Indeed, Federalist No. 10 explicitly uses the term “pure democracy” to distinguish it from other kinds of democracies, and what it describes as a republic is a representative democracy.
It is absolutely clear that the framers intended the republic to be structured on democratic values.
And this whole conversation is puzzling in that whether or not you accept the idiotic proposition “republic, not a democracy,” it has absolutely no relevance to the topics that are brought up. It is simply a meaningless slogan.
I love Federalist number 10. It is the one arguing AGAINST a democracy.
It saddens me that you brought it up as I was hoping to be done with this. I will make an exception and post ONE more reply.
I posted this “small number” part in my thesaurus post.
In our country, we do not all meet and administer the government in person.
This is not opinion. It is a fact.
So, we don’t have a democracy.
We have representatives who make our laws.
This is not an opinion. It is a fact.
So, we do have a republic.
Of the two choices, it is clear that we do not have a democracy and we do have a republic. So, what about modifiers for this type of government?
What kind of republic do we have Bob? Well, we citizens all vote for our representatives, so that would make it a democratic republic.
And in the very next sentence, he drops the use of pure.
Does he not mean a PURE democracy anymore? Of course he does. Not really distinguishing a “different” kind of democracy, is he?
first, the delegation of the government, in the latter, to a small number of citizens elected by the rest
We delegate our authority to the government - a trait of republics, not democracies
secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
We have a large number of people over which the republic may be extended
From wikipedia on federalist # 10…Madison argued that a strong, big republic would be a better guard against those dangers than smaller republics—for instance, the individual states
What it describes as a republic is a democratic republic, which I said several pages ago.
Against a “pure democracy.” The document itself implicitly acknowledges that the term “democracy” might have more than one meaning and it specifies which one it is using.
In practice, or in theory? In practice, it’s one of the reasons we have the comparative negligence doctrine; civil juries frequently ignore pure contributory negligence instructions.
In theory, the constitutions of both Arizona and Oklahoma essentially guarantee civil juries the power to nullify the contributory negligence doctrine.
Do you still have a Westlaw account? There’s a very good article about it called (imaginatively) Civil Jury Nullification (86 Iowa L. Rev. 1601 (2001)).
Sure, if you go by what the politically-appointed authoritarians say, then the jury has no rights at all, and almost 800 years of history since the Magna Carta mean nothing. However, intelligent legal theorists ignore the sophistry of politicians, and look to history, law, philosophy, and economics to inform their opinions.
Let’s look at the inane sophistry of the “Supreme Court” on this issue.
Of course, the entire concept of the jury exists because legal authorities cannot be trusted with political power. There is literally no other reason for the existence of juries. The modern jury has existed, since its first recorded use in ancient Greece in 760 A.D., as a means of inserting mirror neurons of random citizens into the punishment process, in order to prevent unjust or undeserving punishment by power-seeking sociopaths and/or authoritarians (the political classes). Since ancient Greece, the jury has existed to decide three things:
Whether the law the defendant is charged with breaking is legitimate.
(whether it derives from a proper theory of law, such as “the law exists to protect people and their justly-acquired property.” All legitimate laws prohibit what is known as “corpus delicti” or “body of the crime.” All such corpora contain two elements: “injury to a specific, named, non-aggressor” and “intent to injure a specific named non-aggressor.” If a person acts in self-defense, or there is no “corpus delicti,” then no crime has occurred, and the law is illegitimate. If there is injury only, then the case is a civil case between two private citizens, and the goal is not to punish, it is to make the injured party whole.)
Whether the law is being fairly applied in the specific case.
(If only blacks are charged with murder, but whites are allowed to murder blacks, then black jurors can refuse to apply the law as a political protest against systemic injustice. The law against murder in this case is legitimate, but its application is not. One example of this type of “jury nullification of law” is the fact that Chinese people were not allowed to testify in court, in California in the early 1900s. This led to their systematic oppression as railroad workers. When Chinese people were accused of murder, white liberals who were called to serve in their cases frequently nullified, as a protest against the system that disallowed legal testimony of witnesses based on their race.)
