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Constitutional Matters - Jury Nullification

A Strategy to Preserve Liberty: Serve on a Jury

I have often heard friends and acquaintances complain when they are called to jury duty. It is easy to understand the common gripes made in response to this mandate. As a result of the obligation, people are often displaced from their jobs and other pursuits, often for long hours and for little compensation.

I find it hard not to empathize with their qualms. After all, it is easy to find disfavor with required government service of any kind. However, serving on a jury remains one of the most effectual ways to preserve someone's liberty.

What if a jury in a case felt that a defendant was being charged under bizarre or unreasonable circumstances? What if that jury understood that the individual charged acted in good faith, and did not violate anyone else's health or well-being? What if the state built a perfect case to convict under current law, but the jury decided the law was just plain outlandish or unnecessary? Based on this reasoning, what if the jury used common sense and decided to acquit?

For decades, juries not only practiced this technique to thwart repulsive government law, but many states required their courts to instruct its juries on this power.

At the time of the founding, jury nullification was a widely recognized principle. Even those who favored a relatively high degree of governmental power affirmed its legitimacy.

In the 1794 case of Georgia vs. Brailsford, Chief Justice of the United States Supreme Court John Jay instructed the jury:

  • "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."[1]

Jay made it clear: juries have the power not only to decide if the state has proven its case to convict a defendant, but also the power to determine the legitimacy of the law in question and whether it should even apply to the case before them.

Jay was not an outlier when it came to this principle. In Thomas Jefferson's Notes on Virginia (1782), the same principle was clarified:

  • "It is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact."[2]

Read more at about this here A Strategy to Preserve Liberty: Serve on a Jury.

Read more articles about Constitution at The Tenth Amendment.com.

The Law You Won't Be Told - Jury Nullification



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Contact: marcus@onfreedomroad.info