Governments at all levels are raging out of control, trampling the rights of the people, escalating the attack on the Bill of Rights seemingly without any recourse available to the people. Until recently, it has not been widely appreciated that for the last hundred years, we have been missing a crucial check and balance which would allow individual citizens to just say no to oppression.
America’s Founders were worried that the central government they created might someday grow too powerful and begin to pass laws which would violate the rights of the sovereign people. But they had an “ace in the hole” — a magic bullet — that they believed would suffice to hold this new, experimental government in check. That was the right to a trial by a jury of one’s peers.
You might wonder how a jury can restrain a government. The key is the fact that juries can protect people from arbitrary and unjust prosecutions — and from bad laws. But since the legislature creates laws, aren’t we supposed to obey them, and then ask our legislatures for any changes that need to be made?
Realistically, more substantial and direct means are needed to protect us from overly ambitious governments and oppressive laws than to simply ask lawmakers for reforms. Ordinary citizens have been — and still are — outgunned by wealthy, powerful, special interests whose fortunes too often depend upon forcing people to observe laws that are not in the public interest.
From the outset, America’s Founders realized that the temptations of power and corruption would someday be too much for any of the three branches of government to resist, let alone check and balance the other branches. They foresaw the folly of trusting the government to protect individual rights and realized that, ultimately, citizens at the local level, acting according to dictates of their individual consciences, would need to have the final authority — the final check and balance — expressed as veto power over bad laws.
Fortunately, the institution of trial by jury had already firmly established the principle: a centuries-old legal doctrine carried over from England to the colonies, via the common law, which holds that jurors may judge whether a law is a good law — that is, a law that does not violate the rights of free men and women. By this doctrine, if according to the dictates of their consciences, jurors do not think a law is just, or if they think the law has been misapplied, they may decide not to convict an otherwise “guilty” defendant. Even a single juror can thus prevent a conviction, by voting not guilty. This is known as jury nullification or jury veto power.
English common law and American tradition also provide that if the jury as a whole decides to acquit a given defendant, that decision is final. A verdict of “not guilty” cannot be overturned, nor can the judge harass the jurors for voting for acquittal. Jurors can never be punished for voting their consciences, even if they have taken an oath to follow the law as stated by the judge!
These principles probably date back to the time of the Magna Carta. In England in the mid-1600s, the Levellers, led by Lt. Col. John Lilburne (“Free-born John”) explicitly advanced the notion that the jury is the judge of the law. The Quakers then joined the Levellers in advancing the idea.
In 1670, William Penn was arrested for preaching a Quaker sermon, thereby breaking the law of England, which made the Church of England the only legal church. The jurors in his trial, led by Edward Bushell, refused to convict him, despite being detained for days and held without food, water, tobacco, or toilet facilities. The most adamant four of them were then put in prison for nine weeks.
When it eventually released the four by court order, the highest court of England both acknowledged and established that trial jurors could not be punished for their verdicts. Our freedoms of religion, peaceable assembly, and speech thus all trace to our right to a trial by a jury of peers, a jury not intimidated by the government.
The sedition trial of John Peter Zenger, in the American colonies, was another landmark case. Zenger was arrested for publishing materials that accused the royal governor of New York colony and his cronies of corruption. While the charges were true, the jury was told that under the law, truth was no defense.
Zenger’s attorney, Andrew Hamilton, argued to the jury that they were judges of the merits of the law and should not go against good conscience by convicting Zenger of violating such a bad law. The jurors agreed. Zenger was acquitted in about fifteen minutes, and his case helped establish the right to freedom of the press.
The Founding Fathers were clear about where they stood on the issue of the rights of jurors. The rights of juries to judge the law was widely recognized in the colonies. John Adams, in 1771, stated: “It is not only. . . [the trial juror’s] right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
In a letter to Thomas Paine in 1789, Thomas Jefferson said: “I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” In 1804, Alexander Hamilton said that jurors should acquit even against the judge’s instruction “if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.” John Jay, the first chief justice of the U.S. Supreme Court, wrote in Georgia v. Brailsford (1794): “The jury has a right to judge both the law as well as the fact in controversy.”
During the nineteenth century, judges began chipping away at this vital and fundamental right of free citizens, transferring more and more power to themselves, often contending that jury review of law was “no longer necessary” — now that free, democratic elections had replaced monarchy.
Then, in 1895, the Supreme Court, in Sparf and Hansen v. U.S. , said it should be up to the judge to decide whether the jury would be told of its right to judge law as well as the facts, unless a state’s constitution or statutes provide otherwise. The court acknowledged that jurors have the power to judge the law, but, going against long-established constitutional principles, denied that it was a legal right.
Today, jurors are generally told that they must accept the law as the judge explains it and may not decide to acquit a person because their consciences are bothered by what seems to them to be an unjust law.
Judges falsely tell jurors that their only role is to decide if the “facts” are sufficient to convict the defendant, and that if so, they “must” convict. Defense attorneys are not allowed to encourage jurors to vote to acquit because they believe the law is unjust or unconstitutional, and defendants are usually stopped short and rebuked if they so much as mention their motives to the jury.
In plain words, in what comes down to a power struggle between the people and the judicial system in these United States, we, the people, have been losing.
In fact, jurors still, to this day, retain the power to veto or “nullify” bad laws. They are just not told this by the courts. And judges and prosecutors exclude people from serving on juries who admit that they believe they can judge the law or who have doubts about the justice of the law. This destroys the protections jurors were supposed to be able to muster on behalf of fellow citizens against unjust prosecutions. How can our right to a trial by an impartial jury be fulfilled if those who may have qualms about the law are routinely excluded from jury service?
Judges and others within the courts have for too long been waging a war — a campaign of disinformation — so that jurors will have no idea what their rights are. Trial by jury is reduced to mere formalities, mere window dressing for what are really trials by government.
It is past time that the people themselves begin to demand that their rights as jurors be respected. These are rights that accrue when people accept their civic responsibility to judge another human being. They derive directly from the defendant’s right to trial by jury and are therefore “unalienable.”
Thus, it is not just jurors whose rights are being denied. Every time jurors’ rights are ignored or overridden, the defendant gets a less-than-fair trial. This is now a pervasive, constant problem because judges have been so busy systematically misinforming jurors for so long that many attorneys — and judges — are not even aware that these rights exist.
We should fight for what is right, while we still can. You can help defeat the forces of tyranny. As a juror, you cannot be punished for voting your conscience. You can resolve to judge the law in every case on which you serve as a juror. And you can tell other jurors that they have the same power.