If the law is legitimate, and being fairly applied, whether the defendant actually broke the law.
(This is currently the only portion of the historical role of the jury that the official status quo government …judges, politicians, prosecutors, police… claims is legitimate. However, the status quo has given us drug prohibition, gun prohibition, the income tax, several illegal wars, prostitution prohibition, gambling prohibitions, and over 4 Trillion dollars in fiat-currency debt that has totally enslaved our children, so you might want to get your head out of your ass and question what this false authority says. Moreover, this is the only portion of the process that is fairly obvious, based on the evidence. Is an entire branch of government necessary to agree with the obvious, or is every branch of sociopath-populated, power-seeking government lying to you?)
If the law was all that was necessary to prevent unjust punishment, then the prosecution would only have to present clear evidence of law-breaking, in order to obtain a conviction. But that’s still not the case, for very good reason. The jury still has the power to judge the law, and it is that power that preserves the last tiny bit of freedom in the USA.
Historically, the prosecution, government (whether monarchy, republic, or democracy), and the “judge” (himself typically an ex-prosecutor) cannot be trusted to protect the property or individual rights of the citizenry. Repeatedly throughout history, all forms of government pass illegitimate laws that exist in conflict with basic human morality.
Yes, that’s precisely the form of government set up by the Founding Fathers. We know this because Thomas Jefferson wrote:
“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.”
—Thomas Jefferson, letter to Thomas Paine
“The juries are our judges of all fact, and of law when they choose it.”
—Thomas Jefferson to Samuel Kercheval, 1816.
and Alexander Hamilton, the biggest-government Founding Father who existed, argued directly to the jury in favor of jury nullification of law, over threats from the judge, in the 1804 case of “People Against Croswell.” In that case, Harry Croswell was accused of seditious libel (Under the Alien and Sedition Laws) against then-president Thomas Jefferson. Founding Father Hamilton used the exact same arguments to successfully convince the jury to nullify the law that Philadelphia lawyer Andrew Hamilton had used to obtain an acquittal for newspaper publisher John Peter Zenger, in New York, in 1735 (this was “Rex v. Zenger,” the case that established the expectation of the freedom of the press in North America, before the USA even existed).
Yeah, we must mindlessly throw out the entire core principle of a free country based on the judgment of non-politicians (“consent of the governed”). Whatever. This is why most rational people hate the power-seeking sociopaths in government, and regularly vote to throw out, veto, or “nullify” the laws they make.
Why wouldn’t the defendant be able to use all arguments that indicate he’s innocent? The argument that the law he’s being charged with breaking lacks a corpus delicti is the most-valid argument a licensed lawyer could make! Are only stupid, narrow, unphilosophical defenses allowed? To argue this indicates a complete lack of education or total corruption. Three guesses as to which most Supreme Court nominees are. They are all corrupt, all voting to expand the power of government over the non-political masses.
BTW: Because you can defend yourself pro se, you obviously have the right to make every argument that a lawyer has the right to make in your defense. Further, the licensing of lawyers has destroyed the practice of law in the USA. Neither Lysander Spooner nor Abraham Lincoln was licensed to practice law. Spooner actually forced the legislature to overturn the licensing requirements in Ohio in 1836, rather than lose his appeal to the Supreme Court for practicing law without a license. Spooner’s popular arguments on the unconstitutionality and unlawfulness of slavery were adopted by Frederick Douglass, leading to the end of slavery in the North.
I’m very glad that both Spooner, Lincoln, and thousands of other unlicensed lawyers were in practice during the 1800s. The licensing of lawyers has destroyed the profession of “defense attorney,” resulting in defense attorneys who meekly shut up at the first hint of being threatened with disbarment. This is why no defendant can hope to be properly-defended, and why the USA currently leads the world in per-capita incarceration of its own citizens.
Cecil Adams may be a smart guy, but in blindly regurgitating low-hierarchical-level status quo opinions of the power-mad Supreme Court, he does a disservice to his readers, and gives them a small part of the overall truth.
