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A question we should all ask ourselves
The common perception of most people that I have come in contact with is that being called to serve on jury duty requires you dispense punishment in accordance with the will of the state. What you are sometimes not told is that you, as an independent juror, are not bound to carry out the wishes of the judge or the state. If you believe that the law is being unjustly applied in a case because you feel that the law according to your understanding is wrong and unconstitutional or if the government’s case is an overreach of their power, you can vote to acquit. This is called jury nullification. I don’t claim to be a legal scholar or an attorney. From my understanding of the definition of jury nullification and looking at the actions of the jury pool in the Montana pot case, you could cite this case as a real life example.
In addition, state governments also have the right to nullify any federal law(s) that they believe are an overreach of Federal government’s power and unconstitutional. Proposition 19 was an example of state nullification where a group of citizens wrote up a ballot initiative to express their disapproval of the current Federal drug laws surrounding marijuana. While Prop 19 lost at the polls this past November, the national dialogue about bringing an end to 70+ years of drug prohibition (a policy endorsed by Harry J. Anslinger and rubber stamped by Franklin D. Roosevelt, the latter revered as a “hero” by many living Democrats) has grown immensly in the past few years.
We have also seen the theory of nullification in action with several states refusing to comply with the recently passed health care reform law, aka Obamacare by its strident opponents including yours truly. There is a bill in New Jersey legislature that is seeking to nullify the actions of the TSA regarding their invasive searches of airline passengers. A lot of the pooh-poohers of nullification will conjure up unsavory images of our nation’s dark eras and say how state nullification of laws is right up there with preserving deplorable institutions of the past or present. Some people on the left will bring up images of segregation and Bull Connor spraying African Americans and civil rights leaders with firehoses or of the Columbine High School massacure while people on the right will bring up images of terrorist acts like 9/11 and images of Osama bin Laden.
What does Bull Connor getting happy with a firehose or the 9/11 terrorist acts have to do with a state or a people expressing their disapproval of current overreaching Federal legislation regarding health care, drug laws or preserving basic civil liberties as defined by our Constitution? Could it be possible that the Federal government is wrong in these specific cases and that bringing up these unrelated cases is nothing more than mere smoke and mirrors to stifle intelligent and rational discussion on how flawed and wrongheaded some of these current policies are? Should the 50 states just be meek and compliant to the will of the Federal government at all times?
Some would say, “the law is the law…end of discussion! Shut up! You’re being a traitor/Al-Qaeda sympathizer/neo-Nazi/an enabler of beastiality. Sedition! Sedition!” But what if you believe that the laws being applied are wrong, immoral and unconstitutional? What do you say then? Gee, Nancy Pelosi and John Boehner are smarter than I. I should just bend over and take it up the ass. Or do you, in the words of Jimney Cricket, stand up, speak out and “let your conscience be your guide?” Until people from the left and right can break themselves from the co-dependent mindset of “my country/party, right or wrong,” we will become compliant like the domestic abuse victim who gets beaten over and over by their physically and verbally abusive spouse and is afraid to speak out against the abuse and abuser(s).
The way I see it, we, the people, are already there and have let fear of reprisal and retaliation instead of our consciences become our guides. All because we want to be a part of “The Get Along Gang” or hold on to that Pollyanna like illusion of hope that maybe these stubborn people will see things are way. So taking that self-defeatist/self loathing approach, we convince ourselves to stay in that abusive relationship. That fantasy ending happens in the Wonderful World of Walt Disney, an afterschool special or a Care Bears or Veggie Tales cartoon. The last time I checked, there were no cartoon cels, scripts or movie cameras on this set of real life.
The most patriotic thing we can do as Americans is to stand up to our government and say enough is enough when we believe that they are stepping over their boundaries. To their credit, the Tea Party movement did this and succeeded in helping the Republicans take back the House in the 2010 midterm elections. So did the abolitionist movement back in the 19th century and their influence brought about the end of slavery. Likewise with the state of New York in the 1920s refusing to comply with the Federal alcohol prohibition policies and helping bring an end to national Prohibition.
Looking at the Montana pot case, Prop 19 and the current legislation from various states to not comply with the recently passed ”health care reform,” jury and state nullification of Federal laws is a healthy extension of the Constitutional checks and balances that many on this blog claim to revere. It is a practice that we need to keep in place if we are to remain a healthy republic, democracy or whatever you want to call what we have here (I believe it’s a corporatist tyrannical clusterfuck with an aiding and abeting duopoly disguised as government). If we don’t keep our government in check, we will be destined to get the government we deserve while our freedoms get thrown into the trashbin of history.
