Can we help revive our republic with the prudent use of our right to nullify laws?
When we serve as jurors, we can literally take the law into our own hands. As Thomas Jefferson maintained, if citizen jurors "think the permanent judges are under any bias whatever in any cause," they can "take on themselves to judge the law as well as the fact." So, in any instance when jurors believe a judge is not issuing rulings according to the law, but rather is allowing political bias or bribery to dictate his decisions, jurors would not just determine guilt or innocence, but would also assume the judge's role in the proceedings. John Jay, the first chief justice of the U.S. Supreme Court, ruled that while typically "juries are the best judges of facts" and "courts are the best judges of law," there are instances in which "both objects are within [juries'] power of decision." Under such circumstances, juries "have a right to take it upon [themselves] to judge of both, and to determine the law as well as the fact in controversy." As a result, jurors not only can override a judge, but can nullify existing law.
As I noted in my book Constitution Cafe: Jefferson's Brew for a True Revolution, this right to "nullification" was first established in the New World in 1735. John Peter Zinger, a New York newspaper publisher was arrested for "seditious libel" because he criticized the royal governor of New York in print. During the trial, the royal prosecutor himself acknowledged that what Zinger had written about the governor was true, but that Zinger's arrest was nonetheless legal because such criticism was banned. The jury, though, ruled in Zinger's favor, declaring him not guilty. Zinger had indeed broken the law, but since the jury considered the law to be unjust, it found him innocent.
To this day, though it is not widely known or practiced, nullification remains a right in jury trials. A jury (or a single juror) can invalidate the law as it applies to the specific case over which it is presiding and find a defendant not guilty even if he has committed the infraction for which he is standing trial. In our nation's history, nullification has been used for both humane and destructive purposes by juries that were not impartially selected. To be sure, one must beware that this power of the people can cut both ways, to bolster a democracy, or undo it. For instance, during the Civil War, juries sympathetic to the cause of emancipation refused to convict abolitionists even when they broke laws prohibiting them from helping slaves. On the other hand, during the Civil Rights era, all-white juries refused to convict whites who murdered blacks no matter how damning the evidence.
How could we use this authority today to resuscitate our republic? Well, since corporations have all the rights of persons with none of the responsibilities, let's treat them like persons and make them face jury trials. That way, a jury trial can decide campaign finance and political speech cases such as Citizens United v. the Federal Election Commission. My bet is that a jury of the people will strip corporations of anything smacking of rights that our Framers had meant to be possessed only by individual Americans. Since judges serving on courts are under no obligation to inform jurors of their right to nullification, we must inform ourselves. That way, from here on out, when we serve as jurors, we will be vigilant when it comes to making sure that decisions that are rendered have our and our republic's best interests at heart.
I can see it now -- juries of our peers seizing our republic from the hands of elected representatives and Supreme Court Justices who no longer care a whit about their will, much less the intent of the Framers of our Constitution, by rendering decisions that may go against the letter of existing statutes, but that would make our Founders proud. Can you?