Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
“Jury nullification” is a term used to describe the phenomenon of a seated petit jury deliberately refusing to convict a criminal defendant, following a trial, despite evidence and legal instructions adequate to support a conviction. “Nullification” connotes the jurors’ decision to disregard the factual evidence of guilt, the applicable law, or both, to set an accused criminal free even though the law has technically been broken.
Is jury nullification good or bad? The topic has long provoked controversy, with strong feelings on both sides. Modern-day proponents of nullification have devised a more palatable moniker for the practice, dubbing it “jury veto,” or “jury independence,” or the exercise of a “fully informed jury.” (In fact, a national organization based in Montana, the Fully Informed Jury Association, promotes the cause of nullification.) The terminology used, however, does not resolve the underlying philosophical dispute over the proper role of the jury.
Most courts actively discourage the circulation of pro-nullification pamphlets in front of courthouses by FIJA activists, believing that it encourages jurors to violate their oath—taken at the beginning of the case—to consider only the evidence presented and the instructions of the trial judge. In the courts’ view, jurors play an important but limited function: to sift through the evidence (especially conflicting testimony) and apply their factual findings to the relevant legal rules, which are determined elsewhere. Jurors are not lawmakers.
When juries step out of that limited role—and instead act as the ersatz “conscience of the community”—bad things can happen. In the Jim Crow South, all-white juries frequently acquitted defendants accused of lynching blacks and other heinous crimes—not because the evidence was weak, but out of sympathy for (or in solidarity with) the defendant. Conversely, in the O.J. Simpson case, the predominately African American jury arguably engaged in nullification in 1995 when it acquitted Simpson of murdering his ex-wife, Nicole, and her friend, Ron Goldman, despite what most observers felt was overwhelming evidence of Simpson’s guilt. More recently, many Americans were outraged when a San Francisco jury—possibly motivated by nullification—acquitted Kate Steinle’s killer. There are many other examples.
On the other hand, nullification is celebrated by many libertarians, including Ron Paul, who view it as a laudable “populist” check on the enforcement of unjust or excessive laws (sometimes referred to as “overcriminalization”), prosecutorial overreaching, and even overly-aggressive police officers. Proponents include Radley Balko, the Cato Institute (which has published a pro-nullification book), certain elements of the militia movement, the Tenth Amendment Center, and law professors such as Glenn Reynolds and Ilya Somin.
Proponents argue that the practice dates to the refusal of an English jury to convict William Penn for unlawful assembly, a charge that was a transparent pretext for restricting his freedom of religion. Proponents also cite later examples of Americans refusing to convict defendants charged with violating unjust laws such as the Alien and Sedition Act and the Fugitive Slave Act. In recent times, proponents advocate nullification in cases involving “victimless” crimes, such as possession of medicinal marijuana.
Some proponents assert that the Founding Fathers contemplated a broad role for juries, entitling them to judge both the facts and the law in any particular case. There is an element of truth to this claim. In the early American republic, the legal system—at least in some states—reflected what legal historian John Phillip Reid calls “a laical jurisprudence” controlled by laymen, not lawyers or judges. During the 19th century, however, virtually all jurisdictions abandoned this practice in favor of the current system of judge-led trials. Accordingly, modern trial practice sharply restricts jurors’ discretion, requiring them to swear under oath that they will follow the courts’ instructions. It is difficult, therefore, now to argue that jurors act nobly by violating that oath and defying the law.
Critics of jury nullification include Orin Kerr, who contends that it “is a recipe for arbitrariness instead of informed judgment.” Robert Bork deemed jury nullification a “pernicious practice,” and saw it as a manifestation of a larger trend: “individualism in the law,” or “the substitution of private morality for public law and duty.” I agree with both criticisms. Objections to unjust laws (or overcriminalization) should be taken up with the legislature, to effect change, or raised in legal challenges to the constitutionality of the objectionable laws.
I wrote an essay on jury nullification over 20 years ago, in The Freeman, entitled “Nullifying the Rule of Law,” opposing nullification, and my position hasn’t changed. My primary objection to nullification is that it leads to the disparate application of laws, which is antithetical to the rule of law. As I argued in 1996:
And what is a jury acting outside of the law but a 12-person mob, like modern-day vigilantes? Although the jury-power activists point to historical events where juries refused to enforce the Fugitive Slave Act, there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. . . . Furthermore, nullifying the law strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a jury that has rejected the law.
The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century’s pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek’s words: “[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.” Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek’s view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case “that it can be said that laws and not men rule.”
I am surprised that those who support jury nullification are not more sensitive to the Hayekian principle being compromised, and the potential for abuse. In our system, laws are democratically enacted and apply to everyone. No one is above the law. As I argued in The Freeman, renegade jurors who ignore their instructions are scofflaws, “no more heroic than a rogue policeman violating the law or a politician accepting a bribe. 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.”
The debate over jury nullification highlights the differences between libertarians, some of whom are “minarchists” uneasy with the constraints on individual autonomy inherent in the state, and classical liberals, who view civil society as indispensable to secure their liberty. Fundamentally, laws are necessary to preserve a free society, not—as libertarians suppose—inherently symbols of abject coercion. Freedom is not possible without the rule of law. Conceptually, jury nullification—selectively suspending the law—is “anarchy in a microcosm.” As a classical liberal, I view it as brazen lawlessness and a prescription for arbitrariness.