The question is not about consensus or disagreement but about the nature of law and the moral premises undergirding a regime marked by the rule of law.
It is argued by Mark Pulliam that juries should just follow the law and convict those that violate the law. But there is a deeper question here: What is the law that the juries should be following?
Is the law whatever the statute says? We know this cannot be true or there would never be unconstitutional statutes. Some countries do operate this way (especially civil law countries), but this has never been the understanding in the United States.
Is the law whatever the judges say it is? Where in the Constitution does it say that? No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones who do so. Thomas Jefferson wrote that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” The so-called “power” of a judge to “strike down” a statute, is nothing more than the recognition by the judge that any statute passed contrary to the Constitution is not the law and should not be respected as law by the judge. Judge’s oath of office that requires this, but there is no special power that judges have here.
Respect should be shown to the determination by the judge that the statute is constitutional, but that is merely a presumption in favor of respect for reasoned judgment of an independent person who has examined the statute as applied to the facts in this case. For instance, in 1794, in the case of Georgia v. Brailsford in which the facts were not in dispute and the Supreme Court unanimously held that one party should win on the law, the case was still sent to a jury. Chief Justice John Jay—the first Chief Justice of the United States—instructed the jury as such:
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.
Pulliam says that this traditional understanding has changed, but I ask what has changed? Have we adopted a new constitution? No. Is there a constitutional amendment that changed this? No. The power of judges and juries is as it was at the founding of this country, and courts across this country have recognized the power of jury to decide the law as well as the facts of the case. Some judges do not like the diminution of their own power and try to hide this fact, refusing to inform juries of their power in this area even as they recognize it, but they are wrong to do so.
As the jury has the right to determine the law, that includes the determination that a given statute violates the Constitution and to refuse to consider that statute the law. There is also a question of if the Constitution itself is the highest law. No doubt that it is the highest law of the American government, but is it truly the highest law there is? Our Declaration of Independence says otherwise. It spoke of the “Laws of Nature” that even have the power to dissolve the obligation to follow any statutes. The rights to Life, Liberty and the pursuit of Happiness are rights derived from natural law—higher than the law of any nation on earth. Any nation violating these rights is committing a wrong against their own people.
What if the Constitution allowed punishment for freedom of speech or practicing religion? There was no First Amendment protecting our Founders under English law. Nor did the First Amendment exist under our current Constitution from 1788 to 1791. Can a person truly be said to have violated the law by violating a statute which itself violates these natural rights? That was the question presented to our Founders.
One founding era example of jury nullification was the trial of William Penn, who founded Pennsylvania and it was named after him. The statute at the time prohibited religious assemblies of more than five people, other than the Church of England, and in 1670 Penn was charged with violating this statute. The jury found that he had done exactly what the statute prescribed but refused to recognize such an assembly as unlawful. The judge then held that the jury “shall not be dismissed until we have a verdict that the court will accept” and locked the jury up without food, water, or heat. But the jury still refused to find him guilty. Penn said to the jury, “You are Englishmen, mind your Privilege, give not away your Right,” to which juror Edward Bushel replied, “Nor shall we ever do.” The judge tried to fine the jury for their verdict, but the Court of Common Pleas upheld the right of the jury and dismissed the fine.
A second example was John Peter Zenger who in 1735 was charged with libel for insulting the colonial governor William Cosby. His lawyers basically admitted he had published the work that had insulted the colonial governor, but argued that truth was an absolute defense to liable. This wasn’t the commonly understood law of the time, but it so moved the American people that it is now incorporated into what we consider to be a core requirement of the freedom of speech in the First Amendment. It took the jury ten minutes to find him not guilty. The jury saw applying libel in this case as violating the natural rights of Zenger to freedom of speech.
For similar reasons, under the new American government, various juries also refused to find people guilty of violating the Alien and Sedition Acts which prohibited criticism of the government—acts that are broadly recognized today as violating the natural right of freedom of speech. Is it wrong for those juries to have done so even when instructed by the judge that the Alien and Sedition statutes were constitutional?
Now let’s talk about jury nullification as applied to African-Americans. It was quite common for juries in the north to refuse to convict people of violating the Fugitive Slave Act, despite overwhelming evidence that is exactly what they did. But it is also true that sometimes all-white juries let white defendants accused of murdering an African-American (and other heinous crimes) go free and it is said this was jury nullification. But in these cases, there is no notion of the jury finding the statute unjust, it is an accusation of pure animus against the victim based on his race. This is clearly despicable behavior that should not be lauded. The purpose behind these actions is not the same as real jury nullification like had happened before and after. I ask, though, why were these juries all white? If there had been African-Americans allowed on those juries, the results would have been different.
No doubt that the power of juries to acquit people who have violated the statute can be abused to let those that have committed wrongful acts go free. We, sadly, must allow such things to occur in which we as a society value that “It is better that ten guilty persons escape than that one innocent suffer.” You may point to ten people who have been released by juries who should not have been, but I look to the one person the jury has set free from an unjust statute who should have been set free.
There may be only few statutes that a jury would find that grossly unjust today, but the jury acts as a safety valve preventing tyrannical government. I trust, as the Founders did, in the American people serving on the jury to find true justice.