In order to have an effective Constitution,
there needs to be a process for determining whether or not its requirements have been
met, or if it’s limitations have been exceeded. This inevitably leads to the controversy of
the Ultimate Arbiter. Is there one Ultimate Arbiter of the Constitution whose word is
the final say? And if so, who is it? Let’s start by asking the question, “Who
can decide if an act is unconstitutional?” We’ll look at the three branches, starting
with the Legislative branch. Certainly if a new act is under debate, the legislators
can determine for themselves if it violates the Constitution, If so, they can vote against
it. They can also review laws already on the books
if they wish, and if they find them to be unconstitutional they can repeal them.
No one disputes the power of Congress to do this, although they hardly do it at all anymore. The Judicial Branch is generally where the
decisions of Constitutionality are made, and particularly in the Supreme Court. Article
III gives the Supreme Court and its lower courts jurisdiction in all cases arising under
the Constitution, so they can absolutely knock down any law in any case before them as being
unconstitutional. It doesn’t get removed from the books, but prosecutors know that
trying to prosecute them is a lost cause. The first case where this was determined was
in Marbury vs. Madison in 1803. It happened after the lame duck Adams administration tried
to stymie the incoming administration by appointing 16 circuit judges and 42 justices of the peace
loyal to him and not Jefferson. Not all of the appointments were delivered by the time
Adams left office, and Jefferson ordered his executives not to deliver them.
William Marbury, one of the appointees who was stopped from taking office, sued secretary
of state James Madison—and lost because the case law he was depending on was found
to be unconstitutional. The court ruled: “If both the law and the
constitution apply to a particular case,…the constitution is superior to any ordinary act
of the legislature; the constitution, and not such ordinary act, must govern the case
to which they both apply.” This means that the courts have not only the
power, but also the obligation to strike down any law in abeyance of the Constitution. But what of the executive branch? Does the
President have the authority to decide for himself if a particular law violates the Constitution?
If so, is he obligated to refuse to execute the law? Or is he obligated to follow all
laws passed by Congress, without the ability to decide on their constitutionality absent
a Federal court decision? Let’s look at the words of Supreme Court
Justice Joseph Story in his Commentaries on the Constitution: “Whenever any question
arises, as to the exercise of any power by any of these functionaries, such functionaries
must, in the first instance, decide upon the constitutionality of the exercise of such
power. The officers of each of these departments are equally bound by their oaths of office
to support the constitution of the United States, and are therefore conscientiously
bound to abstain from all acts, which are inconsistent with it. If, for instance, the
president is required to do any act, he is not only authorized, but required, to decide
for himself, whether, consistently with his constitutional duties, he can do the act.”
So the President, like the Supreme Court, not only has the power to refuse to execute
bad laws, he also has the obligation to refuse to do so. Okay, so any functionary, the President or
whoever, has to make the decision at the time as to whether or not his act contravenes the
Constitution. But this hasn’t really helped us determine who the Ultimate Arbiter is.
Who has the final word? To try and find the answer, let’s go through
the process the government must go through in order to convict someone. In the first place, a law must be passed.
No one can be prosecuted for breaking a law that doesn’t exist. As we saw in Lecture
3, Congress absolutely has the ability to not pass any law, or repeal any existing law,
they determine to be unconstitutional. But let’s say they don’t. Let’s also say that this particular law
has been upheld by the Supreme Court. There was a case some years ago, and the court found
it constitutional. Now a citizen is arrested for violating this
law. In order for this to happen, the arresting officer, who swears a constitutional oath
just like everyone else in government, must be satisfied that the law does not violate
the Constitution. Likewise, the prosecutor, having sworn the same oath, must feel that
the law is not contrary to the Constitution. But what if the prosecutor brings the person
into court anyway? Then it goes to a trial by jury. The defense
might be able to get the case thrown out on Constitutional grounds before it goes to trial—that’s
the right of the writ of habeas corpus, the foundation for all our other rights—but
if that doesn’t happen, all of the evidence is presented to the jury and it is in their
hands. Despite the fact that prosecutors claim to
represent the people, it is really the juries who do. The prosecution represents the government.
In order to put someone in jail, you have to run it by a jury of the defendant’s peers—the
representatives of the people—before you can lock him up.
Can the jury make the decision as to whether or not the law the defendant is accused of
breaking violates the Constitution? Or is the jury helpless in this regard, stuck with
whatever the judge instructs them? The idea that the jury can decide that the
law is wrong and vote to acquit a defendant anyway is called “Jury Nullification,”
and it has an old and honorable history going back before the founding of our country. Probably the earliest trial that established
Jury Nullification was when William Penn was arrested for preaching the Quaker religion
in 1670. His trial was presided over by the Lord Mayor of the City of London, who pressured
the jury to convict. When they acquitted Penn, the Lord Mayor threw them in jail for contempt.
