Borderline lifeboat situations

[Paul's Here 0]

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The above is my sketch of what little I "know." I offer it as a target for correction, especially by an expert in this particular field of law. Of course, only a detailed study, going to the priimary sources for the problem, will resolve the questions involved.

I would ask about this in the expert forum, but I am still waiting for a response to my question about the meaning of "reasonable man."

In all of the above examples, as far as I understand it (not being a legal expert), you only have the right to sue to the extent that previous laws have been enacted allowing you to sue. In some cases, the suit may not be one for monetary damages, but a suit to force an agency to actually do what it is supposed to do according to the law. And in order to win a suit, you'd have to demonstrate that the action of the governmental agency violated a rule or law.

Here is an example I found about Section 508 of the Rehabilitation Act. The law that was written contains conditions under which a law suit may be filed. If that section of the law were not included, you would not be able to sue if you felt that the governmental agency were violating its own law.

Section 508 of the Rehabilitation Act requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that this technology allows:

Federal employees with disabilities to have access to and use of information and data that is comparable to that by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency, and

Individuals with disabilities, who are members of the public seeking information or services from a Federal agency, to have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities.

The law establishes a complaint procedure and reporting requirements that further promote compliance. Section 508 provides that any individual with a disability may file a complaint alleging that a Federal agency fails to comply with Section 508 when procuring EIT. Complaints shall be filed with the Federal agency alleged to be in noncompliance. Under Section 508, individuals may also sue an agency in Federal court to correct an alleged violation.

[Paul's Here 0]

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With regard to a proposed jury nullification function, there would be an unfortunate crucial connection. Namely, it would be that two entities at opposite levels of the judicial hierarchy, which exist for very different purposes at far-removed levels of abstraction, would each be claiming the same final authority: nullification of a law. This would be a contradiction. Contradiction in the realm of final authority is a hallmark of anarchism. Non-contradiction in this realm is a hallmark of proper government.

Following Stephen Speicher, I was addressing the subject in general. Any and all specific issues in regard to the scope and powers of juries are ultimately evaluated according to the fundamental principle of objectivity in the law. Stephen and I were addressing things at that level.

Jury nullification is not nulllification of law. Just because a jury decides that a law does not apply in a particluar case (either because the law is immoral or the prosecutor is pursing a case for political reasons), the law is still in effect for everyone else (including the person being tried). Only the legislature can repeal the law or the courts can declare it unconstitutional.

[Stephen Speicher 0]

Jury nullification is not nulllification of law.

Yes it is.

Just because a jury decides that a law does not apply in a particluar case ...

That is not jury nullification.

[Paul's Here 0]

Yes it is.

That is not jury nullification.

So when the OJ jury found him innocent because they thought the police framed OJ, it was now legal to commit murder?

[Paul's Here 0]

Yes it is.

That is not jury nullification.

Far be it from me to question Thomas Jefferson:

On the other hand, does a jury have the power and the right to nullify the law? Would nullification be a violation of the principle of the rule of law? Yes, and no, respectively. It is common today for judges to tell prospective jurors that they must apply the law as he gives it to them and that their business is simply to determine whether the defendant has broken the law or not. But that is not what was intended by the right to trial by jury in the Bill or Rights. Thomas Jefferson said in 1782 (Notes on Virginia):

...it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.

Then, recommending trial by jury to the French in 1789, Jefferson wrote to Tom Paine, "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...."

[Paul's Here 0]

Yes it is.

That is not jury nullification.

And from the same link as above:

Indeed, if juries do not have the right and power to nullify the law, we must face the fact that Harriet Tubman, one of the great heroines of American history, would and should have been guilty of multiple federal crimes by violating the fugitive slave laws. That is a morally revolting prospect, but judges today who reject nullification must confess that they would enforce the fugitive slave laws and convict Harriet Tubman. If they were to honestly admit as much, and hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg.

[Dean M. Sandin 0]

The authority to decide the constitutionality of a law enacted by the legislative branch (or of a procedure or act of the executive branch) is a judicial function required for objectivity in the law. There's no resemblance between this function of a Supreme Court and the function of a jury to ascertain the relation of the facts to the law in a given case -- other than that the jury function too provides for objectivity in the law.

There is nothing in the Constitution that grants the courts the authority to to declare laws unconstitutional. That is an authority the courts assumed after the Constitution was written.

Not relevant here. There must be a single recognized authority in this matter -- a corollary of the monopoly control of force. That this authority rests in the courts is not controversial.

The function of the jury is not to provide for objectivity of the law. The jury function is to act as a check on the authority of the governement to pass immoral laws.

I did not say that the function of the jury is to provide for objectivity of the law. I said the function of the jury is "to ascertain the relation of the facts to the law in a given case", and that in doing so it provides for objectivity in applying the law. I said this as part of indicating that it is only this most abstract of judicial purposes (establishing and furthering objective law) that forms the common denominator between the broadest, supreme locus of judicial authority and the narrowest, most concrete locus of it (trial juries).

