It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [114]
The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.4
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In other words, in light of the content of the newspaper’s articles, the Chief Justice all but commanded the jury to return a guilty verdict. More fundamentally, however, these instructions highlight not just the potential biases of judges, but how juries will oftentimes be more faithful to the Natural Law and its principles of justice, rather than simply whatever is customary and dictated by precedent.
This crucial protection provided by juries has parallels in other political institutions as well, what I will collectively refer to as tripartite nullification. In addition to jury nullification of state prosecutors, the states retained the power to nullify the unconstitutional behavior of the federal government. Under this concept, states are obligated to refrain from enforcing unconstitutional federal laws. Third, individuals should have the right to withdraw their consent to state and local governments, in effect nullifying governmental actions taken in violation of their natural rights. This tripartite nullification should sound familiar: It is, in essence, checks and balances as between federal, state, and local governments, and the people themselves. What would happen if checks and balances were wholly eliminated at the federal level of government, that is, the Supreme Court could no longer strike down laws as unconstitutional, the president himself could declare war, and Congress could pass any legislation without fear of an executive veto or a judicial invalidation? Government would expand even further than it has already. Tripartite nullification is just as essential to keeping government within its proper scope. Sadly, however, it has been wholly ignored.
As an example, consider how the crucial right to jury trials in criminal proceedings has come under attack. Currently, defendants in the juvenile justice system are not given a constitutional right to a jury trial. Nonetheless, findings of guilt as a juvenile can be used to elevate sentences for later convictions as an adult. This is a particularly troubling concern given the recent proliferation of three-strikes laws, which provide for drastically elevated sentences if the defendant has a past criminal record. Thus, those who received prior convictions in juvenile courts without a jury are to be punished the same as those who received those prior convictions in adult criminal courts. Lest one dismiss this difference as trivial, it is worth noting that racial and socioeconomic biases have been well documented amongst juvenile court judges, thus creating a risk that a child discriminated against in juvenile court could receive fifteen more years in prison later in life than if he had access to a jury and all of its crucial protections.5
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The history of American freedom is, in no small measure, the history of procedure.
—JUSTICE FELIX FRANKFURTER
Sadly, we live in a society today that has forgotten the lessons of the Zenger trial, and decries the granting of due process to certain persons more than their deprivation to others. Many question the principles espoused in this chapter by challenging: Why is it that we have to give “terrorists” the same rights that upstanding American citizens enjoy? Why should “murderers” receive the dignity of a trial and a jury? Moreover, this stance so often dovetails