Incorrect. Even at the time of the Founders, judges tried to silence defense attorneys, they were just less successful at doing so.
By far, your best chance at freedom is to hire a defense attorney who doesn’t mind being threatened with disbarment, or actually disbarred. Good luck affording that level of expertise on a poor man’s budget!
So, basically, the licensing of lawyers has placed adequate legal defense outside the budgets of the people who need it most: the poor. The very people who are most oppressed by an increasingly militarized police force (which the Founders called “a standing army”), are the same people for whom the licensing of lawyers has gutted all proper legal defense.
Ironically, the standard “status quo” political claim for why the licensing of lawyers is “necessary” is “to make sure poor people don’t get inadequate defenses due to hiring cheap, inexpensive lawyers.” The very opposite is true, in practice. The instant that bar-licensed attorneys pursue arguments that “the law their client is charged with breaking is illegitimate,” they are threatened by the judge with “disbarment” (the loss of their licenses). This threat means they would not be able to feed their families, so it instantly brings them under complete control of the judge, who is typically an ex-prosecutor. So, most of the bar-licensed attorneys surrender before even being offered the chance to do battle, cowardly suggesting that their innocent clients admit unearned guilt by caving in to a “plea bargain.” The prosecutor and judge work together to threaten the defendant with the total destruction of his life, hanging “cruel and unusual” punishment over his neck like a “sword of Damocles.”
How else could the once-free USA become the nation with the highest per-capita prison population? The only explanation is the thorough destruction of the jury. Here is how the jury has been destroyed, in great detail:
Voir dire - the judicial stacking of the jury “before the trial” --adopted in 1851
The licensing of lawyers -adopted gradually across the USA, state by state, in the 1800s
Improper jury instruction -the result of “Sparf and Hansen v. USA” (1895) -prior to this case, jurors were instructed as such “You, the citizens of the state of ___, have a right to vote your consciences, even if your conscience be in direct disagreement with the law. Do you understand?” Now, the judge asks them to do the equivalent of kneeling and kissing the royal seal, thus expressing not their All-American individuality, but their servile and cowardly willingness to ignore their own consciences! The new language, after the terrible precedent of “Sparf and Hansen” is this: “Can you, the citizens of the state of ____, agree to apply the law as I give it to you?” Any juror who says “No,” is then kicked off the jury and replaced with an “alternate juror.” This defeats the entire system of checks and balances that once made the USA free.
Increasing use of “contempt of court” citations, used to silence philosophical and constitutional defense arguments. If you even mention the Constitution, you’ll be threatened with “contempt of court.” …But doing so, and then appealing your contempt of court citations is still your best way to avoid 14 years in prison.
So, the USA is a grotesque caricature of the free nation it was intended to be.
This change happened gradually, as the result of generations of power-seeking politicians successfully achieving government power, and then using “wartime” as an excuse to eliminate proper courtroom procedure.
So what can be done about this?
IF YOU’RE CALLED FOR JURY DUTY, AND YOU’RE NOT A CONFORMIST PIECE OF HUMAN WASTE, ANSWER THE JUDGE’S JURY-STACKING QUESTIONS AS IF YOU ARE A CONFORMIST PIECE OF HUMAN WASTE, ANYWAY.
MAKE SURE YOU GET SEATED ON THE JURY.
THEN, IF IT’S A VICTIMLESS CRIME CASE (IF THE DEFENDANT BROKE THE LAW BUT CLEARLY THE LAW HAS NO RIGHT TO EXIST), VOTE “NOT GUILTY” REGARDLESS OF THE OBJECTIONS FROM THE JUDGE, PROSECUTOR, AND YOUR FELLOW JURORS. IF ASKED TO EXPLAIN YOURSELF, THEY ARE TRYING TO GET YOU TO CONTRADICT YOUR PRIOR STATEMENTS MADE DURING “VOIR DIRE,” SO JUST SAY SOMETHING VAGUE LIKE “THE PROSECUTION DIDN’T CONVINCE ME” or “I THINK THE PROSECUTION IS LYING.”