Moving on to the important point: in no way, shape, or form do juries exist for the purpose of "checking the authority of the government to pass immoral laws". Apart from the ultimate power of the states to ratify constitutional amendments, such checking lies in the hands of the judiciary (and it does not check for morality, it checks for constitutionality), with the final authority being at its supreme level. Your claim is another instance of fallaciously mingling the broadest and narrowest levels. A jury exists to objectively determine guilt or non-guilt (or degree of liability) in a specific case. Opposition to laws we believe are immoral is a matter of persuading the legislature to repeal or fix them; and in some cases also persuading the judiciary that they are unconstitutional. One thing that is perfectly clear in our system is that it is the jury's responsibility to apply the relevant law to the case at hand, not to invent or overturn it.

A last thought. It comes to mind that surely the most prevalent and egregious instances of "jury nullification" in U.S. history were those cases where racist juries would refuse to convict obvious thugs and murderers in the post-war American South. Indeed a fine instance of "checking the authority of the government to pass immoral laws" .

[Paul's Here 0]

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Not relevant here. There must be a single recognized authority in this matter -- a corollary of the monopoly control of force. That this authority rests in the courts is not controversial.

Whether it’s controversial or not is not relevant here. What is relevant is the truth. Why need there be a single authority? Can’t a President veto a law because he thinks it unconstitutional? Can’t Congress repeal a law if a member argues that it is unconstitutional? One of the problems with relying on one “authority” is that Congress and the President feel they can get away with anything: after all, they say, if it’s unconstitutional, the Supreme Court will say so. Hence, we have Campaign Finance “reform.”

I did not say that the function of the jury is to provide for objectivity of the law. I said the function of the jury is "to ascertain the relation of the facts to the law in a given case", and that in doing so it provides for objectivity in applying the law. I said this as part of indicating that it is only this most abstract of judicial purposes (establishing and furthering objective law) that forms the common denominator between the broadest, supreme locus of judicial authority and the narrowest, most concrete locus of it (trial juries).

And how do juries do that? Suppose I am charged with a crime. Trial by jury is optional. Suppose I select not to have a jury trial. I want to be tried by a judge. Is the judge not capable of ascertaining “the relationship of the facts to the law in a given case”? Has the law been applied non-objectively by the judge?

There is one essential question that no one who disagrees with jury nullification has answered, yet.

WHY DO YOU NEED A JURY "TO ASCERTAIN THE RELATION OF THE FACTS TO THE LAW IN A GIVEN CASE"?

If you can address this one question, perhaps you could change my mind.

Moving on to the important point: in no way, shape, or form do juries exist for the purpose of "checking the authority of the government to pass immoral laws".

Your statement conflicts with the historical basis for juries, as you can see in my past posts above.

Apart from the ultimate power of the states to ratify constitutional amendments, such checking lies in the hands of the judiciary (and it does not check for morality, it checks for constitutionality), with the final authority being at its supreme level. Your claim is another instance of fallaciously mingling the broadest and narrowest levels.

Your claim is another instance of not referring to the data I’ve supplied that conflicts with your statements. The courts check for constitutionality, yes. The function of a jury is what Thomas Jefferson stated above in Post 105.

A jury exists to objectively determine guilt or non-guilt (or degree of liability) in a specific case.

So you say, but where’s the historical evidence that that is their only role? I’ve cited many cases where the jury has interpreted whether the law should be applied. The fact that juries have both roles has never been refuted by any legal authority.

Opposition to laws we believe are immoral is a matter of persuading the legislature to repeal or fix them; and in some cases also persuading the judiciary that they are unconstitutional. One thing that is perfectly clear in our system is that it is the jury's responsibility to apply the relevant law to the case at hand, not to invent or overturn it.

I’m sure you’d appreciate that if you were arrested and convicted for violating some law and had to wait in jail for 10 years until the legislature got around to repealing the law. Or better yet, suppose your were sentenced to 20 years for stealing bread. Would you prefer a jury to let you go because the sentence is unjust, or would you wait for someone to petition the legislature? I never said that a jury invents or overturns laws. If you cannot cite where I said that, please stop making those charges.

A last thought. It comes to mind that surely the most prevalent and egregious instances of "jury nullification" in U.S. history were those cases where racist juries would refuse to convict obvious thugs and murderers in the post-war American South. Indeed a fine instance of "checking the authority of the government to pass immoral laws" .

