In a democratic system, laws are created by the people as a means of maintaining order. Unlike in a police state, where compliance to laws is arrived at by using the force of the state security apparatus, democratic societies can only maintain their open nature because of voluntary compliance based on the belief that the laws are just and should be followed. This voluntary compliance is obtained because we believe that we ourselves are the architects of the laws that govern us.

But how do these laws come about?

We are all familiar with how the process works, at least on the Schoolhouse Rock level. We, the citizens, vote legislators into office. These legislators propose bills. Once passed by the legislature and signed by the elected executive, these bills become laws. So we tend to think that we, the people, have created the laws that govern us through the medium of representatives elected to act on our behalf.

But as has become increasingly clear, there is no guarantee that the elected representatives are, in fact, acting in our best interests. The influence of money and lobbyists has resulted in a system where the elected officials are far more likely to be swayed by those interests than they are by the wishes of their constituents. It should not be news to anyone that much of the language of current laws and, even more importantly, the regulations that spell out the implementation details of the laws, are being written by lobbyists who are not accountable to the voters but instead take their instructions from pressure groups.

So what can we do to regain our prerogatives as the people who ultimately get to decide on laws? We tend to think that the only option is to vote the miscreants out of office and vote in new people who are more in tune with voters. But this is not easy to do.

It turns out that there is one feature of the whole process by which laws are validated that has been carefully hidden from all of us and which we can invoke in some limited situations. The fact is that the signing of a passed bill by the chief executive is not the last step that determines the validity of a law. The last step is determined by juries who get to decide on whether or not to convict someone based on the law. In other words, juries, representing the common people, have the final say in determining if a law is just or not and whether it should be used to convict people or not.

This will come as a surprise to many. We have become accustomed to television and film courtroom dramas (and even experienced it ourselves if we have been members of juries) where juries are instructed by the judge on how the relevant law is to be interpreted and are told to judge the case only on the facts of the case. The validity of the law is not to be part of the discussion.

But it turns out that the right of juries to judge both the facts and the law is one of the oldest rights we have, and has been upheld time and time again. In fact, many of the fundamental rights that are cherished in the Bill of Rights came about because juries consistently refused to convict people under laws that they felt were unjust, ultimately forcing governments to repeal those laws. This phenomenon is called jury nullification a groups such as the Fully Informed Jury Association (FIJA) and the Constitutional Rights Foundation Chicago are trying to inform people, and especially juries, of this aspect of their rights in the face of this official silence.

In the US, the earliest example of a jury exercising its right to nullify a law was in the case of John Peter Zenger in pre-revolutionary times.

[T]he power of jury nullification predates our Constitution. In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his Majesty’s government. At that time, a law of the Colony of New York forbid any publication without prior government approval. Freedom of the press was not enjoyed by the early colonialists! Zenger, however, defied this censorship and published articles strongly critical of New York colonial rule.

When brought to trial in August of 1735, Zenger admitted publishing the offending articles, but argued that the truth of the facts stated justified their publication. The judge instructed the jury that truth is not justification for libel. Rather, truth makes the libel more vicious, for public unrest is more likely to follow true, rather than false claims of bad governance. And since the defendant had admitted to the “fact” of publication, only a question of “law” remained.

Then, as now, the judge said the “issue of law” was for the court to determine, and he instructed the jury to find the defendant guilty. It took only ten minutes for the jury to disregard the judge’s instructions on the law and find Zenger NOT GUILTY. (emphasis in original)

Note that there was no doubt that Zenger had violated a duly enacted law because he admitted as much. But the jury still acquitted him, in direct defiance of the facts of the case. This right of juries to nullify an unjust law by refusing to convict people under it has continued to be upheld in the US even after independence under the constitution that was later adopted. The above article continues:

At the time the Constitution was written, the definition of the term “jury” referred to a group of citizens empowered to judge both the law and the evidence in the case before it. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.” (emphasis added) “…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.

So you see, in an American courtroom there are in a sense twelve judges in attendance, not just one. And they are there with the power to review the “law” as well as the “facts”! Actually, the “judge” is there to conduct the proceedings in an orderly fashion and maintain the safety of all parties involved.

As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an “unreviewable and irreversible power… to acquit in disregard of the instructions on the law given by the trial judge…. (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Sam Smith writes in the Progressive Review that while the right of juries to nullify a law they perceived as unjust has been upheld when challenged, courts have been increasingly reluctant to let juries know of this right and some have even struck jurors from the panel who asserted this right or even said they knew about it.

Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue “the law — its interpretation and validity — to the jury.” By the latter part of the century, however, judges and state law were increasingly moving against nullification. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on nullification stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had “developed agrarian tendencies of an alarming character.”

In other words, since juries tend to consist of ‘ordinary’ people, they are more likely to view as unjust laws that have been passed by the money-dominated legislatures to expand the privileges of the powerful at the expense of the powerless. Hence the need by the powerful in society to suppress knowledge of this right of juries. But as Sam Smith says: “The nullification principle involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny.”

It should be understood that this right of juries does not mean that they can do anything they like. This right is a limited one, to save individuals from being deprived of life or liberty because of unjust laws. It cannot be used to arbitrarily convict someone or to declare a law unconstitutional.

This matter shows how important juries are to the very fabric of society. We should resist all attempts to reduce its influence or to abridge its rights. When we serve on a jury, we are engaging in the ultimate democratic act, sitting in judgment on the very laws that we are called upon to execute.

As Thomas Jefferson said in a 1789 letter to Tom Paine, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

POST SCRIPT: Feingold again

At the risk of making this blog look like a Russ Feingold fan site, here is another clip of him speaking very clearly about what should be done in Iraq, and why even the Democratically-controlled Congress is so timid.