? Really?

    Give me a break.

  6. Wouldn’t it have been better if he’d just kept his mouth shut about the Constitution, and just voted to hang the jury?

    Did he really think he would unravel the drug war by passing notes to the judge?

  7. “Identify the problem juror”???

    This sounds like grounds for a successful appeal of those convictions. If the jury in fact has a right to judge the facts AND the law, then removing a juror for the latter is a violation of the rights of both the juror and the defendants. At very least, this is a mistrial. The judge ought to be slapped hard. I hope the defendants appeal and take this as far as it can go. Publicity for the fully informed jury idea can only help everyone guard the liberties we all have in common.

  8. I mean come on, the fucking commerce clause? Really?

    Give me a break.

    If the above was the actual verbatim content of the second juror’s note, that would be unspeakably awesome.

  9. Isn’t Judge Young a Reagan appointee? Just another example of the great divide between the Reagan Rhetoric and the Reagan Reality.

  10. THis is why I laugh whenever I hear the Grand Old Party and Federalist Society types preaching about “the rule of law.”

  11. This is why I laugh whenever I hear the Grand Old Party and Federalist Society types preaching about “the rule of law.”

    You laugh?! That’s sick. I bawl my eyes out. (No, I don’t. But I probably should.)

  12. LMNOP FTW

    TallDave with the assist.

  13. James Anderson Merrit-

    IMO, this is why judges should not have any immunity. In a truly free and civilized society each and every public sector employee should be held accountable for their actions-with no exceptions. Thus, Judge Young would be exposed to civil liability and ruinous damages.

    But, we live in a world where Harvard educated lawyers like Young must be shielded from liability lest “qualified” and “substantial” folk like him just would not enter “public service.” Oh, that would just be a damn shame.

  14. Elemenope-

    The laughter is an involuntary biological defense mechanism that kicks in every so often in order to supress MY RAGE! Given some (emphasis on some) of my posts, I am sure that you would agree that is a good thing.

  15. The juror:

    Thomas R. Eddlem, a 42-year-old technology coordinator at a Catholic high school and former John Birch Society official

    Cue the usual suspects to explain why the left has a “more libertarian” approach to “drug policy”.

  16. I was just joshing ya, mike. I laugh (usually at them, when I’m in person).

    The crying is on the *inside*.

  17. SIV:

    If you want to get into a pissing match over who raced faster to the gutter on drugs, the left or the right, you’re welcome to it.

    They both have different reasons to be stupid, and occasionally (and I’d say, at about the same rate) individuals occur on both sides of the divide that see the light.

    Oh, and then there’s the part where much if not most of the staff of organizations like NORML and SSDP are raging liberals. I know a few of ’em.

  18. Nullification is the very reason for the jury system. What do these judges who try to suppress it think, that random groups of citizens are used because some one thought they’re best qualified to determine the facts?

  19. Wouldn’t it have been better if he’d just kept his mouth shut about the Constitution, and just voted to hang the jury?

    Did he really think he would unravel the drug war by passing notes to the judge?

    Exactly what I was wondering. Sounds like this guy was more interested in taking the opportunity to expound his constitutional legal theory in a vain attempt to impress fellow jurors, if not the judge, than in helping the defendant. There is a time and place to make legal arguments, but that time is not when you’re actually sitting on a jury. Just keep your mouth shut, from jury selection to deliberations, and simply remain steadfast in voting to acquit.

  20. Jury nullification evolved in common law as an exception process to be used only in the rarest of circumstances. It’s intended to be used like an eject seat to prevent a miscarriage of justice.

    Using it to pursue personal opinions of legislation would destroy the rule of law. It would make trail by jury impossible. No one could ever predict the outcome of any trail on any matter. Justice would become a crap shoot.

    It may sound tempting in the case of the drug war but once you establish a precedent its use will spread uncontrollably into areas you won’t want to see it. For example, would you want to see pro-lifers nullifying the conviction of those who murder abortion providers or radical leftist letting people who destroy property and businesses go free?