I believe that this argument should be referred to as the “straw man.” I suppose we should do away with the Constitution since it contains amendments legalizing theft (Amendment 16). What about the cases where the jury found people who were helping slaves escape innocent even though laws were written to prevent it. In an argument, citing an example that is a wrong application of a specific power does not demonstrate that the entire issue is wrong. Just because a jury can make mistakes and convict innocent men doesn’t make the jury system invalid. And, as I’ve shown in both historical context and basic principle, the jury is the one who decides what it decides. Hopefully, it does so with Jefferson’s dictum in mind, (“if the question relate to any point of public liberty … the jury undertake to decide both law and fact”). But when the jury acts irrationally, one does not throw out the entire system.

[Stephen Speicher 0]

Far be it from me to question Thomas Jefferson:

And from the same link as above:

Moving on to the important point: in no way, shape, or form do juries exist for the purpose of "checking the authority of the government to pass immoral laws".

Your statement conflicts with the historical basis for juries, as you can see in my past posts above.

Exactly! Which is why I said to you in this post: "I am not arguing history. I am presenting what is right." To which you responded: "Neither was I. I was providing context and information."

But, as you acknowledge more than once in this post to which I am now responding, and as is evidenced by the voluminous amount of historical material gleaned from computer searches that you keep presenting in post after post, "historical basis" was and is the cornerstone for your argument.

Tha anarchical nature of jury nullification is, in my estimate, a straightforward conclusion once one accepts the proper function of a jury (or, at least, what Dean, I and others think of as its proper function). As much as I otherwise revere some of the historical figures whom you quote, and as interesting as is some of the historical events, when it comes to what is right, history be damned.

[Paul's Here 0]

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But, as you acknowledge more than once in this post to which I am now responding, and as is evidenced by the voluminous amount of historical material gleaned from computer searches that you keep presenting in post after post, "historical basis" was and is the cornerstone for your argument.

Tha anarchical nature of jury nullification is, in my estimate, a straightforward conclusion once one accepts the proper function of a jury (or, at least, what Dean, I and others think of as its proper function). As much as I otherwise revere some of the historical figures whom you quote, and as interesting as is some of the historical events, when it comes to what is right, history be damned.

I'm still confused about what you are talking about. Where does your concept of jury come from? How can you talk about the proper functions of a jury without the historical context? What is the jury system an alternative to? What problems was it designed to solve? What is your context for forming the concept? Why would one need a jury in society where the law is completely and totally objectively defined and objective laws laid out, with clearly defined procedures of evidence admissibility? Why would anyone need a jury to identify the facts and judge guilt or lack of guilt? Why would I put my hands in the fate of 12 strangers who are totally ignorant of the law and who are supposed to just accept whatever the judge tells them how to interpret what they've heard? Why 12 people? Why not 3, or 24? If my sister and wife swear to be objective, why can't I rely on them when judging my case? Why can't I have 12 judges from several courts decide my case. Why not 12 lawyers or 12 physicists? How can something be "an act of anarchism" when it is done withing the context of the legal system? How are you going to do away with the power of a jury (that has been around since the jury system was instituted in England) to decide a case on something other than "just the facts"? The "anarchical nature of jury nullification" seems inherent in a system in which people are given the power to judge guilt or not. None of this is discussed the "the opponents of jury nullification." I hope I've been succinct this time.

[Paul's Here 0]

I just had a brain storm.

If you really want to do away with jury nullification, and since most cases involving it end up as hung juries, just make the conviction verdict require a 75% yes for guilty vote. Put maybe 16 people on the jury so that you'd still get the needed 12 votes for conviction. I'm sure it would be impossible to ever get a hung jury again!! Problem solved!!!

[Dean M. Sandin 0]

Not relevant here. There must be a single recognized authority in this matter -- a corollary of the monopoly control of force. That this authority rests in the courts is not controversial.

Whether it’s controversial or not is not relevant here. What is relevant is the truth. Why need there be a single authority? Can’t a President veto a law because he thinks it unconstitutional? Can’t Congress repeal a law if a member argues that it is unconstitutional?

In each case there is provision for an authoritative decision that is final. The system defines when a decision is final, so that there is a single final authority in any matter. Whereas a jury that says in effect, "Yes, the defendant is objectively guilty, the law really does rationally apply, but he's on our side of a social or political or emotion-laden disagreement and we'll turn blue in the face before we uphold the law" steps outside the properly conceived justice system of a free society.

Disagreements over how force shall be applied in a case are precisely for the courts to resolve. Just as "guns are left at the door" in civilized society, so is disagreement with the law left at the courtroom door (or openly professed so that the court take it into account). The purpose is the same: objectivity, not whim, in the resort to force.

The point of objective law isn't to always get an intrinsically proper outcome (that would correspond to omniscience in epistemology). The point of objectivity in any area -- epistemology, science, law, whatever -- is that it's the necessary and proper approach to arriving at rational conclusions, not that it cannot yield an error. Abandoning objectivity in order to arrive at desired conclusions is the very definition of whim.

