by Rick Tompkins,
1996 candidate for Libertarian Party Presidential nomination
The founders of this nation understood tyranny. They realized the new republic could easily become tyrannical. That is why they were so careful to preserve the people's right to trial by jury. They understood that there is no folly so great that some legislature might not enact it into law.
Some laws are simply wrong, no matter what the Supreme Court says. In the 1850s, for example, the Congress passed a "fugitive slave law" making it a crime for people to help slaves to escape their bondage. That law was upheld by the Supreme Court in the infamous Dred Scott decision.
Fortunately, we still have a way for individual citizens to resist the depredations of bad government, bad law, over-zealous law enforcement people and politically ambitious prosecutors -- we still have the jury system. In American law, a unanimous decision of the jury is still required to convict in a criminal case. When juries refuse to convict people being tried under patently unjust laws, those laws become unenforceable and eventually are null and void. That's where we get the term "jury nullification," one of the last protections our society has against tyranny.
In the 1850s, northern juries refused to convict members of the underground railroad. In the late 1920s and early 1930s, many juries refused to convict peaceful bootleggers under alcohol prohibition. Ever since the John Peter Zenger case in the 18th century, American juries have had the power, the right, and the duty to judge the justice of the law and its proper application, as well as the facts of the case.
Jury nullification, as it is commonly known, is not popular with our modern statists. They insist all laws must be enforced until they are changed -- in other words "the law is the law." By those standards, how much longer would it have taken to abolish the government-approved abomination of human slavery in this country?
If it is true, and not just a pretty sentiment, that in America the government "derives its just powers from the consent of the governed" as Thomas Jefferson wrote in the Declaration of Independence, then it certainly follows that the power of consent includes the power to withhold that consent. Today, the only truly effective place for the average individual to exercise that power of consent is in the jury room.
Judges in our courts routinely instruct juries that they must confine themselves only to the facts, and have gone so far as to dismiss potential jurors who show knowledge of their true role. But we need to recognize jury power for what it truly is -- our power of consent, and the handle by which we can hold government to the bonds of the Constitution.
Government agents have gone so far as to arrest people for handing out leaflets informing the public, including jurors, that they have the right to judge the laws. Although charges are rarely filed against people who are simply exercising their First Amendment rights, the intimidation is certainly felt.
There is a growing war against juries. Increasingly, people are denied jury trials by various means, all in violation of the Bill of Rights. In regulatory cases, tax cases, asset forfeiture cases and many others where government arbitrarily classifies many "offenses" as civil, rather than criminal, the right to jury trial has been severely infringed upon, the clear text of the Constitution ignored.
Prosecutors use peremptory challenges in jury selection to get rid of people who are not sufficiently deferential to authority. Judges will sometimes declare mistrials if they think any of the jurors are aware of their power. Many politicians are trying to reduce the size of juries and to further restrict which cases "qualify" for jury trials. In some benighted areas there are efforts to do away with the requirement for unanimity in order to convict a defendant.
All of this is extremely dangerous to our freedom. Without a system of free juries, the only thing standing behind grass-roots political action in opposing the encroachment of tyranny is the Second Amendment -- and that is a frightening thought, indeed.
Note: This is an excerpt from a longer article, On Tyranny.
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