  21. What do these judges who try to suppress it think, that random groups of citizens are used because some one thought they’re best qualified to determine the facts?

    I imagine that many of them haven’t though all that hard about juries, and think they are just a quaint historical anomaly to be handheld through the scary legal system.

  22. much if not most of the staff of organizations like NORML and SSDP are raging liberals

    El,

    Those organizations aren’t advocating anything like a laissez-faire “drug policy”.
    What they propose may be preferable to what we have but it isn’t exactly libertarian.

    Further reading indicates Thomas R. Eddlem would have voted to convict in a State Court.
    In light of the Federal Government’s role in creating and perpetuating those laws I find his position to be inconsistent.

  23. The article said Eddlem was against nullification. So what was he doing? Showing off?


  24. Using it to pursue personal opinions of legislation would destroy the rule of law.

    Shannon Love:

    You say that like it is a bad thing.

  25. I have to credit Reason magazine, which is one of my favorite magazines.

    I really didn’t think anyone would notice Judge Napolitano’s book on my kitchen table.

    I just brought it out as the Boston Globe photographer came up to the house.

  26. Cool, Mr. Nullification himself is here.

    So, since you are reading, I have to ask why you didn’t just vote to acquit instead of poking at the judge like that? But who knows, if your purpose was to raise awareness of nullification, this was probably the better way.

  27. Wouldn’t it have been better if he’d just kept his mouth shut about the Constitution, and just voted to hang the jury?

    Evidently. Lesson learned.

  28. Tom Eddlem,

    The story reports that you would have voted to convict in a State court. State law against cocaine commerce and possession is a result of “model legislation” authored by the Feds to comply with obligations under an international treaty (IIRC).In effect cocaine prohibition is mandated by International Law and our State laws exist to adapt this treaty obligation to our own system.

  29. LMAO, how dare a juror ( a mere peon) question a kangaroo judge in his kangaroo court room. LOL, how dare he. What a joke.

    JT
    http://www.FireMe.to/udi

  30. For example, would you want to see pro-lifers nullifying the conviction of those who murder abortion providers or radical leftist letting people who destroy property and businesses go free?

    Anybody so inclined will do so regardless. I know I will not convict somebody of drug possession even if Congress passes a Constitutional amendment outlawing nullification.

  31. LMAO, how dare a juror ( a mere peon) question a kangaroo judge in his kangaroo court room. LOL, how dare he. What a joke.

    Why do all of your posts start with LOL or LMAO. Get out.

  32. Shannon Love worries that jury nullification, once tolerated, would proliferate and that justice would grind to a halt if everyone felt free to acquit by virtue of personal disagreement with a law.

    I don’t believe that. I have served on a jury and from my own experience as well as from many other personal anecdotes I have seen, I think jurors are conscientious, curious, generally intelligent, and committed to the rule of (just) law. I think, statistically, courts will find that jurors are willing to honor most laws as written. But when the law is unjust or applied unjustly, jurors have a duty to prevent a miscarriage of justice. The occasional acquittal because of a “problem” juror is in the tradition of letting 1000 guilty defendants go free to prevent the unjust conviction of a single innocent. So be it; that’s the price we pay for erring on the side of caution. On the other hand, if so many different juries fail to convict, or if they acquit outright, in view of a particularly bad law or a particularly egregious pattern of mal-enforcement, then that provides good feedback into the system, that the law itself should be changed or scrapped, or that enforcement shouldn’t be as capricious or heavy-handed as it may presently be. This would not represent the failure of our system, but rather the success of its inherent checks-and-balances.

    A question you have to ask yourself: If the laws were trimmed back so that obstinate, arbitrary disagreement with the law by a juror happened only one in 1000 trials, or 1 in 10000, would there be enough law left on the books to prevent societal chaos? I would bet “yes.” Would trimming away the thicket of laws to the point where most juries, most of the time, would uphold the law as written, without hesitation, be a bad thing? I would answer, “not at all.”