This is the pathway to restoring a society of individual freedom. If even 5% of the public took the above steps seriously, that would make every unjust law unenforceable. (Since the jury has to be unanimous, that would leave the prosecutor with a 54% chance of obtaining a conviction --not enough to take to trial. This recently happened in Colorado in 2011, and the result was that prosecutors in CO stopped bringing marijuana cases to trial, and marijuana was legalized by the ballot, one year later.)
Jury-based systems only succeed when citizens are educated. Unfortunately, the government schools don’t want educated jurors capable of resisting property taxes (and thus failing to pay government-employed schoolteachers’ salaries).
And Cecil: Stop taking the word of power-seeking politicians as “the final word of authority.”
How could the once-free USA become the nation with the highest per-capita prison population? The only explanation is the thorough destruction of the jury. Here is how the jury has been destroyed, in great detail:
Voir dire - the judicial stacking of the jury “before the trial” --adopted in 1851
The licensing of lawyers -adopted gradually across the USA, state by state, in the 1800s
Improper jury instruction -the result of “Sparf and Hansen v. USA” (1895) -prior to this case, jurors were instructed as such “You, the citizens of the state of ___, have a right to vote your consciences, even if your conscience be in direct disagreement with the law. Do you understand?” Now, the judge asks them to do the equivalent of kneeling and kissing the royal seal, thus expressing not their All-American individuality, but their servile and cowardly willingness to ignore their own consciences! The new language, after the terrible precedent of “Sparf and Hansen” is this: “Can you, the citizens of the state of ____, agree to apply the law as I give it to you?” Any juror who says “No,” is then kicked off the jury and replaced with an “alternate juror.” This defeats the entire system of checks and balances that once made the USA free.
Increasing use of “contempt of court” citations, used to silence philosophical and constitutional defense arguments. If you even mention the Constitution, you’ll be threatened with “contempt of court.” …But doing so, and then appealing your contempt of court citations is still your best way to avoid 14 years in prison.
So, the USA is a grotesque caricature of the free nation it was intended to be.
This change happened gradually, as the result of generations of power-seeking politicians successfully achieving government power, and then using “wartime” as an excuse to eliminate proper courtroom procedure.
This is commonly called “sua sponte” (“of the court”) nullification. The more legalese the general public knows, the less respect they will have for the charlatans and power-trippers who have destroyed American freedom.
The language of the law is a language designed by those who hold power, to mask their intention to do harm to innocent people.
No, it is formally called a “judgment non obstante veredicto” – it is a type of judgment as a matter of law – and it cannot be used to overturn a jury’s verdict of “not guilty” in a criminal proceeding.
As for your prior post, if you believe in a democratic system, then a jury must apply the law that arises from that system. Jury nullification is a type of anti-democratic lawlessness.
Jury nullification means the jury ignores the law and substitutes their own judgement.
That might mean they ignore bad laws and acquit people who might otherwise be convicted of minor offenses that shouldn’t really be offenses.
HOWEVER, it might also mean that they ignore good laws and acquit people who really did do heinous offenses. It might also mean the jury ignores good laws and convicts people who didn’t do so bad, just because the jury doesn’t like them.
Are proponents of jury nullification really comfortable with the latter two cases?
For example, consider a murder case with a victim from a “good” background and a defendant from an outsider group (a racial or religious minority, for example, or someone with out-of-the-mainstream political views). By strict application of the law as written, the evidence shows self defense, but the jury doesn’t like the defendant and decides to punish the “uppity” individual by convicting them of first-degree murder. In my state, as in many others, juries now decide whether to apply the death penalty; a case of self-defense just turned into a capital case.
Is that an appropriate application of jury nullification? If not, why not? If a jury can decide to apply what they think the law should be, why not allow a jury to decide that a Muslim killing a Christian, e.g., automatically deserves the death penalty regardless of the circumstances?
