An important avenue in which we can, and must, currently work to restore the principles of liberty is through jury nullification. This practice, once widely accepted among Christian and early American jurists and lawyers, has been largely forgotten—until very recently. Thanks to the increasing interest in liberty, civic involvement, and the advance of individual rights, we are seeing a resurgence of this principle. An interest in the principles of God’s law will take the Christian even further.
The principle itself is quite simple: juries have the perfectly legal right to determine both the facts and the law in cases over which they sit in judgment. This concept sounds radical to most modern ears, but it’s absolutely true. In cases where the application of a current law would actually cause an unjust outcome, or where the applicable law itself is unpopular or simply a bad law, the jury has the full power to remedy the situation—even if the defendant is technically guilty of breaking that law—by refusing to find that defendant guilty, by declaring the person innocent. Juries have this right even if the judge instructs them otherwise in any way.
Several of the founding fathers understood the fundamental importance of jury nullification. John Adams said, “It is not only [the juror’s] 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.” Likewise, the first Chief Justice of the U. S. Supreme Court, John Jay, stated that “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. . . . [B]oth objects are lawfully, within your power of decision.” Unsurprisingly, Jefferson joined these federalists in this view. He explained why we should support jury nullification: “To consider 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.” ((Jefferson to William Charles Jarvis, The Works of Thomas Jefferson, 12 vol., ed. Paul Leicester Ford (New York and London: G. P. Putnam’s Sons and The Kinckerbocker Press, 1905), 12:162.))
This power was preserved as basic to preventing government abuse of power. During the ratification debates over our Constitution, jury nullification was upheld as a fundamental check against potential abuse under the proposed Constitution. During the debates in Massachusetts, Theophilus Parsons—a supporter of the Constitution and later State Supreme Court Chief Justice—proclaimed that
the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation. ((In Jonathan Elliot, ed., The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, 4 vols. (Washington, 1836), 2:94. Partially quoted also in Thomas Woods, Jr., Rollback: Repealing Big Government Before the Coming Fiscal Collapse(Washington, D.C.: Regnery, 2011), 179.))
The framers recognized the importance of this issue from the hard lessons of previous generations. William Penn, founder of Pennsylvania, was a defendant in a 1670 case in England in which he was tried for unlawful assembly. He had violated the so-called “Conventicle Act” of 1664 which forbade religious assemblies of more than five persons for Christians who were not members of a government-registered church. This act was part of the Elizabethan acts of Unity which aimed to centralize the English Church and suppress all puritans and other Protestants. Penn was one of these. When drawn into court, he pleaded not guilty. The jury upheld his innocence—not because he had not broken the law, but because they esteemed the particular law unjust. The bench was furious, and threatened the jurors with imprisonment and deprivation. It finally settled upon fining each member and imprisoning them until it was paid. A higher court, however, later released them. The episode was very famous; it was fundamental to our framer’s understanding of how courts would become tyrannical and uncontrollable unless we preserve the right of jury nullification.
Unfortunately, today it is a practice of most judges to remain silent about this aspect of the law and instead specifically lies to juries, instructing them that they may only consider the facts in the case and not the law in question itself. While this is false, an 1895 Supreme Court decision nevertheless ruled that this practice is constitutional—judges are not required to explain to juries their right of jury nullification. But this by no means makes the right itself any less important. (It just means that judges are elitist, not wanting average people to have a say in the righteousness of any given law, pressured by large beneficiaries, or that they for some other reason lean toward the side of the prosecution in all cases. Whatever the cause, it’s unethical and counterproductive to liberty in most cases.) Despite the judges’ shifty silence, the Supreme Court itself has upheld the right more than once in American history:
In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”
This all means, of course, that the Supreme Court is forced by our Constitution to acknowledge the right of jury nullification, yet since judges don’t like to admit it, the Supremes have also given a pass to the “right” of judges to deceive and intimidate juries against it. “Home of the brave. . . .”
The application of the right has a deep and meaningful American heritage among the truly brave, however. Juries exercised it against the Alien and Sedition Acts of Adams and against the Fugitive Slave laws in the 1850s. It was used against growing corporate power during the height of the progressive era, used frequently against alcohol control laws during Prohibition, and even in a few cases for Vietnam War protestors.
There is good biblical precedent for jury nullification as well. Not only is the right itself derived from the nature and structure of God’s law, but episodes such as the deliverance of Jonathan from unjust punishment in 1 Samuel 14 illustrate the right and duty in action.
A Fox News report on the subject relates,
A common question I get from people disturbed by these kinds of cases is, “What can we do?” Well, here’s one thing the average citizen can do: Serve when you’re called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he’s guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with “not guilty,” no matter what the judge, the prosecutor, or the evidence says.
For those wishing to have as immediate an impact as possible in this regard, they should not only embrace jury duty when called, they should learn as much as possible about it and actively work to spread knowledge of the right and duty among their families, communities, churches, and in public wherever possible. Likewise, interested parties should read and learn as much as possible about the subject. Here are some resources that can help:
First, I would highly recommend the compact Juror Handbook by Brent Allan Winters, which we carry. Brent says, “Without the Jury, protection of our fundamental rights by our Constitution becomes nothing more than ink on paper. In order for freedom to flourish, each American must become aware of the juror’s rights of responsibility.”
Secondly, there is the Duty of the Jury lecture course provided by the Institute on the Constitution. It can be a bit pricey, but it is built upon a biblical worldview. There is a fuller teaching kit available as well.
Finally, there is at least one secular organization devoted to this issue—the Fully Informed Jury Association. They provide resources for education, including a DVD lecture series for Churches. Although the biblical content is not nearly as strong as with the other resources, their material is still robust and very helpful.
Want to be a true social justice warrior? Start with learning the right and duty of jury nullification. Then spread the word.