They went without food, water, or access to toilet facilities for four days, but never
relented. Finally, the Lord Mayor had no choice but to let Penn and the Jurors go.
This set two important precedents: 1) that an acquittal from a jury cannot be overturned,
and 2) a jury cannot be punished for delivering a verdict the judge doesn’t like. Their
word is the last word, in that particular case. Of course, a jury verdict only applies to
that one case, but a pattern of jury nullification can have lasting effects. In 1734, newspaper
editor John Peter Zenger was arrested for seditious libel after printing an article
critical of the Governor of New York. At this point, truth was not considered to be a defense
to libel. His lawyer, Andrew Hamilton, convinced the jury that the law was wrong and Zenger
should not be faced with libel simply because he printed the truth. The jury agreed. This
set the ball rolling for a number of other instances of nullification of libel and slander,
and as a result, to this day truth as a defense to slander and libel is absolutely supported
in every court in America. Later on, American colonists such as John
Hancock were bypassing customs to avoid the Stamp Act. Jurors refused to convict them,
however, and this prompted the King to declare such matters under admiralty law, bypassing
the jury requirement. This is the reason for the trial by jury complaint in the Declaration
of Independence, and Hancock’s lawyer, John Adams, spoke most emphatically of the juror’s
ability to determine the legitimacy of the law.
At the time the Constitution was ratified, nullification was universally considered to
be a part of trial by jury. Remember from Lecture 2 that only an amendment can change
the meaning of the Constitution; the opinion of judges on nullification today doesn’t
matter. Juries still have this ability. It continued well into this country’s history.
Throughout the 1800s, jurors refused to convict runaway slaves and return them to their masters,
and they refused to convict those who helped them escape. The fugitive slave laws, allowed
by the Constitution at that time, had to keep being revised and strengthened as they faced
greater and greater opposition from juries. Slavery was ultimately repealed by the 13th
Amendment in 1865, but if it hadn’t been it seems clear that jury opposition to slavery
would only have grown stronger. Jury nullification continued in the labor
trials of the late 1800s. Workers who were mistreated by the big corporations that had
sprung up began to form unions and to strike. They were prosecuted under the law, but juries
refused to convict them. This is where the first salvo against jury
nullification was fired: in 1895, the Supreme Court, pressured by the large corporations,
ruled that courts no longer had to inform juries that they could veto an unjust law.
They didn’t have the power to remove the right of jury nullification, but they did
put a stop to the courts informing juries that they have this right. They also began
deliberately lying to the juries, saying that they may only consider the facts of the case
and not the law—in abeyance of centuries of precedent. They also stop defense lawyers
who try to inform juries of this right. Nonetheless, jury nullification continued.
During Prohibition, juries kept refusing to convict people accused of selling or consuming
alcohol. This was a major contributing factor in the repeal of Prohibition.
And it hasn’t stopped there. It was used during the Vietnam War to stop the persecution
of protesters, and it is used today in states where medical marijuana is legal to prevent
Federal conviction of medical marijuana patients. But it doesn’t happen as often as it should,
as not only are juries misinformed, they are also being instructed to inform the judge
whenever a juror is arguing for nullification. But it still happens. Because for everything
they’ve done, they still cannot change the fact that an acquittal cannot be overturned,
and a jury cannot be punished for its verdict. That is the essence of Jury Nullificaion. What this means is, the ultimate arbiter is
the people. The voice of the people through juries has been used many times before and
during our country’s history to stop bad laws, and to stop the abuse of legitimate
laws. Not only that, but the power of the people
to change the Constitution through the process of amendment gives them one more weapon. An
amendment can clarify the people’s position on how the Constitution reads, or change the
meaning of the Constitution altogether. Once again, you now have information that
most American citizens lack, and even Constitutional Law attorneys and professors. They’ve spent
so long telling us that we’re helpless and have no recourse but to follow the law no
matter what it is, that we’ve come to believe it. And as long as we believe it, it’s true.
But the day we reject it, the day we realize that all legitimate power comes from the people,
is the day that we can begin to take our country back again.
Every tyrant lives in fear of the day the people realize that they are stronger than
he is, and that he only rules as long as they allow him to. We have more power as people
in this country than any country before us; it’s time we started wielding it for ourselves
again. Until next time, stay strong and be free.