Proponents of jury nullification automatically assume that all nullifying jurors are free of prejudices; I don’t believe that to be true. Throughout our nation’s history, we’ve seen examples of outsiders being persecuted: blacks in the south until fairly recently (and perhaps continuing today), leftists and communists during the McCarthy era, Irish in the 1840s and 50s, etc. What makes anybody believe that suddenly all disappeared?
I tend to see the whole jury system as a check on the power of the legal profession. The legal profession, not surprisingly, generally resents it, they would prefer to do away with juries altogether. I don’t recall ever hearing the phrase “jury nullification” until 10-15 years ago, prior to that a juror taking such action was referred to as “voting his conscience”. The very phrase “jury nullification” seems to have been deliberately coined to suggest a negative connotation.
Lawyers don’t hate juries. Indeed, lawyers frequently advise their clients to demand a trial by jury and frequently fight quite hard to secure such if the state wants to deny it.
I think the best comment was several pages ago - one random individual with an outlier point of view is not going to create a jury nullification - at most a mistrial.
If 12 random people agree the person should not be convicted, then that says something about either the defendant’s actions or the law. The jury exists because even 900 years ago the rest of the country (England) did not trust the people in charge to make the “right” choice.
If someone gets off because the defendant or victim have the “incorrect” minority status, then that says something about society in general - if the jurors cannot be selected to include the whole community then the problem is not the law, it’s society. (Nowadays, IIRC, you CANNOT select jurors to exclude a group. A DA that lets a defendant do that is derelict in his duty, as is the judge.)
You can in the US. You just have to be able to put forward a plausible race-neutral explanation.
Yes, but it’s not as much of a problem because (1) the rules of evidence mostly prohibit testimony or documents that have no relevance except making the defendant sound like a bad guy; and (2) the judge can overturn a guilty verdict is the evidence is insufficient to support a conviction (unlike the opposite case.)
And a defense attorney that lets a prosecutor do it is equally culpable. Either side can advance these types of challenges, called Batson challenges after the Supreme Court case that established the rule.
Well… yes. With a step before and after.
Batson lays out the following steps:
[ul]
[li]First, the challenging party has to advance a prima facie showing that the peremptory challenge was exercised in a discriminatory manner against a Batson-progeny protected class[/li][li]If that prima facie case is made, THEN the proponent of the peremptory strike must offer a race-neutral explanation for the strike that rebuts the prima facie showing [/li][li]THEN the trial court makes a factual finding as to whether the peremptory strike was motivated by Batson-progeny protected class discrimination[/li][/ul]
I didn’t want to get too technical. I don’t think he’s planning to raise a Batson challenge or anything. As a side question, how frequently are they actually made?
A jury isn’t random, though–it’s twelve citizens of the community. Depending on the community, that can be quite homogenous. The reason a white jury would not convict a white defendant who killed a black in the bad old days was because of very uniform opinions in the white community.
Even today, if you get into a county where the population is 99% of one race, it’s not very difficult to show how the jury ended up all white (or all black, in other places), even without any conscious effort to discriminate. Similarly, in a rural county in the Bible Belt a jury pool may well be so overwhelmingly conservative evangelical Christian that any attempt to get a ‘diverse’ jury is doomed to failure. The defendant in such cases may well seek a change of venue on such grounds, but I don’t think there’s necessarily anything automatic about getting one.
Sure, that’s a problem with society, not the law. How does giving society more power at the expense of the law help anybody?
I believe so, yes. Jury nullification is allowing the jury to judge the defendant without regard to what the law says. If the jury can ignore laws they don’t like to acquit somebody, they can just as surely ignore laws they don’t like to convict somebody.
The jury doesn’t need testimony or documents to figure out the defendant’s race, and minority religion (Muslim, Sikh, Hindu, etc.) is often pretty obvious too. Even politics may end up being mentioned as an aside in relevant testimony (e.g., the argument that precipitated the fatal brawl was about the defendant’s membership in the Democratic Socialists–a defense lawyer would have to work pretty hard to keep any witness from mentioning that).
Furthermore, if you are relying on the judge to overturn bad verdicts, isn’t that pretty much the opposite of the main argument for jury nullification (“justice residing with the jury”)?