In my opinion, the last bastion against an errant government (not counting armed revolt) is jury nullification. Very early in our country's history, the role of jury nullification as a defense against oppression by the State was unquestioned. It remained so until the 1850s, a time during which many juries began not convicting in prosecutions under the Fugitive Slave Act. Judges, seeing a mighty demonstration of the power of juries, began to change the rules of the Court. The primary and most devastating change was that juries would no longer be permitted (by judges) to judge the law; they would be confined to judging only the facts of the case.
The new rules were (and still are) a blatant infringement on the rights of juries. That's not just my view...
"The jury has a right to judge both the law and the facts in controversy."
~ John Jay, First Chief Justice, U.S. Supreme Court, 1789
"The jury has the right to determine both the law and the facts."
~ Samuel Chase, U.S. Supreme Court Justice, 1796
"The law itself is on trial quite as much as the cause which is to be decided."
~ Harlan F. Stone, 12th Chief Justice, U.S. Supreme Court, 1941
Juries routinely are told by judges that jury members cannot judge the law, only the facts of the case. Not true. Numerous case decisions have upheld the right of any juror to nullify a "bad" law and vote to acquit. Example: "The jury has an unreviewable and unreversible power...to acquit in disregard of the instructions on the law given by the trial judge." U.S. v. Dougherty, 473 F 2nd 1113, 1139 (1972). Example: "...it is presumed that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine law as well as the fact in controversy." [Emphasis added.] State of Georgia v. Brailsford, et.al. 3 U.S. 1 Dall. (1794).
So, why do jurors not know these things? The reason is simple: in Sparf v. United States (1895), the Court decided that courts need not inform jurors of their de facto right of jury nullification even though the jurors' inherent right to judge the law remains unchallenged. All judges are aware of this. Rather than inform juries of all their rights, judges tend to intimidate jurors by telling them that they cannot judge the law.
All of this is crucial to individual sovereignty and freedom because governments practice Legislative Absolutism (a term coined by Justice Harlan in 1901), passing laws without any regard for constitutions (Federal and State). Other than bringing suit in a court of law, the aggrieved citizen has no legal and peaceful recourse except to rely on jury nullification. Bringing suit usually is very expensive and time-consuming. Unfortunately, relying on jury nullification depends upon having a fully informed citizenry, and jurors with courage and integrity...therefore, spread the word! We need fully informed juries.
