I think you nailed two out of three of those. And if you substitute “I’ll do whatever I damn well feel like!” for “non-statist,” I think you’ve done an admirable job of self-analysis.
They may not “rightfully” use jury nullification, since a jury does not have the right to ignore the facts presented to them, nor make independent judgements of the law.
They may have the power to do so, however.
Your assertions on jury nullification, and the phony claims made by the Fully Informed Jury Association, have been debunked already. I am baffled at your insistence on trotting them out again.
- Rick
IOW, only lawyers get to decide what your rights are. Any non lawyers that has an opinion on what their rights are is simply doing “whatever they damn well feel like” rather than being a responsible member of society. And the people that tell us this are all lawyers. What a coincidence.
The courts decide. It’s part of the Separation of Powers. Congress makes the laws, the courts interpret the laws, and the President…well, I’m sure he does something.
How can SCOTUS say something is not enforceable at the state level without declaring the law unconstitutional? How would the state know its law is unconstitutional?
I can’t imagine the Marshall court would ever have trusted the people to make decisions on what is constitutional. That would have been a very un-Marshall like attitude. Marshall did not exactly have a lot of faith in the common man.
Did the Framers (you know, the pre-Marbury guys) ever dream that Congress, for example, would overstep its bounds and pass an unconstitutional law?
Are the only Constitutional remedies for unconstitutional actions found in the Impeachment powers of the House and the Trial powers of the Senate? (Not to mention the “Good Behavior” limitation on the Judiciary.) And, to a lesser extent, elections can be considered a check on unconstitutional excesses. But when has a member of Congress, or a President, ever been tossed out of office for supporting an unconstitutional act? (As determined by whom, I don’t know.)
Wow, Ryan has now come up with competing hypotheses:[ul][]The Ryan decides what is constitutional.[]Lawyers decide what is constitutional.[/ul]Somehow, I’m thinking both theories are silly.
I’m glad to see this thread, because it highlights my personal pet peeve on the Board (and yes, I know this makes me sound like the over-parsing nitpicker I know I can be). My peeve: People declaring something is or is not constitutional, when what they mean is that in their opinion it should or should not be constitutional. “‘In God We Trust’ is unconstitutional!” “Discrimination is [in all cases] unconstitutional!” “Flag burning is unconstitutional!”
Wrong. All three are constitutional. So are prolly a bunch of other stuff various people don’t like. By the same token, somethings are unconstitutional that some people do like – like, say, school prayer.
The U.S. Supreme Court is the arbiter of constitutionality and, since it is made up of fallible human beings, the names and personalities of which change over time, they can and do change their minds and, by so doing, change how the constitution is interpreted. The document isn’t written in stone, and the context and contours of our rights are fluid things, subject to change – some changes we like, some changes . . . not so much. But it is the Supreme Cour that decides what is constitutional. At the end of the day, theirs is the only opinion that counts in any practical sense.
Regarding U.S. District Court decisions: As MINTY said, they are not binding but may be persuasive and I do use them – why not? They’re published, and if they’re good authority then okay. And they may well be more persuasive than circuit court authority from some other jurisdiction, because of geographic proximity and consequent issue and analysis similarity. If I’m citing district court opinions, I try to cite case law from the district court of whatever district I’m in (say, Western District of Washington) (most persuasive to a judge in that district – hey, maybe she wrote it). Barring that, I’ll try to find authority from a close district (say, Eastern District of Washington) where I know the law is very similar. But I use district court cases as a secondary level of citation (which is not to say secondary authority) – sort of shoring up the main cite, which hopefully will be a binding one. E.g.: See [Ninth Circuit case]. See also [district court cases].
legalism is an insufficient argument for me to put aside my reasonable doubt, and place that man in jeopardy.
Now, I realize that there are a lot of folks out there who are not reasonable, and might use that same argument to support their prejudices, and let someone go free on a murder charge for frivolous reasons unrelated to guilt or innocence. I can only pray that twelve of them won’t stand together and condemn another man without reason. But I am still left in the jury room, deciding a man’s fate. I will decide, and I must do so with my entire conscience.
Tris
“As scarce as truth is, the supply has always been in excess of the demand.” ~ Josh Billings ~
Sloppy cut and paste. Put this as a first line.
If I am one of the twelve reasonable men, and I have reasonable doubts that the accused on trial should be punished by society,
TRIS, legalism will rarely if ever ask a person to leave aside their reasonable doubt. But juries decide facts, not law, and reasonable doubt goes to the question of fact at issue (whatever it is). So if a person is charged with possession of illegal narcotics with intent to sell, your reasonable doubt may justly lead you to refuse to convict him or her, if you do not believe he or she is guilty.
