At Reason, Damon Root: The Originalist Case for Jury Nullification. Responding to this post by Mark Pulliam:
There's good evidence that many 18th and 19th century Americans understood juries to possess the lawful power to reject guilty verdicts when the jurors believed the underlying law was unconstitutional.
Consider the writings of John Taylor of Caroline. A Revolutionary War veteran and widely read political and constitutional theorist, Taylor described juries as the "lower judicial bench." Under this view, just as judges (the "upper bench") possess the power to declare laws unconstitutional, so too do juries (the "lower judicial bench") possess their own version of a veto power. In other words, just as both the Senate and the House get to vote on legislation, both the upper and lower judicial benches get a say-so on the constitutionality of legislation. Juries, Taylor wrote, "judge really and substantially in every case."
Plus James Wilson, Thomas Jefferson and Alexis de Tocqueville…
RELATED: A non-originalist argument from Ilya Somin: Does Jury Nullification Undermine the Rule of Law? From the core of the argument:
Relative to a system where laws really are "uniformly applied, without excessive discretion," jury nullification can indeed undermine the rule of law. This sort of consideration is one of the reasons why I used to oppose jury nullification myself. But, sadly, we do not in fact have such a system. In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce – and vastly more violators thereof than the authorities can possibly go after. The data indicate that a large majority of adult Americans have violated federal criminal law at some point in their lives – to say nothing of the many state and local laws. Some 52 percent admit to using marijuana in violation of both federal law and that of many states; the true percentage of users is likely higher, as some may not be willing to admit it to pollsters.
With so many lawbreakers to choose from, police prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials.
A good contrast between originalist and non-originalist argumentation.
(Thanks to Mark Pulliam for the pointer).
UPDATE: Mark Pulliam adds:
Some originalist scholar ought to marshal the historical evidence on this. The same anecdotes get repeated on the other side.
Agreed. As far as I know there is no definitive full length law review article on the subject, although there are a lot of anecdotes and blog posts. Any takers? It would be a great student note.
FURTHER UPDATE: At Liberty Law Blog, Devin Watkins: Juries Judge the Law As Well. With some pre-drafting evidence:
One founding era example of jury nullification was the trial of William Penn, who founded Pennsylvania and it was named after him. The statute at the time prohibited religious assemblies of more than five people, other than the Church of England, and in 1670 Penn was charged with violating this statute. The jury found that he had done exactly what the statute prescribed but refused to recognize such an assembly as unlawful. The judge then held that the jury “shall not be dismissed until we have a verdict that the court will accept” and locked the jury up without food, water, or heat. But the jury still refused to find him guilty. Penn said to the jury, “You are Englishmen, mind your Privilege, give not away your Right,” to which juror Edward Bushel replied, “Nor shall we ever do.” The judge tried to fine the jury for their verdict, but the Court of Common Pleas upheld the right of the jury and dismissed the fine.
A second example was John Peter Zenger who in 1735 was charged with libel for insulting the colonial governor William Cosby. His lawyers basically admitted he had published the work that had insulted the colonial governor, but argued that truth was an absolute defense to liable. This wasn’t the commonly understood law of the time, but it so moved the American people that it is now incorporated into what we consider to be a core requirement of the freedom of speech in the First Amendment. It took the jury ten minutes to find him not guilty. The jury saw applying libel in this case as violating the natural rights of Zenger to freedom of speech.
Plus post-ratification evidence from John Jay and the Alien and Sedition Acts.
Posted at 6:42 AM