Where "is the constitutional grant of authority to ban mere possession of cocaine today?"
Damon W. Root | August 15, 2008, 6:09pm
Does the Constitution allow jury nullification? Thomas R. Eddlem certainly thinks so. As the Cato Institute's Tim Lynch
details in a superb post, Eddlem was booted off a jury for daring to question federal drug laws:
The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where "is the constitutional grant of authority to ban mere possession of cocaine today?"
[...]
[District Court Judge William G.] Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn't going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the "problem juror." Once discovered, that juror was replaced with an alternate-over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
So who's right, Judge Young or citizen Eddlem? Here's legal scholar
Randy Barnett:
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed.
For more on Eddlem and his jury nullification, check out
this Boston Globe story. And don't miss the accompanying photo, complete with a copy of
Judge Andrew Napolitano's
A Nation of Sheep on Eddlem's table.
James Anderson Merritt | August 15, 2008, 8:33pm | #
Shannon Love worries that jury nullification, once tolerated, would proliferate and that justice would grind to a halt if everyone felt free to acquit by virtue of personal disagreement with a law.
I don't believe that. I have served on a jury and from my own experience as well as from many other personal anecdotes I have seen, I think jurors are conscientious, curious, generally intelligent, and committed to the rule of (just) law. I think, statistically, courts will find that jurors are willing to honor most laws as written. But when the law is unjust or applied unjustly, jurors have a duty to prevent a miscarriage of justice. The occasional acquittal because of a "problem" juror is in the tradition of letting 1000 guilty defendants go free to prevent the unjust conviction of a single innocent. So be it; that's the price we pay for erring on the side of caution. On the other hand, if so many different juries fail to convict, or if they acquit outright, in view of a particularly bad law or a particularly egregious pattern of mal-enforcement, then that provides good feedback into the system, that the law itself should be changed or scrapped, or that enforcement shouldn't be as capricious or heavy-handed as it may presently be. This would not represent the failure of our system, but rather the success of its inherent checks-and-balances.
A question you have to ask yourself: If the laws were trimmed back so that obstinate, arbitrary disagreement with the law by a juror happened only one in 1000 trials, or 1 in 10000, would there be enough law left on the books to prevent societal chaos? I would bet "yes." Would trimming away the thicket of laws to the point where most juries, most of the time, would uphold the law as written, without hesitation, be a bad thing? I would answer, "not at all."
Let's not use painkillers to treat the ills of the body politic. If there is pain (and jury nullification is definitely an expression of such pain), let's trace the root cause and deal with it, that the entire society might regain full health.
Ben1 | August 17, 2008, 3:57am | #
Robert,
The US federal government has no legitimate authority to control drugs except in commercial dealings between the states, so the treaties are invalid anyway; the feds can't legitimately make a treaty that delegates powers to themselves they are not authorized to have.
As for the commerce clause:
a) There is no authority for judges to amend the constitution, either in article V, or in article 3, section 1 (or anywhere else.) Go on, go read them. They're not long. I'll wait. Ok, nothing like that in there. So how judges have "interpreted" the commerce clause is irrelevant. It means what it says unless amended, and they can't do that. Funny, huh?
b) Judges have authority to determine outcomes under the law, but not to re-define the law. See article 3, section 1. The following are the powers of the Judiciary: (1) the power to try federal cases and interpret the laws of the nation in those cases; (2) the power to declare any law or executive act unconstitutional. Do you see the power to write or rewrite law in there? No? Funny, huh?
c) The commerce clause gives the government authority to regulate commerce *between* the states, not within them. The commerce clause, in context, and in its entirety: The congress shall have the power... "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" You see the power to regulate commerce WITHIN the states? No? Funny, huh?
These are the facts that underlie the unauthorized power grab that is the US federal legal machine today.
Ben1 | August 17, 2008, 1:51pm | #
Why are treaties unconstitutional? There is no limit on treaty power.
Constitutionally speaking, there are limits, and there is no "interpretive quandary" unless you can't read or are a sophist accustomed to reading "black" as "white." Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
See the specific descent of authority? The treaties are made "under the authority" of the United States.
So -- for instance -- since the United States doesn't have the legitimate authority to conduct searches and/or seizures without a warrant, it can't gain legitimate authority to do that via a treaty.
The only way for the feds to legitimately gain a forbidden or non-enumerated power or lose an enumerated, assigned or granted power is via article V, which covers amendment.
None of which has served to stop the federal government from taking any power it wants to have or feels would be convenient; but the point is that these are
unauthorized power grabs by a government out of control, not legitimately authorized powers that descend from the authority of a willing populace.
The entire
point of the constitution is to define what the legitimate authority of the government is, and to provide a method (via the judges) to prune away any powers that are taken by legislators and/or the executive in violation of that authority (and their oaths.) Judges are explicitly given the authority to find laws unconstitutional. They can't make new law or re-define existing law, but they
can un-make existing law. This is a "checking" power against the legislature. Likewise, they can find the actions of the executive -- the president -- unconstitutional.
For instance judges "defining" that the granted authority to "regulate commerce between the various states" means that the feds can "regulate within the states in any manner it so chooses" is not a granted power of the judiciary and so cannot result in legitimate authority for the feds.
The government is defined as a constitutional republic; but it has, without authorization, turned itself into a ruling aristocracy of 545: 400 representatives, 100 senators, 9 judges, and the president. These people are currently beholden to the constitution in only the loosest, most cursory manner and have repeatedly demonstrated that when they and the constitution differ, they will prevail. Of the bill of rights, the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, and 10th have all been in part or wholly ignored by the 545; the commerce clause, the absolute prohibitions against ex post facto laws, Article 3, and many others have been "interpreted" far beyond any rational or common sense point by sophists and worse.
I honestly don't think there is a remedy at law, since lawmaking no longer follows the rules. I don't think revolution is in any sense practical or possible; the majority is perfectly comfortable, and that's the trump card right there. However, I do think that like all civilizations where rule is by fiat rather than reason, systemic failures will prevail where reason could not -- look at the monetary policies for a good example of fiat management failures with society-wide consequences of immense proportions; at Iraq and Afghanistan for examples of failure of diplomacy and common sense and the outbreak of a series of unaffordable decreed wars; At the nearly complete breakdown of the population's respect for law from drug laws to copyright laws to sex laws and so on. America is a modern-day Rome; looks like it won't last nearly as long, though.
Mad Max | August 17, 2008, 5:32pm | #
"As early as 1794, Chief Justice Jay, while personally charging a jury in a civil action, reminded them that they were expected to limit themselves to questions of fact and leave questions of law to the judges."
Here is the exact quote:
"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 in 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, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision."
*Georgia v. Brailsford,* 3 U.S. 1 (1794)
Sadly, this was basically overruled in Sparf v. U.S., 156 U.S. 51 (1895), but there was a vigorous dissent from Justice Horace Gray.
Having juries judge the law is not the same as nullification. Nullification is when a jury or judge or government official ignores the law to deliberately set a guilty person free even though the evidence shows the person's guilty beyond a reasonable doubt. More generally, nullification could be seen as ignoring the law by those responsible for interpreting and enforcing it.
Of course, we all know that juries are the *only* ones who ever nullify the law. Judges, cops, and other government employees always scrupulously fallow the law. If a juror interptets the law differently than the judge (for example, by interpreting commerce among the states to mean, you know, commerce involving more than one state, rather than possessing drugs within the boundaries of a single state), then obviously it's the juror doing the nullifying, not the judge who is all-wise and always knows exactly what the Constitution means.
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