But it should not lead you to inquire into the sufficiency of the crime charged – i.e., whether possession with intent to sell really ought to be illegal. That is not your decision as a juror; it is the decision of the legislature that, made up of your representatives, makes the laws. You, as a juror, undermine the judicial system when you take it upon yourself to decide what ought or ought not be the law. That is not the function of the jury.
This is not to say that you as a juror should ever do anything against the dictates of your own conscience. But if you cannot fairly apply the law as it is given to you to apply it, then you should forthrightly say so during voir dire so that you may be excused.
This happens not infrequently, by the way: People who know as a matter of conscience that they cannot impose the death penalty, for example, will be excused from cases where it may be a punishment. There’s nothing wrong with that. But there is something seriously wrong with lying to get on the jury and then refusing to impose the law because you disagree with it.
Oh, and a clarification of something I said a couple of posts back: Discrimination is not in all cases constitutional; it very often is not. But in some cases it is – it is not in all cases unconstitutional.
John Adams eloquently argued the case, chastising Parliament for depriving Americans of their right to trial by jury. Adams later said of the juror, “it is not only his 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.” (Yale Law Journal, 1964:173)
Jurors should acquit, even against the judge’s instruction…
if exercising their judgement with discretion and honesty
they have a clear conviction the charge of the court is wrong.
– Alexander Hamilton, 1804
I consider trial by jury as the only anchor yet imagined by man
by which a government can be held to the principles of its constitution.
– Thomas Jefferson, 1789
And hence, people have to have veto power regarding the Constitutionality of laws, rather than having to decide a case strictly on the (possibly unConstitutional) laws involved.
But then again, you’ve already made it clear that you don’t care about some quotes from a bunch of dead guys.
I say that the suppression of the final test of Constitutionality - the judgement of the jury - is the tool of statists because they understand the only way to pass unpopular, sometimes immoral laws is to convince everyone that they have to check their consciences at the door and judge solely based off immoral laws.
In any case, what’s the deal with us? Are you only ignoring me in gun control threads? I’m trying to figure it out.
For that matter, for all the checks and balances included in the Constitution, they all still rely fundamentally on trust in, and popular control of, the government. In themselves, checks and balances that are only garunteed by promises from those who benefit them are worthless. It’s only the willingness of the people to enforce those checks and balances that makes them meaningful. The people have always been the ultimate check, in our system of government, and the power of the people to refuse to convict in the face of immoral or unConstitutional law is a critical check against the power of the state. Without the fundamental check, with the people as the “final branch” of government, any promises of checks and balance are worthless - reliant on the good will of politicians.
Well, John Jay disagrees with you. He stated that jurors have “a right to determine the law as well as the fact in controversy.”
The idea of people being ultimately able to render a tyranical law useless by voiding it in the jury box is completely in line with the ideas used to write the Constitution.
Are you afraid that people will suddenly decide not to convict anyone of murder and rape if they’re “suddenly allowed” to do whatever they want? That’s terribly unlikely. The only time jury nullification comes into effect is when a law is so unpopular that it’s questionable as to whether or not it will be enforced - and chances are, such a law are immoral, and quite possibly unConstitutional.
John Jay? John Jay? He’s the best you can do? Surely a good jury-nullificationist such as yourself can do better than John Jay as a source. C’mon. The 18th century? Please.
Here in the modern world, the jury does not have the right to decide the law. That is the function of the legislature and, more immediately, the judge. Because he, y’know, knows the law.
I don’t know what this means. The Constitution does not speak to jury nullification. I do know you do not have the constitutional right to be have the jury advised of its ability to nullify.
Nope. Jury nullification doesn’t strike much fear in me. I think it’s a bad idea because it supplants the function of the legislative branch in decide what should or should not be law. Once the law is passed, we all have an equal obligation to follow it.
Popularity is almost never a good harbinger of constitutionality. Prayer in schools is very popular, but it is unconstitutional. Flag burning is very unpopular, but it is constitutional. Morality is decided by society at large through the legislature – that’s what law are, in the end: the codification of the broad morals a society chooses to live under (no stealing, no killing, pay your taxes, one wife at a time, etc.). Proposed laws that are “unpopular” are generally not passed, because the elected representatives are leery of doing unpopular things – because then they become formerly-elected used-to-be representatives. Laws, once past, are not subject to a test of “popularity” before enforcement. They may be challenged for legality (including constitutionality), but “this isn’t a popular law” is no reason to not enforce it equally among everyone.
Let’s say the “immoral, unpopular” law in question is paying taxes. The way to tackle that is to have the tax laws repealed, not by letting some tax evader go after he’s brought up on – and should have been convicted of – a crime.
The jury nullificationist places him- or herself above the legislature, the judiciary, and the rest of society to take upon him- or herself the role of deciding – alone – the legitimacy of the law. This is not the function of the individual in our system. Period. If you want to work within the system to achieve change, then good. If instead you want to attack the system – well, that’s okay too, I suppose, but I’m not required to think it’s a brilliant or honorable idea.
