I would like to talk to you
today about nullification in the law.
Here of late there has been a lot in the news about state nullification
of federal laws. This is the idea that
the states can and must refuse to enforce unconstitutional federal laws. Thomas Jefferson in his draft of the Kentucky Resolutions of
1798 first introduced the word “nullification” into American political life,
and follow-up resolutions in 1799 employed Jefferson’s formulation that
“nullification…is the rightful remedy” when the federal government reaches
beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison
said the states were “duty bound to resist” when the federal government
violated the Constitution.
In our system no government
is sovereign. It is the peoples of the
states are the sovereigns. They are the
ones who apportion powers between themselves, to their state governments, and to
the federal government. This is an exercise
the people’s sovereignty, not an abdication of it. The peoples of the states are the sovereigns, so
when the federal government exercises a power of dubious constitutionality on a
matter they deem of great importance, it is the people themselves who are the
proper disputants, as they review whether their agent was intended to hold such
a power. Thus when a state’s government realize
that the federal government has stepped past that which is allowed by the Constitution
the state not only has a right to nullify but the obligation to protect their
people from unconstitutional laws.
James Madison: States Need
Recourse Against Courts
It’s worth recalling
important passages from James Madison’s famous Report of 1800 in light of the
many uninformed criticisms of nullification (e.g., “Why, the courts are our
infallible judges!”):
“The resolution of the
General Assembly [the Virginia Resolutions of 1798] relates to those great and
extraordinary cases, in which all the forms of the Constitution may prove
ineffectual against infractions dangerous to the essential rights of the
parties to it. The resolution supposes that dangerous powers, not delegated,
may not only be usurped and executed by the other departments, but that the
judicial department also may exercise or sanction dangerous powers beyond the
grant of the Constitution; and, consequently, that the ultimate right of the
parties to the Constitution, to judge whether the compact has been dangerously
violated, must extend to violations by one delegated authority, as well as by
another; by the judiciary, as well as by the executive, or the legislature.”
“However true, therefore, it
may be, that the judicial department, is, in all questions submitted to it by
the forms of the Constitution, to decide in the last resort, this resort must
necessarily be deemed the last in relation to the authorities of the other
departments of the government; not in relation to the rights of the parties to
the constitutional compact, from which the judicial as well as the other
departments hold their delegated trusts. On any other hypothesis, the
delegation of judicial power would annul the authority delegating it; and the
concurrence of this department with the others in usurped powers, might subvert
for ever, and beyond the possible reach of any rightful remedy, the very
Constitution which all were instituted to preserve.”
I suspect that you will be
hearing a lot more about state nullification of federal laws now that Obama is
really pushing his agenda, e.g., guns laws, et al. Now I would like to turn you attention to Jury
Nullification.
Jury Nullification is the
right the people have to refuse to convict people on charges by laws they deem
unjust, unfair, or unconstitutional. It occurs
when a jury returns a verdict of "Not Guilty" in spite their belief
that the defendant is guilty of the violation as charged. An example of this occurred recently in Minnesota
where a man charged with violating the state’s restrictions on raw milk sales
was acquitted even though he was selling raw mill to willing customers which Minnesota
forbade.
The most famous jury nullification
case was the 1735 trial of John Peter
Zenger, who was charged with printing seditious libels of the Governor of the
Colony of New York, William Cosby. Zenger
had clearly printed the alleged libels (the only issue the court said the jury
was free to decide, as the court deemed the truth or falsity of the statements
to be irrelevant), the jury nonetheless returned a verdict of "Not
Guilty."
Jury Nullification has been
with us from then on, in the early 1800s, nullification was practiced in cases
brought under the Alien and Sedition Act.
In the mid-1800s, northern juries practiced nullification in
prosecutions brought against individuals accused of harboring slaves in
violation of the Fugitive Slave Laws.
And in the Prohibition Era of the 1930s, many juries practiced
nullification in prosecutions brought against individuals accused of violating
alcohol control laws. And which of us do
not remember the O.J trial?
Once a jury returns a verdict of "Not
Guilty," that verdict cannot be questioned by any court and the
"double jeopardy" clause of the Constitution prohibits a retrial on
the same charge. So there is no doubt
that juries have the power to nullify any law they deem appropriate. Should they is the question? Many court systems don’t think so for many
reasons. In 1895, in United States v
Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case
in which the trial judge refused the defense attorney's request to let the jury
know of their nullification power. So
any convictions by a jury that has no knowledge of their right to nullify the
law cannot be appealed. However, our
first Chief Justice, John Jay, told jurors: "You have a right to take upon
yourselves to judge [both the facts and law].", and in 1805, one of the
charges against Justice Samuel Chase in his impeachment trial was that he
wrongly prevented an attorney from arguing to a jury that the law should not be
followed.
Today in most court systems jurors
will be told that it is their duty to apply the law as it is given to them,
whether they agree with the law or not, and most judges also will prohibit
attorneys from using their closing arguments to directly appeal to jurors to
nullify the law. Jurors have the power
to nullify, but as it stands now, jurors must learn of their power to nullify from
extra-legal sources such as televised legal dramas, novels, or articles about
juries that they might have come across.
Some juries will understand that they do have the power to nullify,
while other juries may be misled by judges into thinking that they must apply
the law exactly as it is given, but the truth is that once you are to decide,
you can decide on any reason you may decide.
If you think the law is unjust, wrongly applied, or unconditional you can
vote not guilty if you see fit.
There is nothing that can be
done to a jurist after he casts his vote, and not a guilty verdict by the jury
cannot be set aside.
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