Jury Nullfication:

We the People need to force the government to comply with our written instructions in the Constitution. When they violate our instructions and apply force, we need to use juries to nullify their actions.

We need to enforce the 9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Foundation for Jury Nullification:

  • We the People are the sovereigns.
  • The governing are our servants, bound to our instructions in written constitutions, the Declaration of Independence, Bill of Rights, and common law.
  • Government institutions are soulless. They are essential to coerce compliance with law to minimize violence from war and crime. Their coercion is not always just.
  • Juries are the tools of We the People to nullify the tyranny of unconstitutional behaviors and constrain the governing from applying valid laws where such application is unjust. Juries are the only government body dominated by souls, the only institution where there is a moral sense of the injustice of applying coercion to specific facts.

Jury Nullification

The Founders viewed juries as a "Fourth Branch" to counterbalance government overreach. John Adams declared jurors had a duty to defy unjust laws, and the John Peter Zenger trial (1735) established precedent for nullifying oppressive prosecutions (e.g., seditious libel)1(link). The John Wilkes case (1763), where a jury awarded damages for unlawful arrest, reinforced this role.

Governments named for John Wilkes are Wilkes-Barre, PA, Wilkes County, NC, and Wilkes County, GA.

Key Founder Quotes on Jury Nullification

  • John Adams (link): “It is not only [the juror’s] 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.”
  • John Adams, 1774(link): “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”
  • Thomas Jefferson, 1788 (link) “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”
  • Federalist #83: Alexander Hamilton argued juries protect against "the abuse of unconstitutional statutes," while Justice Scalia later affirmed juries as a "fundamental reservation of power" against government overreach.
  • Federalist #28 (Hamilton): "The people, by throwing themselves into either scale, will infallibly make it preponderate." This aligns with mobilizing public opinion against federal overreach, as seen in the backlash against the Alien and Sedition Acts.
  • Thomas Jefferson, 1801 (link) “The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”
  • Chief Justice John Jay (1794, Georgia v. Brailsford): “You have, nevertheless, a right… to determine the law as well as the fact in controversy.” This Supreme Court instruction explicitly recognized the jury’s right to judge both law and fact, a foundational statement of jury nullification at the highest level (link).
  • Alexander Hamilton (Croswell Trial, 1804): “That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact… The court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
  • Thomas Jefferson (Notes on Virginia, 1782): “[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.”

Supreme Court Failure in Sparf v. U.S. (1895)

Seemingly a holdover from Fugitive Slave Laws, Jim Crow, and courts afraids of Citizen Sovereigns, the Supreme Court outlawed the use of Jury Nullification. We need to correct this defect.

A Madisonian Roadmap for Effective Nullification from the Report of 1800

The Report of 1800 was written by Madison in response to Federal prosecutions for free speech using the Alien and Sedition Acts. Individuals charged under these laws were left to fend for themselves. An example is Matthew Lyon, a congressman from Vermont, who was imprisoned for criticizing President John Adams and the Sedition Act itself. His constituents re-elected him to Congress while he was in prison.

Today, states should fund legal defenses and provide financial support for those charged for unconstitutional actions by the federal government. States can help force courts to add Jury Nullification to the common law.

States can also take actions recommended by Madison.

  • State Interposition Resolutions: Declare federal acts unconstitutional under the Tenth Amendment, as Virginia and Kentucky did in 1798.
  • Legal Challenges: Sue in federal court using the nondelegation doctrine or enumerated powers (e.g., New York v. United States).
  • Political Mobilization: Use Article V conventions or pressure Congress to repeal laws, per Federalist No. 46’s "refusal to cooperate with officers of the Union".
  • Targeted Noncompliance: Refuse state resources to enforce unconstitutional federal mandates, as seen in sanctuary cities resisting immigration laws.
  • Formal resolutions declaring federal acts void.
  • Cooperative federalism refusing enforcement (e.g., state noncompliance with REAL ID Act).
  • Amicus briefs in Supreme Court cases (e.g., state challenges to the Affordable Care Act).