I did not say that the function of the jury is to provide for objectivity of the law. I said the function of the jury is "to ascertain the relation of the facts to the law in a given case", and that in doing so it provides for objectivity in applying the law. I said this as part of indicating that it is only this most abstract of judicial purposes (establishing and furthering objective law) that forms the common denominator between the broadest, supreme locus of judicial authority and the narrowest, most concrete locus of it (trial juries).

And how do juries do that? Suppose I am charged with a crime. Trial by jury is optional. Suppose I select not to have a jury trial. I want to be tried by a judge. Is the judge not capable of ascertaining “the relationship of the facts to the law in a given case”? Has the law been applied non-objectively by the judge?

There is one essential question that no one who disagrees with jury nullification has answered, yet.

WHY DO YOU NEED A JURY "TO ASCERTAIN THE RELATION OF THE FACTS TO THE LAW IN A GIVEN CASE"?

If you can address this one question, perhaps you could change my mind.

Certainly no one has said recourse to a jury is the only way. The context of discussion is juries, so we're focused on them in particular, but without excluding the obvious alternative. Once again: what is fundamentally needed is an objective process of objective law.

I never said that a jury invents or overturns laws. If you cannot cite where I said that, please stop making those charges.

The decision to evade a law in disregard of its rational application is precisely to overturn a law and, as a corollary, to substitute an invented law in its place. What else could overturning or inventing mean in the context of the jury process?

A more abstract identification would be: destruction of the law in the form of abandoning fundamental principle for short-term apparent gain. I first made this identification in http://forums.4aynrandfans.com/index.php?s...indpost&p=38881, although you did not respond to it at the time.

[....]What about the cases where the jury found people who were helping slaves escape innocent even though laws were written to prevent it.

We aren't discussing the context of a political order with irreconcilable divisions, one side of which is deeply evil, that are leading it into civil war.

[Burgess Laughlin 0]

We aren't discussing the context of a political order with irreconcilable divisions, one side of which is deeply evil, that are leading it into civil war.

I am not sure who "we" refers to, but would you describe the "context of a political order" that you are assuming for your comments?

Reading this discussion and debate has been fascinating and informative. I hope spelling out the context will make it even more rewarding.

[Dean M. Sandin 0]

We aren't discussing the context of a political order with irreconcilable divisions, one side of which is deeply evil, that are leading it into civil war.

I am not sure who "we" refers to, but would you describe the "context of a political order" that you are assuming for your comments?

Sure.

First, I meant the "we" as basically myself, Stephen Speicher, and Paul's Here. I mean no disregard for others who have been contributing to the jury thread too, but Stephen and Paul are the two whom I have addressed or referred to.

I'd say that, by the particular "context of a political order" I regard the discussion as assuming, I mean a "reasonably" free society, expressly including our own. "Reasonably" includes a generally prevailing rule of objective law and a founding constitution that allows for finality in the locus of the supreme authoriity over any given power of government.

Since it's usually wrong to reject the "reasonably" good in favor of waiting for the near-perfect, the discussion can withstand the existence of a certain range of bad laws, bad understandings of the Constitution, etc. that we all on this Forum would deplore in themselves. It is wiithn that range that I regard the dicsussion as remaining valid.

Reading this discussion and debate has been fascinating and informative. I hope spelling out the context will make it even more rewarding.

I hope so too!

[RationalBiker 0]

Whereas a jury that says in effect, "Yes, the defendant is objectively guilty, the law really does rationally apply, but he's on our side of a social or political or emotion-laden disagreement and we'll turn blue in the face before we uphold the law" steps outside the properly conceived justice system of a free society.

My main issue with this statement is that it suggest that whim is the only possible basis for all counts of jury nullification. The statement could just as easily be factually accurate (case dependent) if it read;

"Yes, the defendant is objectively guilty, but the law does not rationally apply because we have objectively evaluated the morality of this law (independent of any social, political or emotion-laden agenda), and the injustice which would be served by enforcing. We will therefore refuse to enforce immoral law."

In my opinion, justice should not be systematically abandoned in favor of order. It is also my opinion that once we legislate and enforce enough injustice, we will end up with disorder anyway.

[Paul's Here 0]

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In each case there is provision for an authoritative decision that is final. The system defines when a decision is final, so that there is a single final authority in any matter. Whereas a jury that says in effect, "Yes, the defendant is objectively guilty, the law really does rationally apply, but he's on our side of a social or political or emotion-laden disagreement and we'll turn blue in the face before we uphold the law" steps outside the properly conceived justice system of a free society.

This brings up the exact issue that I wanted to get to next, and I think Burgess hit the nail on the head: CONTEXT.

I think the discussion has been on parallel planes. I’ve tried to address this with some of my comments in response to Stephen, but maybe I haven’t been clear. If, both you and Stephen, have been arguing against jury nullification within a “properly conceived justice system of a free society,” (I believe Stephen stated his argument was about “what’s right” or to that effect) then I’ll have to admit I would disagree with jury nullification. Within the context of complete and total objective law, there would be no objective reason to claim that it is immoral to apply a law to the defendant.

