Posted on 05/18/2009 9:41:14 AM PDT by fightinbluhen51
The Constitution of the United States is the supreme law of the land. Any judicial decree which would be contrary to the Constitution is void.
BTW, I would love to see a lawyer question jurors "Will you regard the text of the Constitution of the United States as the supreme law of the land, all other statutes and judicial decrees notwithstanding?" I'm sure most judges would fabricate some excuse to cite such a lawyer for contempt, but I see no way such a question would not be legitimate without acknowledging a desire for jurors to act illegitimately (contrary to the Constitution).
I agree. And a hung jury might be the best that can be hoped for. But that can be helpful, first by not convicting the person in question, and by saving another down the road by swamping the system.
What we must do is enlarge the pool of others willing to nullify in cases where conservative causes are at stake. We must be willing to play dirty like the other side. Participation along with liberals to convict people of bad laws is idiocy.
An alternate choice is to have enough people in the general population unwilling to convict so that every jury will be a hung jury. Eventually the government just gives up prosecuting in those cases. The only law I can think of off the top of my head like that were the fugitive slave acts in the North before the Civil War. There were enough abolitionists around that it was hard to find twelve men for a jury without one or two guaranteed to vote not guilty no matter what.
I've been called for three juries. One the first they got the 12 plus alternates before they got to me. On the second, the jurors felt the prosecutor overcharged by going for a felony on what should probably have been a misdemeanor. We were instructed to just judge the facts, not the law, and to not consider the punishment. Once we got back to the jury room the first question was "the defendant can get a year in jail for that?" Combining that with a weak case to begin with and we came back 12-0 not guilty.
On the third jury we were asked in voir dire if anyone heard about jury nullification. I raised my hand and the prosecutor asked me what I knew. I told him that it was the duty (I didn't say right) of the jury to judge both the facts and the law. I went into further detail, but was stopped before I got to the Penn case and English common law (By the time I raised my hand I figured I was going home anyway, so I figured I might as well educate the remaining jurors). The prosecutor made a smartass remark that maybe I was on the wrong side of the rail. When the 12 jurors who were picked were announced I wasn't on it. What a surprise. The case was about someone taking a swing at some government official on his doorstep, so I didn't see it as a major rights case where nullification might matter. If it had been a 2nd amendment case, I hope that I would have been able to keep my hand down or at least give a much less definitive answer about what jury nullification was.
What "judicial decree"? We're talking about your juror's oath to judge a case on the law as written and the facts in evidence.
Do you mean to say that an oath to do those things is against the Constitution?
BTW, I would love to see a lawyer question jurors "Will you regard the text of the Constitution of the United States as the supreme law of the land, all other statutes and judicial decrees notwithstanding?"
Are you comfortable with 12 random people making that judgment? Do you think they know the Constitution well enough to say one way or the other?
I'm sure most judges would fabricate some excuse to cite such a lawyer for contempt, but I see no way such a question would not be legitimate without acknowledging a desire for jurors to act illegitimately (contrary to the Constitution).
Sounds like you're certain that the whole orchestra is out of tune, except for you.
In major cases, both sides pay very expensive consultants to learn all they can about each juror, and learn they do, down to the minutest detail.
You just say yes, i can be fair. Then go in the jury room and make a conviction iompossible.
If you make it through the process, that is excellent advice. The fact that there seem to be more hung juries over the past few years might indicate that more people are taking that advice. However, be careful what you wish for; it definitely can cut both ways.
Look up "Bronx Jury."
If there would be any conflict between doing such things and the Constitution, then yes. Such conflicts may not exist in general, but certainly could exist in specific cases.
Are you comfortable with 12 random people making that judgment? Do you think they know the Constitution well enough to say one way or the other?
The Constitution is neither long nor complex. What are long and complex are the illegitimate rationalizations used by violators to justify their actions.
OK, so if you decide there's a conflict, and that it would be unconstitutional for you to keep your juror's oath, do you go ahead and take that sacred oath, with the full intention of breaking it?
Or, in other words, your personal determination that a law is unconstitutional then gives you license to raise your right hand and lie to the judge, in the name of God?
The Constitution is neither long nor complex. What are long and complex are the illegitimate rationalizations used by violators to justify their actions.
You didn't answer my question.
Here it is again:
Are you comfortable with 12 random people making that judgment? Do you think they know the Constitution well enough to say one way or the other?