Some links for your amusement on nullification and the Montana pot case:
Summary of the Montana pot case from a libertarian point of view:
http://reason.com/blog/2010/12/21/montana-jurors-just-say-no-to
Website for the Fully Informed Jury Association, supporters of jury nullification
Website of Thomas E. Woods, Jr. author of “Nullification: How to Resist Federal Tyranny in the 21st Century” and a explanation of state nullification.
http://www.tomwoods.com/learn-about-state-nullification/
Why are comments closed on the first part of this post?
some mistake, some computer fart, I’ll go see if I can fix it.
… FIXED!
Nice post.
Nullification – there’s a new concept I hadn’t read about until this post.
From the “War on Drugs” site:
“Although the intent of a ‘War on Drugs’ may have been to target drug smugglers and ‘King Pins,’ over half (51.6%) of the 1,663,582 total 2009 arrests for drug abuse violations were for marijuana — a calculated total of 858,408. Of those, an estimated 758,593 people (45.6%) were arrested for marijuana possession alone. By contrast in 2000, a total of 734,497 Americans were arrested for marijuana offenses, of which 646,042 were for possession alone.”
http://www.drugwarfacts.org/cms/Marijuana#Total
Legalize marijuana and the above stats drop to virtually nil. Legalizing marijuana would ease prison overcrowding (and redistribute resources for other needs, such as real “drug rehab” for meth, crack, etc.). Legalizing would save law enforcement money. Save taxpayers money. Create jobs and income for businesses catered to marijuana growth, cultivation, production (edibles, hash, etc.), medical/health use, etc. etc. etc.
Marijuana is CA’s biggest cash cow but it is not taxed like it should be because it ain’t legal, yet. When marijuana becomes legal, the state’s tax coffers will eventually see more funds, to say nothing of how a drastic reduction in arrests and incarcerations would also lower the costs of housing inmates in prisons, reduce costs for law enfocement, and to also say nothing of the extraneous costs society incurs everytime a person is sent to prison for possessing a harmless plant.
Former New Mexico Governor Gary Johnson – a Republican – called the War on Drugs an abysmal failure and he was right.
”Make drugs a controlled substance like alcohol … legalize it, control it, regulate it, tax it. If you legalize it, we might actually have a healthier society.”
http://www.mapinc.org/drugnews/v99.n1086.a10.html
Legalize it. And nice post, Guy.
Thanks.
Nullification as described in the above post does not exist as a legal concept in the United States. As a juror, you are not compelled to “carry out the will of the state or the judge.” You ARE required to apply the facts of the case to the law of the state. if you don’t like the law, you cannot ignore it, you must follow it. There would be no point to a democracy or a republic if any yahoo off of the street to create and apply his own law. If you don’t like a law, petition to get it changed or run for election yourself.
Similarly, the concept that a state can “nullify” a federal law is completely ridiculous. By constitutional definition federal law preempts state law. If there is an directly applicable federal law in conflict with a state law, the federal laws application wins. The only exception to this rule is if suit is brought and won challenging the constitutionality of the federal law.
In the case of the medical marijuana cases in California, lack of prosecution is almost universally related to the exercise of prosecutorial discretion to not step into the arena of challenging the state law, rather than the “nullification” of that federal law.
If the point of the post is to ignore “immoral” or “unethical” laws that you disagree with, that is juvenile and poorly thought out. If anyone chooses to ignore the law, they should be held accountable whether they violate the law or they are charged (for example, as a juror) with its implementation. This is the basis for the formation of our republic.
If we allowed each individual to ignore laws that they find “immoral” or “unethical,” we would quickly descend into anarchy – after all, what I find to be immoral or unethical is certainly going to be different from what Mr. Fawkes finds to be immoral or unethical. I wonder what Mr. Fawkes position on “nullification” would be if the crime involved opposition to planned parenthood protests or support for the pro life movement. I wonder Mr. Fawkes position would be regarding refusal to implement laws relating to hate crimes against gays.
We are a republic for a reason. We have an electoral process for a reason. Or system has complex, legally prescribed checks and balances. Mr. Fawkes seems typical of folks today advocating civil disobedience without recognizing that civil disobedience comes with a price tag – criminal arrest and prosecution for those disobeying the law. I greatly respect the civil rights protestors of the 60’s that acted without violence to change the law understanding that they would have to go to jail to make their point. Civil disobedience without consequence as espoused by Mr. Fawkes is nothing more than mere thuggary.