    Let’s not use painkillers to treat the ills of the body politic. If there is pain (and jury nullification is definitely an expression of such pain), let’s trace the root cause and deal with it, that the entire society might regain full health.

  33. The reason “jury as trier of fact and law” was common at the time of the Founding was because judges were not independent under British law. They were servants of the Crown, expected to do the King’s bidding. John Adams’ oft-abused quote on nullification was made in 1771 and was referring to the King’s Court. Likewise, the Zenger trial (a colonial case before a British judge) was not a nullification of “the law,” but only of the judge’s biased instructions.

    Under the new, American notion of an independent judiciary — complete with motions to dismiss, motions for summary judgment, directed verdicts, JNOVs and of course appeals — it quickly became the standard for the jury to be limited to trying the facts.

    As early as 1794, Chief Justice Jay, while personally charging a jury in a civil action, reminded them that they were expected to limit themselves to questions of fact and leave questions of law to the judges.

    And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.” (Or is “the ends justify the means” now a core libertarian principle?)

  34. By the way, has anyone noticed that Eddlem is an anagram for “meddle?” I had just finished doing the daily Jumble before reading this article, and my mind was already in unscrambling mode, so I couldn’t help but see it.

  35. Kip,

    Some of us don’t want to play your game by your rules.

  36. Oh it’s even worse: Thomas R. Eddlem is an anagram for “Mr has to meddle.” Stop me before I unscramble again!

  37. Thomas R. Eddlem is an anagram for “Mr has to meddle.”

    Also:

    Hammered Dolts
    Halted Red Moms
    Hatreds Mold Me
    Dares Mold Them

    …all of which seem vaguely appropriate.

  38. And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.”

    You’re probably still waiting because it shouldn’t need explaining.

    Is simple honesty somehow the pinnacle of moral behavior? Clearly it is not. Depending on the facts of the situation, occupying the “moral high ground” may very well require lying to someone.

  39. “Hatreds mold me”

    Wow. I doubt I would have picked up on that one. Congrats LMNOP. But what an unfortunate anagram for someone who had once been associated with the Birchers. Now I’m sorry I brought up the topic.

  40. For example, would you want to see pro-lifers nullifying the conviction of those who murder abortion providers or radical leftist letting people who destroy property and businesses go free?

    You need all twelve jurors to be nullifiers to acquit on that basis. That’s not likely to happen.

  41. KipEsquire has a point. Our legal system is the highest and most ethical form of all human endeavor. The attorneys, judge and police are all scrupulously honest and always tell the truth. If one juror lies or fails to follow the instructions of his social superiors the entire system goes down the tubes and then where would we be? We can’t have amateurs making our laws. That is what judges, lawyers and legislators are for

  42. And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.” (Or is “the ends justify the means” now a core libertarian principle?)

    It’s time to flush the Kant out of your headgear, son.

    Lying to save a life, or even to save a livelihood, are almost self-evidently moral acts. Sure, it can be fuzzy around the edges (they aren’t, y’know, *imperatives*), but still. Even a moral infant knows that a joint or a line isn’t even in the same ballpark as a person’s life or livelihood.

  43. You need all twelve jurors to be nullifiers to acquit on that basis. That’s not likely to happen.

    You know full well that often times a hung jury ends up being a de facto acquittal because the state will not or cannot retry.

    I still agree that the walls won’t come tumbling down.

  44. State law against cocaine commerce and possession is a result of “model legislation” authored by the Feds to comply with obligations under an international treaty (IIRC). In effect cocaine prohibition is mandated by International Law and our State laws exist to adapt this treaty obligation to our own system.

    Not so. States were legislating on the subject before the feds, and I’m confident that they would’ve adopted approximately the same laws regardless of whether there was any federal or international law on the subject. The model laws were an attempt to achieve uniformity between the states, nothing more. The treaties say nothing about any requirement for state laws, and are not binding on the states, only on the signatories (nations). Libertarian activists have a tendency to conclude too much from marginal cases such as that of medical marijuana, causing them to think the feds or UN are responsible for ill drug policy in general.