John Jay? John Jay? He’s the best you can do? Surely a good jury-nullificationist such as yourself can do better than John Jay as a source. C’mon. The 18th century? Please.
Here in the modern world, the jury does not have the right to decide the law. That is the function of the legislature and, more immediately, the judge. Because he, y’know, knows the law.
I don’t know what this means. The Constitution does not speak to jury nullification. I do know you do not have the constitutional right to be have the jury advised of its ability to nullify.
Nope. Jury nullification doesn’t strike much fear in me. I think it’s a bad idea because it supplants the function of the legislative branch in decide what should or should not be law. Once the law is passed, we all have an equal obligation to follow it.
Popularity is almost never a good harbinger of constitutionality. Prayer in schools is very popular, but it is unconstitutional. Flag burning is very unpopular, but it is constitutional. Morality is decided by society at large through the legislature – that’s what law are, in the end: the codification of the broad morals a society chooses to live under (no stealing, no killing, pay your taxes, one wife at a time, etc.). Proposed laws that are “unpopular” are generally not passed, because the elected representatives are leery of doing unpopular things – because then they become formerly-elected used-to-be representatives. Laws, once past, are not subject to a test of “popularity” before enforcement. They may be challenged for legality (including constitutionality), but “this isn’t a popular law” is no reason to not enforce it equally among everyone.
Let’s say the “immoral, unpopular” law in question is paying taxes. The way to tackle that is to have the tax laws repealed, not by letting some tax evader go after he’s brought up on – and should have been convicted of – a crime.
The jury nullificationist places him- or herself above the legislature, the judiciary, and the rest of society to take upon him- or herself the role of deciding – alone – the legitimacy of the law. This is not the function of the individual in our system. Period. If you want to work within the system to achieve change, then good. If instead you want to attack the system – well, that’s okay too, I suppose, but I’m not required to think it’s a brilliant or honorable idea.
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I’d have thought the first Chief Justice, someone who was obviously there when the Constitution was being written, and who was the first to be it’s chief judiciary would have some relevance to the Constitutionality of such issues. Silly me.
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Right, because humans have evolved so rapidly that suggesting the ideas of those primates that lived 200 years ago might be valid is patently ridiculous.
[/B}
Aha, because in the modern world, such things as 200 year old political philosophy are invalid by their very nature - for some reason - even if they are the Supreme Law of the Land. Who is it that decides what ideas the modern world officially labels ridiculous, anyway?
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Perhaps it’s because it’d been a part of common law as far back as the Magna Carta, and wasn’t seen as needing specific mention.
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Even if the law is immoral or unConstitutional? Just curious - do you believe we have to follow every law, regardless of it’s morality?
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I agree with you mostly, but one has to look at the reason that the law is unpopular. It may, quite possibly, be morally repugnant, and to follow it strictly because it is law sort of strikes me as saying “I was just following orders”.
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I largely agree, although I’d like to point out how well working within the system has worked so far. If people DID, for some reason, start acquitting tax evaders, the government might get the message, and real change may come from it.
I largely agree with you, but you fail to address the potential abuse such a system brings. If the appropriate appointed officials valued their own gain over their public service, you could have a law that said “Free speech is hereby outlawed”, and it wouldn’t be unConstitutional, if 5 (of 9) specific people did not declare it such. Does it mean, then, that the law truly is not unConstitutional? You can validly argue yes, but I don’t buy that.
I doubt it was the intention of the founders of this country to found a system wherein the good will and dedication to public service of 5 people would be the absolute, end-all, ultimate arbiter of what is Constitutional. The system leaves itself wide open for abuse and tyranny. A system wherein people can ultimately choose not to enforce tyranical laws, rather than a system that trusts a few specific people not to uphold tyranical laws, seems much more in line with the political ideas of the founders.
Look, I’m not going to reinvent the wheel here. Your views on this subject are pretty well known. So, I assume are my own – at least from the above, if not from any other thread. Anyone caring about the subject of jury nullification can bore themselves senseless with earlier threads on the subject, but I see no need to reinvent the wheel yet again. If anyone does care, do a seach on “jury nullification” or, better yet, look at any one of the dozens of threads on how to get out of jury duty.
This is clearly a hijack, but…
While I agree that the practice you describe is constitutional… I don’t agree that “there’s nothing wrong with [it].”
Death-qualified juries are a huge problem, since as a practical effect they tend to be more pro-prosecution and conviction than a jury selected without regard for the jurors’ willingness to impose death. By placing the death penalty on the table, prosecutors can empanel a more favorable jury than otherwise.
I am well aware that the Witherspoon Court disagrees with this proposition. The above is simply my opinion, and not that of the Supreme Court.
Still, I’m right.
Dang it, why doesn’t GW Bush call me with an appointment offer??
- Rick