I thought it would have been clear that I was not arguing from the context of objective law, but from the context of the historical development of the jury system and the context of current society. I haven’t done a statistical survey and I don’t know anyone who has, but I’d bet my house that at least 75% of all laws today are non-objective. In that context your statement (“the defendant is objectively guilty, the law really does rationally apply, but he's on our side of a social or political or emotion-laden disagreement and we'll turn blue in the face before we uphold the law”) is a false alternative. Which law are you talking about? Today's laws, or one's that have yet to be objectively written? The defendant could be objectively guilty, but the jury can decide not to apply the law because the law is either non-objective or immoral. It is not whim on the part of the jury but an objective assessment of the law. Do you consider it objective to put a man in jail for 20 years for stealing a loaf of bread if he is starving or his daughter is starving? The context of jury nullification in today’s society is valid because some final method needs to be in place to protect us from arbitrary power of the government. One cannot expect a government that created non-objective law to repeal the law while the defendant sits in jail. I think I’ve given enough examples of juries nullifying non-objective laws. None of my examples or arguments apply to objective laws.

Disagreements over how force shall be applied in a case are precisely for the courts to resolve. Just as "guns are left at the door" in civilized society, so is disagreement with the law left at the courtroom door (or openly professed so that the court take it into account). The purpose is the same: objectivity, not whim, in the resort to force.

The point of objective law isn't to always get an intrinsically proper outcome (that would correspond to omniscience in epistemology). The point of objectivity in any area -- epistemology, science, law, whatever -- is that it's the necessary and proper approach to arriving at rational conclusions, not that it cannot yield an error. Abandoning objectivity in order to arrive at desired conclusions is the very definition of whim.

“A ‘whim’ is a desire experienced by a person who does not know and does not care to discover its cause.” (AR Lexicon) That is the definition I use, and nullification, per se, is not an example of it. As I said previously, I don't know what jury whim you're referring to.

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Certainly no one has said recourse to a jury is the only way. The context of discussion is juries, so we're focused on them in particular, but without excluding the obvious alternative. Once again: what is fundamentally needed is an objective process of objective law.

I don’t want to repeat my question that you didn’t answer, so I’ll rephrase it. How is a trial by jury an objective process of objective law? Especially since you have not presented any theory as to how you'd do away with the power of jury nullification.

The decision to evade a law in disregard of its rational application is precisely to overturn a law and, as a corollary, to substitute an invented law in its place. What else could overturning or inventing mean in the context of the jury process?

Overturning a law would mean that the legislature passed a new law repealing the old law, as was done by Amendment 21. The fact that Al Capone and his gang got away with breaking the law or buying off juries so as not to convict them did not overturn the non-objective Amendment 18 law. I have no idea how to interpret your assertion of “inventing” law.

A more abstract identification would be: destruction of the law in the form of abandoning fundamental principle for short-term apparent gain. I first made this identification in http://forums.4aynrandfans.com/index.php?s...indpost&p=38881, although you did not respond to it at the time.

I’m not sure what you’re interpreting as a short term gain. The jury gets to go home after the verdict? I challenge you to find any significant number of jurors who do not take their obligations seriously (at least within the context of their knowledge).

We aren't discussing the context of a political order with irreconcilable divisions, one side of which is deeply evil, that are leading it into civil war.

No we’re not. We’re talking about a jury trial based on a law passed by the legislature of a free state in a nation with a Constitution as its founding document.

[PS. Since this post is getting quite long, if your respond, can you please break it up into several posts? Thanks.]

[Stephen Speicher 0]

If, both you and Stephen, have been arguing against jury nullification within a “properly conceived justice system of a free society,” (I believe Stephen stated his argument was about “what’s right” or to that effect) then I’ll have to admit I would disagree with jury nullification. Within the context of complete and total objective law ...

Not to answer for Dean, but in this post I understand him not to limit disdain for jury nullification only to the context of "complete and total objective law." Likewise, I think he made that clear in other posts as well. And, for myself, I certainly did not so limit the context. As long as one is living in a fundamentally free society, the rule of law reigns supreme, and jury nullifification is anarchistic even in consideration of some particular non-objective law. Though all of this has been said before, many times, I did not want to leave the impression that I thought otherwise.

[Free Capitalist 0]

I had just read this thread for the first time, and all I can say is, wow, I had no idea that the juries had nullification power! If indeed true, that is one awesome power to behold, and I would also have to add my vote against it. I wouldn't call jury nullification destabilizing in principle, merely destabilizing for us, because it is a power that is external from the checks-and-balances system, and snuck in merely because of shenanigans of the British Common Law. It could potentially destabilize the entire government, because it is in effect a fourth "check", but one that wasn't planned for (and wasn't even mentioned) in the Constitution.