  45. I recommend this article.

    It made me stop and think. I’m not so sure about the validity of jury nullification any more because of it.

    If you are a candidate for a jury on a case where you disagree with the law, you should probably recuse yourself at the earliest opportunity. If you misrepresent yourself during voir dire, isn’t that some sort of perjury? Besides, jury nullification in one case only hangs the jury or maybe acquits the accused in that case. It doesn’t repeal the law, which can be used again in other cases.

    As pointed out by others above, it can just as easily be used to acquit for reasons to which most of us on this blog would be opposed.

    CB

  46. James Anderson Merrit,

    I think jurors are conscientious, curious, generally intelligent, and committed to the rule of (just) law.

    Well, its the “just” part that is the problem. There are far to many disagreements in society about what constitutes “justice.” People could easily see juries as way of enforcing minority viewpoints that cannot find broad enough support to enter into law.

    This is always the temptation, to take an extraordinary power intended for rare exceptional cases and apply it to everything. And history suggest that is exactly what happens.

    We shouldn’t forget that serving on juries makes one an agent of the state and agents of the state must be restrained in the scope of their powers.

  47. The treaties[…]are not binding on the states

    Constitution memory FAIL.

    To wit:

    Article VI, Section 2
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  48. “””Do what’s right.

    http://en.wikipedia.org/wiki/Jury_nullification“””

    TallDave, that would require being on the jury. I hear that’s something intelligent people know how to avoid.

    “””because the Supreme Court has interpreted the commerce clause quite expansively.”””

    Like it or not the judge is correct. Consider the number of federal crimes in 1919 compared to today thanks to SCOTUS’s application of the commerce clause.


  49. We shouldn’t forget that serving on juries makes one an agent of the state and agents of the state must be restrained in the scope of their powers.

    A nullifier would be restraining his and the State’s power to deprive an individual of Life,Liberty and/or Property.”Justice” might not be served by the Court in that particular case(as in the vast number of crimes which aren’t prosecuted).

    Drug prohibition is just one area of law outlawing behavior not involving force/fraud/coercion. I don’t see any option for repealing those laws en mass.
    I would consider the power of jury nullification to bring down the whole judicial system to be a feature, not a bug.
    Think of it as creative destruction. Some institution/system/custom will arise to meet the necessary function. Ideally it wouldn’t have to be part of the State.

  50. And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.”

    If you cannot understand why lying might be the real ethical (as opposed to that oxymoron called legal ethics) thing to do, then you are an idiot as are many esquires.

    Of course if you are a die hard Kantian, this probably won’t change your mind. But the example my philosophy professor gave. Say it is WWII and you are sneaking jews accross the english channel and a nazi patrol boat intercepts you and asks you whether you have any jews aboard? Do you do the Kantian thing and tell the truth? Me, no. Fuck Kant.

    Another more personal experience. My wife was several months pregnant and didn’t feel very good about herself. She put on some negligee, which, to tell you the truth, looked kind of funny/dorky. She asked me how it looked? I lied my ass off and said she was the hottest girl in town. Again, Kant could go fuck himself.

    So, I don’t think I would have a problem lying if I thought a conviction was going to send an otherwise peace loving, non- violent person to prison where they would get fucking ass-raped all because they smoked some meth or weed, or whatever.

    Back to the point at hand……

    What is the fucking point of the jury system if they can just throw off jurors until they get the fucking verdict they want? The moral and intellectual vacuity of the law often makes me ashamed of my esquire status. Apparently not for Kip, though.

  51. “He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.”

    Now that’s depressing…you would think someone would ask a few tough questions now and then…

  52. “Problem Juror”, my ass. That trial had a problem judge. Motherfucker should be prosecuted for violating the defendant’s civil rights.

    -jcr

  53. It’s clear that we need to repeal the commerce clause. Its purpose was to prevent the states from enacting internal trade barriers, not to give the federal government carte blanche to interfere in anything and everything we do.

