Jury Nullification

The Originalist Case for Jury Nullification

Is there a place in our system for a jury to acquit because the jurors believe the underlying law is unconstitutional?


Library of Congress

Does jury nullification undermine the rule of law? Or is there a proper place in our criminal justice system for a jury to acquit, not because the jurors believe there is insufficient evidence of a defendant's guilt, but because they believe the underlying law is unconstitutional?

The conservative legal writer Mark Pulliam and the libertarian law professor Ilya Somin have been debating these questions this week. Pulliam views jury nullification as "brazen lawlessness and a prescription for arbitrariness." As he puts it, "if a juror (or any other member of the political community) feels that a particular law is unjust—and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust—the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law."

Somin concedes that nullification may undermine the rule of law in some cases, but that's a price he's willing to pay. "In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce," Somin writes. "With so many lawbreakers to choose from, police, prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials."

Somin makes several good points. He could have added that nullification has a historical pedigree that should impress constitutional originalists. There's good evidence that many 18th and 19th century Americans understood juries to possess the lawful power to reject guilty verdicts when the jurors believed the underlying law was unconstitutional.

Consider the writings of John Taylor of Caroline. A Revolutionary War veteran and widely read political and constitutional theorist, Taylor described juries as the "lower judicial bench." Under this view, just as judges (the "upper bench") possess the power to declare laws unconstitutional, so too do juries (the "lower judicial bench") possess their own version of a veto power. In other words, just as both the Senate and the House get to vote on legislation, both the upper and lower judicial benches get a say-so on the constitutionality of legislation. Juries, Taylor wrote, "judge really and substantially in every case."

James Wilson, a signer of both the Declaration of Independence and the Constitution, made a similar point in his 1791 lectures on law at the College of Philadelphia. "Whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature," Wilson said. "When a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge." Juries, of course, are "called to act" in our criminal justice system.

Thomas Jefferson, in a 1789 letter to Thomas Paine, expressed what many members of the founding generation thought about this issue. "The trial by jury," Jefferson wrote, is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." How might a jury do this? By standing as a bulwark against overreaching government and by refusing to enforce unconstitutional laws. No jury is going to anchor the government to its constitutional principles by mechanically carrying out the government's bidding. As that famous observer of early American institutions, Alexis de Tocqueville, concluded in Democracy in America, the jury "places the real direction of society in the hands of the governed, or a portion of the governed, and not in that of the government."

Perhaps we should not think of jury nullification as a bug in the system. Perhaps we should think of it as a feature.

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  1. the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

    Sure, because legislatures consist entirely of the most thoughtful, compassionate, and wise people society has to offer.

    1. Funny thing about “ignoring the law” type of statement, as much of the law is created by the judicial branch.

      I am a Rule of Law type of guy but that applies to laws as written by legislators so everyone can read and understand what is illegal and why.

      When even lawyers cannot possibly know all the laws, there is a fundamental disconnect between the idea of limited government and what we currently have.

      1. the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

        Hunh. So the remedy is to ask the legislators who passed a law because they felt it was in their personal interest to do so because they want to win elections , and who have failed to repeal the law since then, to do something that would harm their personal interest in getting reelected, because a handful of the citizens they generally scorn refused to uphold that law in one instance?

        People respond to incentives. Not seeing the incentive for legislators to respond to such petitions.

        1. No. The solution is as set up in the Constitution is to vote different representatives into office, for redress of grievances, juries deciding guilt, and armed rebellion against a tyrannical government.

          1. How does replacing representatives (who may or may not repeal the law in question) in some future election help the person who is on trial?

            A judge is just another person. Being appointed or elected to the position does not give a judge some magical insight into the nature of a law that the rest of us can’t have, too. To grant a judge sole authority over another person’s life and property is the kind of tyranny that the country was founded to reject.

            Even the appeal process is flawed: Is there any requirement on government to compensate an accused person for lost time, money and freedom when they are acquitted by a higher court?

  2. Jury nullification is the check and balance to prosecutorial and judicial abuse of power. That and impeachment but that involves the Legislators forcefully firing fellow authoritarians which puts a damper on future authoritarianism.

  3. Legislatures can make their decisions in the abstract. Juries shouldn’t.

  4. I’ve always had the idea that the jury represented “We the People”. Our representatives in government are elected on the theory that we will elect the wisest and most able among us* to make the laws as we would make them if we were as wise and knowledgeable as they but in the end you still have to come back to the authority of the people in asking “Is this what you meant by this law?” Jury nullification is just We the People saying “Nope, we didn’t give our representatives the authority for this bullshit.”

    * We all know those who get elected are those who have a demonstrated ability to win elections and getting elected to office is a different skill set than administering the office. It’s why you wind up with so many shitweasels in office.

  5. What the hell do 12 randos know about the Constitution? They should just listen to what the judge, being a Top Man, tells them about the law and how it is to be interpreted.

    1. Is this sarcasm or are you serious?

        1. No, in that case it becomes cynicism.

          1. How so?

            If you’re going to have statutes that must conform to a constitution, and you’re going to have jury trials, it makes sense to say that juries have just as much right to judge constitutionality as judges do. At the same time, a fault of juries is that they’re not judges or necessarily reasonable or informed, so having them decide constitutionality is also pretty silly.

            ‘course, if you place a high value on reducing legislation, jury nullification is totes worth it.

            1. I was referring to being both sarcastic and/or serious. When your both sarcastic and serious at the same time its really just being cynical.

