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Why Christians Should Love Jury Duty: Original Intent Through Jury Nullification

by Steve Williams

Have you heard anything like this lately: “I don’t like a lot of what Barack Obama is doing, but he’s still our President.”? Or how about: “We may not like some of the laws that are passed by Congress, but we’re a nation of laws, therefore we have to follow them.”? I’ve heard many Christians lately refer to the thirteenth chapter of the Book of Romans (“Everyone must submit to the governing authorities…”) as if our obligation to obey the government is unquestionable, and absolute. This is surprising to me, as it is, 1) untrue, and 2) suicidal. I’m not sure if folks have forgotten the truth about this, or if they never much had to think about it so much before, but consider the following observations about mankind’s “law” and our obligations thereto, and see if you don’t agree.

I’ll first address the scriptural mandate, then the Constitutional (if you’re not a Christian, feel free to skip ahead). Paul, who wrote the book of Romans, spoke of obeying the “governing authorities” in a general sense, not an absolute sense. This is made clear by the obviously general presuppositions in the surrounding context in Romans, wherein he goes on to state “For rulers are not a terror to good conduct, but to bad. Do you want to be unafraid of the authority? Do good and you will have its approval.” He is obviously speaking in general terms, as history is replete with examples of “authorities” who have not only disapproved of good behavior, but who have executed some (including Paul, many of the other apostles and Jesus) who engaged in it.

Moreover, we have several examples of refusal to follow the “law” of the day in adjacent scriptures, such as in Acts chapter 4, verse 19. In this instance, Peter and John had been arrested for sharing the gospel, and ordered “not to preach or teach at all in the name of Jesus.” What was their answer? “Whether it’s right in the sight of God [for us] to listen to you rather than to God, you decide; for we are unable to stop speaking about what we have seen and heard.” (verse 4:19-20). Here the two most prominent disciples are stating very clearly that when mankind’s “law” conflicts with “God’s law”, mankind’s law is trumped. There are many other examples in the New Testament supporting this viewpoint. In addition to civil disobedience, the apostle Paul also gave us the example of insisting on the full suite of his rights as a Roman citizen (for example, see Acts 22:25-29). Chuck Colson and Timothy George have a nice piece on the civil disobedience that people of conscience may need to soon engage in here: .

Now for the Constitutional position. In terms of U.S. law, what is the supreme law of the land? Many are aware that it is The U.S. Constitution, but if an unconstitutional law passed, how is that law nullified? This is the place where there seems to be some commonplace confusion, as many believe (erroneously) that unconstitutional laws are nullified “when courts find that they are unconstitutional”. In actual fact, U.S. courts have held from early on that unconstitutional laws never have any validity whatsoever (either before or after they are found to be un-Constitutional), as “their unconstitutionality dates from the time of their enactment, and not merely from the date of the decision so branding” them! Take a look at the following court rulings that affirm this:

“All laws which are repugnant to the Constitution are [not “become”!] null and void”. Marbury vs. Madison, 5 U.S. (2 Cranch) 137, 174, 176, (1803).

“Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” Miranda vs, Arizona, 384 US 436 p. 491.

“An unconstitutional act is not a law; it confers no rights, it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County 118 US 425 p. 442.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 18 Am Jur 2d, Sec 177 late 2d Sec 256.

(Citizens Rule Book, p. 7)

OK, so we’ve established that not only is it alright to disobey unconstitutional laws, but I think we can easily infer from the preceding is that enforcing them is illegal and immoral. But you might say, “Steve, that all sounds good in theory, but what happens when, say, somebody is arrested for a hate crime because they shared the fact that Islamic scripture has over 100 verses commanding Christians and Jews to be slain (just for example: )? How will your theory get us out of jail?” Ah, I’m glad you asked, because I now have a chance to share a little bit of the genius of our Founding Fathers. The answer is: Jury Nullification!

Our Founding Fathers knew that there might come a day when all three branches (Executive, Legislative and Judicial) would become corrupt simultaneously. As a “safety valve” they built into our Constitution the right to jury trials, so that We The People could render bad laws “toothless” by voting “not guilty” when people are charged with them. Let’s take a look at some rulings and quotes that make clear that intent on their part:

John Adams, who became the second U.S. President, in 1771 said of the juror: “It is not only his right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Quoted in Yale Law Journal 74 (1964):173.

John Jay, first Chief Justice, U.S. Supreme Court, in the very first jury trial before the U.S. supreme Court in 1794 (Georgia v. Brailsford, 1794:4) said: “The jury has a right to judge both the law as well as the fact in controversy.”

Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence, 1804: “The jury has the right to determine both the law and the facts.”

Alexander Hamilton (1804): Jurors should acquit even against the judge’s instruction “…if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.” Quoted in Joseph Sax, Yale Law Review 57 (June 1968): 481 494.

Thomas Jefferson, in a letter to Thomas Paine, 1789: “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.”

“There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted.” Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal 74, 173 (1964).

“During the first third of the nineteenth century,…judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge’s instructions. A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law, its interpretation and its validity to the jury.” Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal 74, 174,(1964).

“The jury has the power to bring a verdict in the teeth of both the law and facts.” Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning v. District of Columbia, 138 (1920).

“When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic.” Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems 43, No.4, 71 (1980).

There are plenty more. If you’d like to see more quotes and precedents, look up the term “Jury Nullification”. Jury Nullification has a noble history; a refusal by juries to prosecute defendants under the Fugitive Slave Act helped lead to the abolition of slavery. Obviously, tyrants hate this “safety valve” and will do anything in their power to neutralize it (including falsely instructing juries that they don’t have this right, and erroneously referencing bad precedent), but until a Constitutional Amendment removes this right, it remains part of the Supreme Law of the land. Know it, don’t forget it, and pass it on. This knowledge may become crucial in the next few years.

My Thanks to the Citizens Rule Book from which I collected some of these facts.

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