    -jcr

  54. CB – “File Not Found” at your link.

  55. Eddlem is a hero but it is sad he was kicked off. Perhaps he should have just claimed there was “not enough evidence to convict.” That may be what jurry nullifiers need to do from now on. Even if there are thousands of witnesses and high quality video it is still “not enough evidence” to convict.

  56. Fuck Kant.

    That’s rather more succinct than what Ayn Rand said about him.

    -jcr

  57. It’s clear that we need to repeal the commerce clause. Its purpose was to prevent the states from enacting internal trade barriers, not to give the federal government carte blanche to interfere in anything and everything we do.

    Rewrite rather than repeal, Or repeal and replace. Simply removing the commerce clause will result in internal tariffs so fast it will make all of our heads spin. One need only look at out of state mail order wine to find a good example.

  58. If democracy already got us to these laws, how is more democracy going to help, in the form of jury nullification?

    Don’t be sheep — face facts:

    America is going to have to break up into at least a liberal nation and a conservative one, and possibly along ethnic lines, religious lines, etc.

    It’s too big and too disunified.

  59. And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.”

    So if some thugs show up at your door toting blood-stained machetes and demand to know if you’ve “seen some fucking (insert name of ethnic group here)”, is telling them the truth about the whereabouts of said members of an ethnic minority occupying the “moral high ground”?

    On an entirely unrelated question, if thugs officers of the court are seeking to lock someone up for a very long time for putting certain banned substances in their body, and not harming anyone else, is it occupying the “moral high ground” to tell the truth and admit you have no intention of going along with their pernicious agenda?

  60. Anti-Globalism, I no longer blelieve in “democracy” I believe each adult person is his or her own monarchy.

  61. Wouldn’t it have been better if he’d just kept his mouth shut about the Constitution, and just voted to hang the jury?

    Ditto. Many FIJA proponents are straying into kook territory. The only practical use of FIJA today is to guarantee that you don’t have to serve on a jury. Just let it slip that you believe in FIJA and you’ll be instantly dismissed.

    But regardless, there is no law that says a juror must vote to convict. So keep your mouth shut and hang the jury.

    p.s. Removing jurors one by one until you finally get the desired guilty verdict is bullshit. Once you’re in the jury room, and you didn’t get their by lying, you get to stay in the jury room.

  62. Using it to pursue personal opinions of legislation would destroy the rule of law. It would make trail by jury impossible. No one could ever predict the outcome of any trail on any matter. Justice would become a crap shoot.

    Bullshit. This goes back to Jefferson and Adams, and only recently has it been curtailed. Rule of law managed to survive just fine.

    I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution. — Jefferson

    “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

    – Adams

    So keep your mouth shut and hang the jury.

    I think that’s about all you can do. Say you vote to acquit, if asked to explain why simply say you aren’t required to explain.

  63. Anti-Globalism, I no longer blelieve in “democracy” I believe each adult person is his or her own monarchy.

    Democracy is Athens voting to kill Socrates. We’re a liberal democratic republic.

  64. TallDave, that would require being on the jury. I hear that’s something intelligent people know how to avoid.

    Yeah, that’s half the problem.

    the fucking commerce clause — Like it or not the judge is correct.

    Sure, it’s the law that’s wrong.

    The drug war has nothing to do with “commerce.” It’s a moral judgement on what you’re allowed to ingest.

  65. TallDave,

    Good point. But it still allows those with the greater numbers, not greater qualifications, to determine policy.

  66. Yeah, we need more liberty and less democracy.

    Fareed Zakaria’s book, the Future Of Freedomn, had some good chapters on this.

  67. For the record, I’m not a nullifier. I took an oath to apply the “facts and the law as the judge presents” in the case. The judge began the case with a 45 minute sermon on the Constitution.

    And I didn’t want to ask the judge a question. The foreman and others in the jury prevailed upon me to ask a question, and I told them the judge would not reply with anything but a “because I said so.” And he did.

    I didn’t want on the jury, and I didn’t seek out any spotlight. My firmness in keeping my oath brought the spotlight.