I'd argue that jury nullification doesn't work with the American system only (as opposed to being destabilizing in principle). Certainly more than one system of checks and balances can (and has) been conceived and enacted successfully, so in a different system where juries are recognized by the constitution as a "check" with veto power upon laws, the rest of the system could take that into consideration, place according "checks" upon this power, plan the balance of the power structure accordingly, etc. None of this is present in America, where all of the consideration had gone into working out the president-congress-court scheme, and making sure that that is as balanced as could be. It's highly dangerous if, within this system, people start taking advantage of the power of jury nullification, especially with our politically charged environment and people being willing out to pile out into the streets for trifles. The potential for misuse is staggering.

Also, as far as Jefferson's quote is concerned, it's important to remember that Notes on Virginia was written years before the Constitutional convention, that he wasn't present at the convention (nor participated in its debates), and since he lived forty more years it's highly likely that many of Jefferson's views had undergone revisions. So I'd say that it's Madison's views on jury nullification (contemporary with the Convention) that are more pertinent, whatever they may be.

[Paul's Here 0]

I had just read this thread for the first time, and all I can say is, wow, I had no idea that the juries had nullification power! If indeed true, that is one awesome power to behold, and I would also have to add my vote against it. I wouldn't call jury nullification destabilizing in principle, merely destabilizing for us, because it is a power that is external from the checks-and-balances system, and snuck in merely because of shenanigans of the British Common Law. It could potentially destabilize the entire government, because it is in effect a fourth "check", but one that wasn't planned for (and wasn't even mentioned) in the Constitution.

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The right to a trial by jury was established in the Constitution in Section 2 Article 3 which discusses the Judiciary Branch. As such, a jury is part of the judicial system. So the issue of "checks and balances" as it pertains to juries can only be viewed in that context: a jury is a check on the executive and legislative branches. So there is no issue of a "fourth check" that wasn't mentioned in the Constitution. A jury is to be viewed analogous to the judge who also has the power to interpret the law as well as determine the facts. There is nothing in the Constitution that restricts juries in the way that you'd like to. So if you think that jury nullification is anarchistic, you have two options: do away with trial by jury or put forth a theory that would somehow prevent the "final" authority from not exercising this power.

[Free Capitalist 0]

The right to a trial by jury was established in the Constitution

Oh I don't disagree with you, the trial by jury is one of the absolute cornerstones of free society, so essential that I'd have a hard time imagining a free society without it. I'd be the last person to ever argue against trial by jury.

So the issue of "checks and balances" as it pertains to juries can only be viewed in that context: a jury is a check on the executive and legislative branches. So there is no issue of a "fourth check" that wasn't mentioned in the Constitution.

The problem I have is that the jury can decide the validity of laws, which is a mind-boggling power within our president-congress-court scheme. The original, ancient, purpose of jury duty was not to determine the validity of laws, but merely the validity of evidence in a particular case. That is a vast difference. It was not a legal body to decide on abstractions, but a procedural body to decide on particulars. So I guess I'm making a historical argument against your historical argument The proper role of the jury in the States shouldn't be to weigh in on the propriety of laws, but to apply laws and merely decide on the objective significance of the concrete evidence one way or the other. And if they would decide that the law doesn't apply, they can only find that it doesn't apply in this case, and acquit this person only. So yes, if a law is unjust, until it is changed through proper means the juries will just have to keep acquitting people on concrete cases, acquittal after acquittal, mere particular after a mere particular.

put forth a theory that would somehow prevent the "final" authority from not exercising this power.

I guess you're saying that since the power is derived from the people, that a jury should be able to nullify laws, is that right? If so, I'd disagree, because just because government derives its power from the people does not mean the people can do whatever they want, and reject whatever they want, especially not by a majority but by 12 random people, and even more especially without any check from the existing president-congress-courts scheme. That would be a revival of plain old democracy, and the Founders strove very hard to avoid that. They enacted things like the electoral college precisely to curb the democratic (i.e. mobocratic) tendencies, and the ability of 12 random folks "from the country" (i.e. regular average people) to make final decisions on the entire laws of the country simply go counter to that.

Now you might argue that the people have this power philosophically speaking, that since they are the source of power they should be the final arbiter. But that's why we have a system of government, again the president, the congress, and the supreme court. So the people are the final arbiter of the laws, not only through Supreme Court which is appointed by an elected president, but through Congress which can overrule the Supreme Court's decisions. So just because they're "the people" doesn't mean they (we) can do whatever they want, whenever they want. There's a tenderly-balanced system for the proper procedure of how laws would get enacted or rejected, and the jury nullification completely undercuts all of it.

