With Pres. Obama’s declaration of war on liberty (a.k.a. his inaugural address), and with the GOP’s apparent capitulation on taxation and spending, libertarians seem to have little reason to hope. Polls show that as many as one in five Americans hold libertarian views (i.e. the government regulates too much and should not be involved in private moral issues). Why, then, does Washington largely ignore such a large voting block? Why, then, does Washington constantly try to control people’s private lives? The next two to four years look bleak, but a determined minority can check the Left through jury nullification.
If 20% of Americans think the government has gone too far, then nearly 94% of twelve person juries will have at least one liberty minded member. If the government knew that it had only about a 6% chance of convicting a defendant of violating an unjust law, its intrusions would stop.
The US legal system seeks to suppress juries’ right to nullify a law. Jurists are asked to swear an oath to follow the law as written and the judge’s instructions as delivered, but jurists need not ignore the Constitution, natural law, and common sense. The point of the Constitution’s mandate of a jury of peers is to prevent the imposition of imperious dictums and political populism upon defendants, not to enable the government to convict whomever it sees fit. Further, absent some malfeasance such as bribery, jurists cannot be punished for delivering a verdict with which the government disagrees.
No jury should ever convict someone for simply possessing or carrying a weapon. No jury should ever convict someone for simply possessing an intoxicant. No jury should send a man to prison for stupid and vague regulations such as importing lobster in bags vs. boxes. Juries should nullify cases where adults choose to eat unhealthy foods like raw milk. Juries should nullify any federal law that exceeds the limits of the 10th Amendment.
Of course, prosecutors are not fond of independent thinkers who would decide for themselves whether a statute is constitutional and just. Indeed, they interview jury candidates to weed out such troublemakers. When the prosecutor asks a candidate whether he will obey the judge’s instructions, the candidate might say “yes, but I obviously will not abandon common sense.”
Likewise, defense counsel has a selfish interest in his client’s freedom. Lawyers may not flatly ask candidates if they intend to nullify. Defense counselors might instead ask this: “have you read the US Constitution?” The correlation between having read the Constitution and being interested in preserving liberty should be quite strong. Jury nullification is not about freeing criminals but about stopping the tens of thousands of unjust and unconstitutional laws.
Dear Reader: the next time you receive a jury summons, do not think of it as an intrusion into your free time; rather, think of jury duty as a chance to defend liberty. Before voting to convict the defendant, ask yourself if a law was actually violated. Did the government have the right to enact this law? Is the law consistent with natural rights? Where in the US Constitution or your state constitution is the power to enact this law? If the law is unjust by these measures, then the real crime is in enforcing it. Jurists have the right and responsibility to consider higher laws before turning an ordinary citizen into a criminal.
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