  68. Tom,

    Thank you.

  69. The treaties[…]are not binding on the states

    Constitution memory FAIL.

    To wit:

    Article VI, Section 2
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

    No, read the treaties. They don’t require the signatories to have their sub-jurisdictions adopt any particular laws, only that the substances in question be controlled at the national level.

  70. That means federal control is constitutional.

  71. Since in this case the treaties are unconstitutional and thus unlawful.

  72. Robert,

    The US federal government has no legitimate authority to control drugs except in commercial dealings between the states, so the treaties are invalid anyway; the feds can’t legitimately make a treaty that delegates powers to themselves they are not authorized to have.

    As for the commerce clause:

    a) There is no authority for judges to amend the constitution, either in article V, or in article 3, section 1 (or anywhere else.) Go on, go read them. They’re not long. I’ll wait. Ok, nothing like that in there. So how judges have “interpreted” the commerce clause is irrelevant. It means what it says unless amended, and they can’t do that. Funny, huh?

    b) Judges have authority to determine outcomes under the law, but not to re-define the law. See article 3, section 1. The following are the powers of the Judiciary: (1) the power to try federal cases and interpret the laws of the nation in those cases; (2) the power to declare any law or executive act unconstitutional. Do you see the power to write or rewrite law in there? No? Funny, huh?

    c) The commerce clause gives the government authority to regulate commerce *between* the states, not within them. The commerce clause, in context, and in its entirety: The congress shall have the power… “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” You see the power to regulate commerce WITHIN the states? No? Funny, huh?

    These are the facts that underlie the unauthorized power grab that is the US federal legal machine today.

  73. Why are treaties unconstitutional? There is no limit on treaty power.

  74. Why are treaties unconstitutional? There is no limit on treaty power.

    Interpretive quandary, but since the power of the President to treat and the power of the Senate to confirm treaties originates in the Constitution, treaty as law are still subordinate to that Constitution, and may not conflict with its restrictions.

  75. Whatever, this treaty does not require the states of the USA to adopt any laws on the subject. The Model Controlled Substances Act is purely advisory, and it was adopted long after all of the states already had prohibitory laws on the subject. So don’t get the idea the whole thing is some idea the big, bad feds imposed on the states.

    Oh, and before the states legislated on the subject, municipalities had started to.

  76. Judges and Lawyers hate Jury Nullification because it limits their power in the System.
    The outcome can no longer be reliably predicted and case law is tossed aside. Lawyers control it all… they direct the mounds of legislation and enact the laws as Senators and Congressmen (approx 40%), they prosecute and defend the accused, they preside over the trial and many times render the verdict as Judges.
    Ever wonder why nothing is ever accomplished in Washington? Everything they want to get done GETS DONE…
    What should we expect of men whom make manipulating words and deceiving others a career?

  77. Pre-Harrison drug policy is a bit of a mystery to me. Were the laws against use and possession or just regulation of commerce? Were they enforced?

    The original uniform state narcotic laws were written by the Federal Narcotics Bureau and the AMA.

  78. Why are treaties unconstitutional? There is no limit on treaty power.

    Constitutionally speaking, there are limits, and there is no “interpretive quandary” unless you can’t read or are a sophist accustomed to reading “black” as “white.” Article VI:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    See the specific descent of authority? The treaties are made “under the authority” of the United States.

    So — for instance — since the United States doesn’t have the legitimate authority to conduct searches and/or seizures without a warrant, it can’t gain legitimate authority to do that via a treaty.

    The only way for the feds to legitimately gain a forbidden or non-enumerated power or lose an enumerated, assigned or granted power is via article V, which covers amendment.

    None of which has served to stop the federal government from taking any power it wants to have or feels would be convenient; but the point is that these are unauthorized power grabs by a government out of control, not legitimately authorized powers that descend from the authority of a willing populace.

