Americans are accustomed to think of the courts of law as being a good thing. With our invariably simplistic tendency to summarize any given issue into Good vs. Bad, the courts are held up as the primary counterpoint to the criminal element of society. But just as there can be no Geheimestaatspolizei without a police force, one cannot hold show trials without a judiciary.
So, the courts are neither inherently good nor bad. But our positive view of the courts is relatively new, as a significant portion of the Magna Carta, which is a foundational element of our common law, is devoted to limiting the corrupt power of the king’s courts. Indeed, the very existence of the jury can be traced directly to this need to harness a judiciary run amok.
Contrary to most people’s understanding, and directly contrary to the courtroom instructions of most judges, the jury in any trial, civil or criminal, has the power to judge both the facts and the law in that particular case. This means that if any juror believes that the law is unjust, he has power and the duty to ignore it and make his decision according to his conscience alone.
Now, intellectuals of all stripes, even one of my heroes, Thomas Sowell, have written that this concept of jury nullification is a threat to the rule of law. But this a tragic misunderstanding of wherein the threat to the rule of law lies. The rule of law does not collapse when people do not obey the law; that is an end result, not a causal factor. The rule of law collapses because the law itself is unjust, and when those charged with ensuring its just application refuse to do so.
The proof, as always, can be found in the deceit. In the 1995 Gaudin decision, the Supreme Court wrote: “The question there [Sparf, 1895] was whether the jury could be deprived of the power to determine, not only historical facts, not only mixed questions of fact and law, but pure questions of law in a criminal case. … We decided that it did not. In criminal cases, as in civil, we held, the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions. But our decision in no way undermined the historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts.”
Thus, the official word from on high is that while the judge can tell the jury whatever he wants about the law and can even try to intimidate the jury into following his courtroom instructions, the jury still retains the power to decide whether it wants to apply the law in its particular case or not.
The dishonest historical revisionism of the anti-jury crowd can be seen most clearly in a 2002 article written to oppose the unsuccessful attempt of South Dakotans to join Maryland, Indiana, Georgia and Oregon in enshrining jury rights in their state constitution. “… [U]nelected, unaccountable jurors will decide case-by-case, jury-by-jury, whether to apply our laws at all. Such a system is irreconcilably at odds with our ‘[nation] of laws, and not of men,’ as stated by John Adams.”
This is a particularly shady piece of propaganda, as there can be no question that John Adams, our second president, would have supported the right of the jury to decide matters of law, for in speaking of the juror, he wrote: “It is not only his 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.”
Freedom of the press would not exist without the jury nullification that took place in the celebrated Zenger trial of 1735. Jury nullification was also practiced with great regularity in the trials of abolitionists prosecuted for helping slaves escape and in the trials of Prohibition-era drinkers as well.
Many have asked me what they can do to help stop the devolution of this country into tyranny. Here is one relatively easy action – don’t avoid jury duty the next time you’re summoned, but instead take advantage of the opportunity to exercise your power to rein in the corrupt judiciary and to educate your fellow members of the jury pool about their right to decide the application of the law as well as the facts.
Your future freedom may depend on it.
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