[Dean M. Sandin 0]

Whereas a jury that says in effect, "Yes, the defendant is objectively guilty, the law really does rationally apply, but he's on our side of a social or political or emotion-laden disagreement and we'll turn blue in the face before we uphold the law" steps outside the properly conceived justice system of a free society.

My main issue with this statement is that it suggest that whim is the only possible basis for all counts of jury nullification. The statement could just as easily be factually accurate (case dependent) if it read;

"Yes, the defendant is objectively guilty, but the law does not rationally apply because we have objectively evaluated the morality of this law (independent of any social, political or emotion-laden agenda), and the injustice which would be served by enforcing. We will therefore refuse to enforce immoral law."

In my opinion, justice should not be systematically abandoned in favor of order. It is also my opinion that once we legislate and enforce enough injustice, we will end up with disorder anyway.

First, regarding whim: my argument is that the description of jury nullification that I put in quotes is whim (subjectivity), not something that might or might not be based in whim. I mean that not directly in the epistemological sense, but in the political sense: in the context of objective law. The immorality of a law is a moral judgment. Our task is to translate that into the political realm through persuasion, not force. Jury decisions are elements of the objective control of force in specific cases, not of the establishment or furtherance of better laws.

Second, I don't see the matter as a valid dichotomy between order and justice (I looks like you don't like it either). In particular I see it as a false dichotomy that doesn't capture the basic value and purpose at the base of political philosophy.

The goal is to gain and keep our freedom, establishing individual rights systematically across our society. The means is objective law (the objective control of force). Consistently pursuing that goal through that means results in both justice and order systematically prevailing -- while the direct pursuit of either order or justice, bypassing the basic value of freedom under objective law, is a recipe for not achieving freedom under objective law.

In Objectivism, a great deal is made of false dichotomies that embody an intrinsic vs. subjective split, with the polar opposite of the intrinsic/subjective coin being the objective (and correct) position. I see a semblance of that here too. Order as the goal in itself without subordinating itself to objective means would be the intrinsicist side. Justice as the goal in itself without subordinating itself to objective means would be the subjectivist side.

The objectivist answer (small 'o' here since I'm not citing Ayn Rand, only myself) would be the rule of objective law in the name of life, liberty, and the pursuit of happiness. The U.S. Declaration of Independence and Constitution are an attempt to do it the right way. Their goal is "a more perfect union" that institutionalizes our individual rights by providing a framework for objective law.

[Paul's Here 0]

Oh I don't disagree with you, the trial by jury is one of the absolute cornerstones of free society, so essential that I'd have a hard time imagining a free society without it. I'd be the last person to ever argue against trial by jury.

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury" US Constitution, Art 3 Section 2. Then argue about how to restrict jury nullification.

The problem I have is that the jury can decide the validity of laws, which is a mind-boggling power within our president-congress-court scheme.

I never said "validity." I've discussed applicability to a particular case, as you yourself indicate below.

The original, ancient, purpose of jury duty was not to determine the validity of laws, but merely the validity of evidence in a particular case. That is a vast difference. It was not a legal body to decide on abstractions, but a procedural body to decide on particulars. So I guess I'm making a historical argument against your historical argument The proper role of the jury in the States shouldn't be to weigh in on the propriety of laws, but to apply laws and merely decide on the objective significance of the concrete evidence one way or the other. And if they would decide that the law doesn't apply, they can only find that it doesn't apply in this case, and acquit this person only. So yes, if a law is unjust, until it is changed through proper means the juries will just have to keep acquitting people on concrete cases, acquittal after acquittal, mere particular after a mere particular.

As I've said elsewhere.

I guess you're saying that since the power is derived from the people, that a jury should be able to nullify laws, is that right?

I never said "should" nor did I discuss the source of the power. That's another issue I don't want to get into here. I have only discussed the fact that juries, by their nature of being the final decision maker, have this power.

If so, I'd disagree, because just because government derives its power from the people does not mean the people can do whatever they want, and reject whatever they want, especially not by a majority but by 12 random people, and even more especially without any check from the existing president-congress-courts scheme.

Legislatures have always been free to restrict jury nullification but have not done so, so you cannot conclude that jury power is unchecked. And as I pointed out before, juries are part of the court system.

That would be a revival of plain old democracy, and the Founders strove very hard to avoid that. They enacted things like the electoral college precisely to curb the democratic (i.e. mobocratic) tendencies, and the ability of 12 random folks "from the country" (i.e. regular average people) to make final decisions on the entire laws of the country simply go counter to that.

Now you might argue that the people have this power philosophically speaking, that since they are the source of power they should be the final arbiter. But that's why we have a system of government, again the president, the congress, and the supreme court.

The Constitution did more than just create the Supreme Court.

So the people are the final arbiter of the laws, not only through Supreme Court which is appointed by an elected president, but through Congress which can overrule the Supreme Court's decisions.

How? Only by Constitutional Amendment, which involves more than just Congress.