    The entire point of the constitution is to define what the legitimate authority of the government is, and to provide a method (via the judges) to prune away any powers that are taken by legislators and/or the executive in violation of that authority (and their oaths.) Judges are explicitly given the authority to find laws unconstitutional. They can’t make new law or re-define existing law, but they can un-make existing law. This is a “checking” power against the legislature. Likewise, they can find the actions of the executive — the president — unconstitutional.

    For instance judges “defining” that the granted authority to “regulate commerce between the various states” means that the feds can “regulate within the states in any manner it so chooses” is not a granted power of the judiciary and so cannot result in legitimate authority for the feds.

    The government is defined as a constitutional republic; but it has, without authorization, turned itself into a ruling aristocracy of 545: 400 representatives, 100 senators, 9 judges, and the president. These people are currently beholden to the constitution in only the loosest, most cursory manner and have repeatedly demonstrated that when they and the constitution differ, they will prevail. Of the bill of rights, the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, and 10th have all been in part or wholly ignored by the 545; the commerce clause, the absolute prohibitions against ex post facto laws, Article 3, and many others have been “interpreted” far beyond any rational or common sense point by sophists and worse.

    I honestly don’t think there is a remedy at law, since lawmaking no longer follows the rules. I don’t think revolution is in any sense practical or possible; the majority is perfectly comfortable, and that’s the trump card right there. However, I do think that like all civilizations where rule is by fiat rather than reason, systemic failures will prevail where reason could not — look at the monetary policies for a good example of fiat management failures with society-wide consequences of immense proportions; at Iraq and Afghanistan for examples of failure of diplomacy and common sense and the outbreak of a series of unaffordable decreed wars; At the nearly complete breakdown of the population’s respect for law from drug laws to copyright laws to sex laws and so on. America is a modern-day Rome; looks like it won’t last nearly as long, though.

  79. “As early as 1794, Chief Justice Jay, while personally charging a jury in a civil action, reminded them that they were expected to limit themselves to questions of fact and leave questions of law to the judges.”

    Here is the exact quote:

    “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”

    *Georgia v. Brailsford,* 3 U.S. 1 (1794)

    Sadly, this was basically overruled in Sparf v. U.S., 156 U.S. 51 (1895), but there was a vigorous dissent from Justice Horace Gray.

    Having juries judge the law is not the same as nullification. Nullification is when a jury or judge or government official ignores the law to deliberately set a guilty person free even though the evidence shows the person’s guilty beyond a reasonable doubt. More generally, nullification could be seen as ignoring the law by those responsible for interpreting and enforcing it.

    Of course, we all know that juries are the *only* ones who ever nullify the law. Judges, cops, and other government employees always scrupulously fallow the law. If a juror interptets the law differently than the judge (for example, by interpreting commerce among the states to mean, you know, commerce involving more than one state, rather than possessing drugs within the boundaries of a single state), then obviously it’s the juror doing the nullifying, not the judge who is all-wise and always knows exactly what the Constitution means.

  80. If we don’t want to bother jurors’ pretty heads with the law, then just have them render *special verdicts* stating the facts they have found, and then let the judge pronounce the defendant guilty or not guilty based on applying the law to the facts found by the jury. Thus, jurors could say, “we find beyond a reasonable doubt that the defendant possessed x grams of cocaine in his house in New Jersey,” as alleged in the indictment. Then the all-wise federal judge could pronounce the defendant guilty based on these facts, based on the “legal” conclusion that possessing drugs automatically implicates interstate commerce.

    If jurors are forced to promise to “decide all issues” in a case, and then are asked to rule “guilty” or “not guilty,” then the jurors are morally responsible for any legal errors behind their verdict. If they say, not only “yeah, he possessed x amount of cocaine,” but add that “he is therefore guilty under federal law,” the jurors have become complicit in any constitutional violations committed by the court.

  81. Ben,

    You unfairly malign sophists. They don’t read “black as white”, The read “blue as green”. And the text on the matter is about as clear as I made it out to be (which, incidentally is the same conclusion you came to).

    Mad Max @ 5:47 pm,

    Interesting point.