              I actually mostly agree with your sentiments about jury nullification.

            2. Who cares if juries are acquitting people. I would rather have a thousands murders go free than one innocent person wrongly convicted.

              Its when juries convict people based on layman’s incorrect notions of Constitutionality or legality that is the problem for the government.

              The government does not want checks to its power and jury nullification is just that. It would be impossible to convict any enemy of the state if juries simply acquitted them based on jury nullification.

      1. It’s sarcasm, and honestly, for once MJ and I seem to agree with exactly what the problem is in this topic. The idea that some bureaucrat is our master.

    2. This may be sarcasm, but the first line isn’t actually wrong. Most folks don’t know much about the Constitution, probably couldn’t identify which amendments makeup the Bill of Rights, had no context of how various parts have been interpreted and understood over the last two hundred years, and so-on.

      The average American really is functionally illiterate on constitutional matters.

      And that’s okay. The entire point of a jury is to be judged by your “peers”, not experts in constitutional law. And if at the end of the trial the prosecutor (who is the expert) hasn’t convinced the jury that a conviction would be a just outcome, then they aren’t obligated to give them one, even if the judges worksheet would lead them to that decision.

  6. I would give up the idea of jury nullification if the police and prosecutors would give up qualified and absolute immunity.

    1. That’s a good point, but it’s worth a whole thread of its own.

  7. The jury box is the only place where your vote actually matters.

    1. winner!

  8. “not because the jurors believe there is insufficient evidence of a defendant’s guilt, but because they believe the underlying law is unconstitutional”

    If the jurors aren’t persuaded that there was a constitutionally-valid law against the defendant’s behavior, then I’d say there’s insufficient evidence of guilt.

    It’s not “evidence of guilt” to prove something which isn’t even a crime.

  9. Is there a place in our system for a jury to acquit because the jurors believe the underlying law is unconstitutional?

    Of course. But I don’t suppose that juries are instructed that they have this power.

  10. “…the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.””

    Bullshit. We need no other example of why this is wrong than our current marijuana situation. Petitioning the legislature has done absolutely nothing. A vast majority feel this law is wrong, or at the very least, that the Fed’s have no authority to legislate (state rights issue). The only recourse we citizens have against the government is through tools such as jury nullification.

    1. Sometimes I wonder if there is a professional courtesy going on in legislatures. It is as if no one will even consider repealing someone else’s legislation, because then someone might repeal theirs.
      They call themselves “lawmakers,” not “reformers” or “repealers.”

      1. It’s scratched backs all the way down.

        1. You misspelled “sucking balls” all the way down.

  11. The professors and “experts” referenced in this article omit any mention of the types of court to which they refer. Are they even cognizant of the differences?
    The only situation where jury nullification is valid is in a court of record. A trial in a court of record operates in common law and, when there is a jury, is a trial by jury. In this case, the jury is the “judge” and the magistrate, commonly referred to as a judge, is truly a magistrate and simply oversees the proper procedures of court. The findings of a court of record are not appealable.
    In a court other than a court of record, when there is a jury, it is a jury trial and not a trial by jury. In a jury trial, the magistrate is the judge and the jury has to obey the directions given by the magistrate, and the Constitution is not in play. Your submission to the court acknowledges your acceptance of the court’s determination and the determination is appealable but only for errors in procedure. Other than gross violations of human rights, the Constitution is not applicable.
    A court of record is for man/woman and courts other than a court of record deal with other entities (citizens, defendants, drivers, persons, etc.).
    BTW, if a court is not a court of record, it is an “inferior court.”

    1. If the jury is to obey, then why have a it at all? Just let authority decide. Submit. Obey. Comply. Kneel.

      1. That was supposed to be links to Wikipedia and legal-dictionary.thefreedictionary.com.

        The definitions there are not in accord with JayMan’s comment.

  12. Law and legislation are not the same thing. Law is the rules that society accepts and follows, and legislation is just when it codifies the laws of society.

    Legislation becomes unjust when it contradicts the laws of society, or tries to shape them through force.

    As an extreme example, take murder. If legislation against murder were to be repealed, it would still be against the laws of society. That is why people feel that it is wrong when the cops get away with murder. The cops are breaking the law, though legislation may say otherwise.

    I think most people intuitively understand this, though not many will say it. Because to say it is to blaspheme against god government. And you can easily spot an authoritarian, when they say “the law is the law.”

    1. I think your point is correct and important about societal rules (murder as an example) mainly because people understand what the rules are before hand.

      There are so many laws on the books that most people cannot hope to know beforehand what is illegal and why.

      On that note Rule of Law as applied by a small limited government allow the few laws on the books to be applied equally and to all persons.

      Authoritarians who makes up laws based on whims and then use said laws indiscriminately or because of agendas are not even close to the same thing.

  13. Jury nullification worked fine in many charges brought against those violating the Fugitive Slave Act.

    Don’t try to get out of jury duty. Maybe you’ll catch a drug case, or a youthful sexting case, or a case where a cop acted totally out of bounds.

  14. […] the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

    Infiltrate the jury? Gee, way to spin being ordered to waste hours, days or even weeks settling other people’s problems so maliciously. Other then legal dramas, no one “infiltrates” a jury. It’s just not feasible.

  15. Four boxes in defense of freedom:

    Soap box, ballot box, jury box, ammo box. Use in that order.

    1. Best post today!

  16. Does jury nullification undermine the rule of law?

    Thankfully, yes.

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