A few months ago I was called for jury duty. Yeah, I know, “Bummer!” most people say. I don’t actually mind jury duty because I believe in our system (at least a little bit still) and I don’t think it will continue to work if fewer and fewer of us are willing to serve it. When the jury pool is down to 2,000 people or fewer in your local community you’ll have the same people serving on juries over and over and over again. This will not only wear down the jury pool even more, but it will also mean that it will be those people who will decide the result of every prosecution and the outcome of every trial. That would give them a tyranny over the area that would be unprecedented.
Our Founding Fathers believed in the jury system of justice. Some of their quotes:
“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
“The jury has the right to judge both the law as well as the fact in controversy.” — John Jay
to secure the liberty of the people as any one of the pre-existent rights of nature.” — James Madison
So our Founding Fathers thought of the jury as an essential safeguard to freedom, as well as a check and balance on the government. When the government writes laws or regulations to which we are held accountable, the jury is the last arbiter of that law/regulation in each individual case.
For instance, say that with the incandescent light bulb regulations what if someone was arrested because they were still selling the light bulbs even though they were supposed to be off the shelves? What if they chose to fight the charges and wanted a jury trial? What if their defense was a defense of freedom versus tyranny; of limited government versus government overreach; of U.S. Constitution versus government thug? If you were on the jury would you choose to vote “Guilty” no matter what because the law was clearly written? Or would you choose to vote “Not Guilty” because there is a line of freedom the government cannot cross?
You see, in a jury room you have the right to choose which is “Guilty” and which is “Not Guilty”: the person accused or the law under which the accused stands:
“The power of the jury to judge the justice of the law and to hold laws invalid by a finding of ‘not guilty’ for any law a juror felt was unjust or oppressive dates back to the Magna Carta, in 1215.”
It was in this way that the Founding Fathers held the government accountable to the people, all the way down to individual cases and in each and every case. It is up to you, as a juror, to decide whether the law was just, not simply whether a person was guilty of breaking that law. In each and every case the Founding Fathers set it up to make our system accountable to “We, the People”.
I think we can all count on people having at least some common sense when it comes to certain crimes: murder, rape, etc. It’s not those kinds of laws that I am talking about. There are others, though, like the toilet flush law and the washing machine water use law that should be closely looked at in a jury room. Those are the kinds of laws that a jury should look at and see if they are just laws. To find that out, a jury would have to decide if that law was Constitutional and just — was it “fair, impartial, evenhanded, candid, or reasonable.”
I was reminded of this by the judge who instructed the jury pool before the choices of possible jurors was announced. I almost asked him for his autograph on my little burgundy book that has in it the Declaration of Independence and the U.S. Constitution that I carry with me all the time (and the court house guards didn’t like to touch as they searched my purse upon entering the court house). Judging the law as well as the person is called “jury nullification“.
The idea of jury nullification is gaining a foothold in America, thanks in part to the president’s Executive Order mania and to the truckloads of new regulations (as enforceable as laws) under this administration. Yes, they are laws and some would argue against the “correctness” of a jury going against the law and deciding it was the LAW that was wrong, and not the accused. But when you think of it, when is it going to be more effective to stand up and say “No! The U.S. Constitution does not give anyone the power to make that law much less enforce it so the law — and the powers that be who wrote the law — is in the wrong!”? It is not just the law a jury would be nullifying, it would also be the assumed power of the regulating/legislative body who wrote that particular law to have done so. In voting “Not Guilty” and acquitting someone accused of having the wrong toilet (for instance), a jury — or even an individual juror — is saying that the people have the right to have the kind of toilet they wish, or the kind of washing machine, or they have the right to do with their property as they wish.
Am I advocating lawlessness? Of course not. Am I advocating absolutely ignoring the law as a juror? Not in the least. I am saying that the law under which the accused is being charged has got to be examined as well as the evidence of the accused breaking said law. If justice is going to be done then the laws must also be just; else the conviction of anyone under that law is, in and of itself, an INjustice!
Let’s examine a “What if” scenario. What if this administration chose to make a law that said that (to be clearly absurd) no one could wear the color red on Monday. Anyone caught wearing red on Monday faced a year in prison, a $10,000 fine and a year on probation. Would that be a just law? Would that be something that, by definition, was “fair, impartial, evenhanded, candid, or reasonable”? If not, then the jury for the first person prosecuted under that frivolous, unreasonable law should definitely rule against the law.
If the law does not follow the U.S. Constitution (which does not mention clothing), or if it is not reasonable (like regulating what kind of light bulbs we should use: as long as we’re willing to pay the cost of our electric bill, we should be able to use whatever light bulbs we choose), then we have the right, the duty even, to nullify that law in a court of law as a jury, or to follow our Founding Fathers’ example and to defy outright the unreasonable laws imposed upon us.
I would rather twenty unjust, unreasonable laws daily be nullified, revoked, repealed, overruled, than one new just law be written and our lives be forced to abide by that new just law. The best way to start is via judging the law and only allowing only the just laws to stand. I implore you to serve and to do so.