So just because they're "the people" doesn't mean they (we) can do whatever they want, whenever they want. There's a tenderly-balanced system for the proper procedure of how laws would get enacted or rejected, and the jury nullification completely undercuts all of it.

I really don't think the US government is that sensitive to balance. There are very few cases that involve jury nullification, and even then, the case can be retried. It is almost impossible to get 12 people to agree about jury nullification, so the worst that happens is a hung jury. Nor are they doing "whatever" they want. If a jury wanted to convict someone of murder when the only charge was jaywalking, the judge would disregard the verdict. If a law is non-objective, a jury is capable of applying its reason to the situation.

[RationalBiker 0]

I don't see the matter as a valid dichotomy between order and justice (I looks like you don't like it either). In particular I see it as a false dichotomy that doesn't capture the basic value and purpose at the base of political philosophy.

But it is a valid dicthotomy for the man convicted of a "crime" that should not be a crime. It's an injustice in that the man does not deserve the punishment he is receiving. I reference drug laws primarily because they are such easy targets, but our "books" are chock full of unjust laws. I'm not sure I see any practical difference for the individual who is either convicted of a bad law or convicted of a proper law on whim by a bad jury. Either result is the same, a fine or jail (excluding death penalty cases). The remaining practical issue is which occurs with more frequency, convictions by bad juries or convictions of bad laws.

Second, I'd hesitate to call a law an objective law merely because it was derived through what should be an objective process.

I don't think it is your intention, and I wouldn't assume so, but your argument almost sounds like a "greater good" argument. Order and justice may be working just fine for the majority of people, but those poor saps who get nailed for bad laws, well that's just the price we have to pay for a basically rights respecting society. That said, I certainly leave myself some room for having misunderstood your argument.

Trust me when I say, I have to struggle with this at work as a police officer. I do not typically have to be in situations where I have to enforce bad law, but when I am I do as the law dictates I should do. But I don't see in any sense that justice is being served ON ANY LEVEL when I have to put some guy in jail for a bad law. Justice certainly isn't working for him.

As an aside, I saw this on Digg.com. While I will grant that there is a lot of questionable information and conclusions in this article, the particular part of interest to me is this;

The total number of marijuana arrests in the U.S. for 2005 far exceeded the total number of arrests in the U.S. for all violent crimes combined, including murder, manslaughter, forcible rape, robbery and aggravated assault.

If you go directly to the Uniform Crime Report, you can get a bigger picture of arrest proportions. So in 2005, roughly 13% of all arrests in the US are for drug violations; 5.6% for marijuana alone.

There are a lot of police officers out there devoting a significant portion of their on the job time to pursuing this and other unjust laws. I would venture to say that a fair portion (if not the bullk) of these marijuana arrests are by uniformed patrol officers, the guys needed to respond to emergecies, patrol neighborhoods, check businesses, etc., because the "real" narcs are working the bigger drug cases.

I guess to sum up my position, I don't support jury nullification in it current context, but I would be supportive of it if a more definitive checking mechanism were in place. However, I have to honestly admit, it doesn't bother me in the least bit when a jury lets some guy go for a law that shouldn't exist in the first place.

Since 7 pages of this discussion hasn't changed my position, I'm likely to fall back to lurking this thread. I do appreciate everyone's responses though, it is interesting reading.

[Free Capitalist 0]

I have to struggle with this at work as a police officer. I do not typically have to be in situations where I have to enforce bad law, but when I am I do as the law dictates I should do. But I don't see in any sense that justice is being served ON ANY LEVEL

Justice is being served in a wider sense, that the laws properly enacted are being properly enforced. That is the very cornerstone of a civilized society. And this principle is encouraged and reinforced every time a jury reaches a verdict, and a person is put away -- whether rightly or wrongly. The process is working. The person suffers, and we'd need to fix the law (through another hopefully orderly and successful process), but at least this part is good. I don't want to bring up arcane examples too much, but it's a good example -- Socrates was condemned to death by the Athenian people for "corrupting the youth" and such, as you know, and he was offered an easy chance to escape safely, but refused. He said that by living in Athens he had agreed to obey its laws, and to break them for whatever reason, good or bad, would be to violate the very nature of what it means to live in civilization. Plato wrote a whole dialogue on it, "Crito". So of course, he stayed, and drank hemlock and died.

[RationalBiker 0]

Justice is being served in a wider sense, that the laws properly enacted are being properly enforced.

I still disagree. Order is being served (because a system of rules is being followed regardless of whether or not they are just rules), not justice. I don't see any "wider sense" other than how the system impacts the individual. The system cannot be the beneficiary of justice, only people can be the beneficiary of justice. When the system treats people unjustly, it is not serving any aspect of justice, cornerstone or otherwise. I'm doubt that the man sitting in jail for smoking a joint feels comforted by the fact that that the cornerstones are well shored up.