The right of jury nullification is considered by many to be the “last bastion” of liberty and a final check against government oppression. But does this apply to all cases? Does it allow juries to nullify constitutional law?

In “The Jury’s Constitutional Judgment,” University of Georgia School of Law assistant professor of law Nathan Champan argues there’s a case to be made, although it’s not as clear-cut as one might imagine. Although Chapman concludes that “the resulting constitutional construction is a middle ground between judicial supremacy and judicial abnegation that promises a more symbolically and substantively democratic constitutional law,” ultimately the de facto right of jury nullification remains clear due to the sheer impossibility of proving when it actually occurs, as well as the fact that the Constitution places no such limitations on a jury’s verdict.

“Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque,” he writes. “The Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the facts of a case and offer solid, though mixed, support for the longstanding doctrine against the jury’s right to nullify statutes on the basis of its own constitutional view.”

There was little room for doubt in colonial time he explains, citing Erving V. Cradock and a 1730 case involving New York publisher john Peter Zenger. Regarding the latter case, “as a matter of black-letter law, he was wrong. The jury acquitted.”

Beyond that era, Chapman looks to the Constitution itself for guidance, which he writes “says little about the allocation of authority between judge and jury, and even less about how a court should decide constitutional questions. Given the paucity of constitutional text on the issue, it is unsurprising that early American practice was diverse and contested.”

(Out of curiosity, I pursued the Virginia Ratifying Convention, considered to be one of the most important, for any discussion regarding jury nullification. Although the paramount value of a trial by jury was emphasized repeatedly, there was no explicit mention of jury nullification).

“What is equally clear from early criminal and civil cases is that virtually everyone took for granted the jury’s authority to apply constitutional law to the facts of a case,” Chapman writes further. “But just because the history supports the jury’s application of constitutional law to the facts of a case does not mean that the Constitution requires judges to defer to the jury’s constitutional judgment.” (bold emphasis added).

However, as James Madison explained in Federalist  #45, the Constitution lists enumerated federal powers that are “few and defined.” If the right of a judge to overturn or reject a jury’s verdict due to nullification existed, it would have to have been explicitly state. Further, this would have no doubt been a source of controversy during constitutional conventions such as Virginia’s, when matters such as Congress’ power to levy taxes were hotly debated.

In some ways, Chapman seems to interpret it differently when it comes to the power of juries versus that of the judge (bold emphasis added):

There are important limits, however, to the jury’s role in constitutional adjudication. All of the reasons that weigh against the jury’s right to nullify apply with equal force to the jury’s right to apply constitutional law without judicial oversight. The jury is not entitled to construe the Constitution for itself. The jury must abide by the judge’s instruction on constitutional law, and courts should review the jury’s application of that law for reasonableness.

Put simply, courts should treat the jury’s constitutional judgment as they would any other jury judgment, with one caveat: when the application of a constitutional standard may be characterized as either a question of law, for the court, or a question of fact, for the jury, the court should choose the latter.”

In discussing the one exception, the Seventh Amendment’s Reexamination Clause, he writes that it “says nothing about the initial allocation of responsibility between judge and jury. Rather, it limits the authority of judges to reexamine facts a jury has already found. It does not tell a trial judge which kinds of questions to send to a jury in the first place.”

Yet, there is nothing in the Constitution that limits the power of juries or grants judges or anyone else the right overturn their verdicts.

Nevertheless, Chapman points out that at that time “there is little doubt that the criminal jury enjoyed almost universal authority to decide questions of law. But allocations of authority to the civil jury varied widely across time and jurisdiction; no matter what early Americans said about the jury’s role, judges increasingly deployed an array of procedural devices, such as directing a verdict or ordering a new trial, designed to curtail the jury’s independence.”

Citing the infamous 1895 Supreme Court decision in Sparf v. United States, Chapman argues that “there is one clear doctrine regarding the jury’s authority to construe the Constitution: the criminal jury must follow the judge’s legal instructions. The jury may not ‘nullify’ the statutory law on a case-by case basis…. the necessary implication is that the jury may not acquit because the jurors personally believe, contrary to the judge’s legal instruction, that the Constitution prohibits the law, prosecution, or conviction.”

Yet, this does not offer much proof that the Constitution itself prohibits jury nullification, as it was a Supreme Court offering an opinion on the Constitutional role of jurors over a century after the document was written.

Chapman acknowledges this, noting that “the doctrine against jury nullification is in tension with practice at the founding and well into the nineteenth century.” Further, “the Court has never clearly addressed the jury’s authority to apply constitutional law; rather, a handful of doctrines point in different directions.”

Although they may have had little opportunity to address the matter, the Court would also have zero evidence to prove any branch of the federal government, including the courts, have the right to override a jury verdict.

Chapman rightfully identifies the immense value of jury nullification in restricting an overreaching central government. “There is no question that the Framers understood that Congress could go beyond its authority; they frequently referred to such acts of a legislature as ‘usurpations.’ And there is no question that the Framers counted on ‘the People’ to correct such usurpations. Some early Americans likely would have counted the jury among the institutions with the authority to counteract legislative usurpations.”

What’s interesting is Chapman’s take on Supreme Court Justice John Jay’s instructions to the jury in the 1794 case Georgia v. Brailsford.

During the trial, Jay told the jurors the following (bold emphasis added):

It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision.

Referencing the case in footnotes, Chapman includes an excerpt from a book titled History of Common Law, in which the author claims that “Jay’s view was already somewhat anomalous [irregular] in 1794. The balance of power between judge and jury was undergoing a rapid shift. Within a decade or two, both state and federal courts were freely granting new trial for verdict against law.”

It’s an argument Chapman makes when discussing court trials following the Whiskey and Fries Rebellion, in which the presiding judge gave no such instruction to the jurors. With the latter, the judge likely “believed the jury had a duty to decide ‘the law and the facts, on their consideration of the whole case,’ but that the judge had a corresponding duty to steer the jury toward what he took to be the correct view of law.”

However, despite all opposition to the notion of jury nullification, Chapman observes that “its weight has been diminished by the jury’s power to nullify, and by persistent scholarly arguments for the jury’s right to do so.” (bold emphasis added).

It is worth noting that Justice Jay’s view on juries was also shared by Thomas Jefferson. In a 1789 letter to James Madison, he wrote the following (bold emphasis added):

In the form of juries therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know, that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross & pile, than to that of a judge biased to one side; and that the opinion of 12. honest jurymen gives still a better hope of right, than cross & pile does. It is left therefore to the juries, if they think the permanent judges are under any biass [sic] whatever in any cause, to take on themselves to judge the laws as well as the fact. 

Though Jefferson was not at the 1787 Constitutional Convention, his opinion only provides added weight toward Jay’s regarding juries. Although there is opportunity for abuse of that right, it is also where the greatest trust could be placed within government.


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