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 government realizes 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 forever, 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., gun laws, et al. Now I would like to turn your 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 milk 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 for 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.