  82. In my county they send a questionaire to every one picked for the juror pool. One question asks, “Will you follow the Judges directions regarding the law.” I answer, “Sure, unless it violates my rights to engage in Jury Nullification when I see fit to exercise this right.”

    Three times now, I have not been summoned to serve. Go figure.

    Trial by jury is trial by 12 people to stupid to get out of jury duty.

  83. Interpretive quandary, but since the power of the President to treat and the power of the Senate to confirm treaties originates in the Constitution, treaty as law are still subordinate to that Constitution, and may not conflict with its restrictions.

    Easily illustrated with everyone’s favorite amendment, the First:

    The US could not enter into a valid treaty which obligated it to arrest and lock up people who speak out against foreign governments.

  84. Good for the Juror!!!
    This is an example we can all emulate!!
    This is the reason I live for!!

    rationi magis quam sensui spatulas nostri iudici podiamus!!

  85. Under the new, American notion of an independent judiciary

    It’s not an independent judiciary when the prosecutor and the judge work on the same side.

  86. Why do people bring up nullification when ZERO nullification occurred?

    The judge instructed the jury to apply the commerce clause of the US Constitution. The juror applied the commerce clause and correctly decided that the law had not been violated and therefore could not apply a “guilty” vote.

    The problem here is that the defense agreed to the other 11 on the jury.

  87. Jury nullification evolved in common law as an exception process to be used only in the rarest of circumstances. It’s intended to be used like an eject seat to prevent a miscarriage of justice.

    Using it to pursue personal opinions of legislation would destroy the rule of law. It would make trail by jury impossible. No one could ever predict the outcome of any trail on any matter. Justice would become a crap shoot.

    It may sound tempting in the case of the drug war but once you establish a precedent its use will spread uncontrollably into areas you won’t want to see it. For example, would you want to see pro-lifers nullifying the conviction of those who murder abortion providers or radical leftist letting people who destroy property and businesses go free?

    Wow, talk about argumentum ad extremum. Really? Jury nullification in rape trials? Murder trials? Maybe in instances like the Duke rape case, but I doubt it would become a crap shoot.

    Try again with out all the histrionics and silly arguments.

  88. We can’t have amateurs making our laws. That is what judges, lawyers and legislators are for

    Following this to its natural conclusion, can we really afford to have amatuers voting as well. Down with democracy I say!

  89. “””Say it is WWII and you are sneaking jews accross the english channel and a nazi patrol boat intercepts you and asks you whether you have any jews aboard? Do you do the Kantian thing and tell the truth? Me, no. Fuck Kant.”””

    I doubt Kant himself would have told the truth, dispite what his philosopy might say. Something about self-preservation.

  90. And I’m still waiting for someone to explain how lying — either before the fact to get on the jury or after the fact by not seeking recusal, constitutes “the moral high ground.”

    One could easily argue that questions about one’s political or philosophical beliefs are so offensive to justice that their inclusion in voir dire requires no respect. Limit the voir dire questions to the ones the court should have a right to ask, and I’ll tell the truth. If the questions themselves are illegitimate, I am under no moral obligation to answer them truthfully.

    But the broader issue is, naturally, one of the legitimacy of a given government action. If a government pursues unjust policies, a citizen has a moral right to resort to insurrection against that government. Most of the time it would not be prudent to do so, and most of the time we’re all better off because people tolerate what they perceive as injustice rather than continually resorting to revolution. But the moral right remains. And since insurrection involves killing representatives of the state, in a situation where you have the moral right to insurrection, you obviously have the moral right to lie. Otherwise you’d have a situation where you can morally kill a judge, but not morally lie to him, and that seems a bit absurd, don’t you think?

  91. Democracy is Athens voting to kill Socrates.

    Actually, this incident is even more on point than this, because the anti-nullification argument relies on the idea that the law is superior to justice, a notion which Socrates argues in favor of – very unpersuasively – while choosing to accept the unjust verdict levied upon him.

    So you could edit this statement to say, “The anti-nullification argument is Socrates drinking the hemlock instead of just walking away free.”

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