It is not up to a juror to decide whether a law is unconstitutional. That isn’t what jury nullification is all about anyway.Jury nullification is supposed to be about restorative justice, thwarting the system because the system is unjust in the minds of the certain people. They feel that although the in reality, the accused may be guilty, that since others have paid a price unjustly, they will let the present guilty person off instead. According to the meta narrative of restorative justice and liberation theology, a member of a minority cannot be held guilty of any crime under the system except failing to rebel against the white capitalist system.
I understand that, thank you.
But courts aren't about justice; they're about the law.
Justice should be the consideration at the time the law is created and enacted. But in order for it to be applied fairly and evenly, courts should rule on facts and the law as written, not "justice". That word means vastly different things to different people, so both judges and jurors go FAR astray of their proper authority when they try to administer "justice".
Yes, exactly. That’s why I don’t support jury nullification. I support jury nullification for restorative justice, and I don’t support it in the case of second amendment rights. There is a place and a system in place to challenge unconstitutional laws. If we abuse that system, we are no better than the post modernist liberals who seek to destroy the Constitution.
If one takes the oath prior to the government's presentation of its case, how could one know whether or not the government would act lawfully?
All citizens have a duty to uphold the Constitution. Naturalized citizens and members of the military are bound by oath; other citizens are not bound by oath but still have such a duty.
Are you comfortable with 12 random people making that judgment? Do you think they know the Constitution well enough to say one way or the other?
On some issues, no. On some other issues, however, I would expect judges to be wrong most of the time, and jurors should serve as a backstop.
For example, the Fourth Amendment explicitly forbids unreasonable searches and seizures. To be legitimate, a search must be conducted in reasonable fashion. A typical judge, asked if a search is "reasonable", will look at whether anyone has managed to rationalize as reasonable any sort of search vaguely similar to the one at hand. An ordinary citizen, on the other hand, would be more likely to simply look at whether the search was in fact reasonable.
To be sure, there won't always be agreement about what's reasonable, but some cops engage in conduct which may vaguely resemble "reasonable" behavior but is nonetheless clearly unreasonable. Jurors, if allowed the chance, might correctly recognize that sometimes the cops are the robbers.
Where does the Constitution give you the authority to decide what "lawful" means?
On some issues, no. On some other issues, however, I would expect judges to be wrong most of the time, and jurors should serve as a backstop.
"Judges" wrong "most of the time", huh? Just any ol' random judge, out of the thousands of courts in the country, and you can say with a straight face that you would "expect [him] to be wrong most of the time." depending on the subject.
Wow. I thought Barack Obama was arrogant!
I really hate the selection process, and it should be illegal, the way it is done. The only thing that should keep anyone from a jury is if they know someone involved in the case personally. Otherwise, the first 12 people (it is 12 isn’t it? I’ve never managed to serve, they always pass me over for some reason) should serve. Period.
“the selection process, and it should be illegal, the way it is done”
Basically it is illegal. There’s no way the framers intended that; it’s totally a way to subvert the process.
I agree, but it appears to be *legal* in the eyes of the current system. At least that’s what is routinely done. Of course, it comes back to most of our laws being written and passed by lawyers, which is a pretty incestuous practice, in my opinion.
The Constitution specifies what is lawful. If the government's actions are contrary to what the plain text of the Constitution requires, then the government's actions are not lawful. Courts have the authority to "fill in the gaps" in some places where there exist bona fide ambiguities in the law (though in criminal cases, due process requirements would generally require that ambiguities be interpreted toward the defendant) but they have no legitimate authority to insert their own judgment in places where a superior law would demand otherwise.
Suppose there is a jellybean-counting contest, and Al, Bob, Chuck, Dan, and Earl submit guesses of 67, 746, 747, 748, and 978, respectively. The jar contains 500 whole red jellybeans and half of a red jellybean, along with 246 whole blue jellybeans and half of a blue jellybean. Joe is the official jellybean-counter. If neither official rules nor previous practice dictate how partial jellybeans should be tallied, Joe would be within his authority to not count them, count them as whole jellybeans, or count them fractionally. Depending upon which policy Joe adopts, there could be 746, 747, and 748 jellybeans; either Bob, Chuck, or Dan could legitimately be declared the winner; absent evidence of bribery or other bias, everyone should accept the decision without complaint. If Joe were to decide that there were 48 or 987 jellybeans, however, absent something in the official rules, that would not make Al or Earl legitimate winners.
The question is one of authority. Where does the Constitution give you the authority to declare a law to be "unlawful"?
Allow me to illustrate: In professional sports events, such as basketball, there are specific officials who have been given authority to declare a move illegal for one reason or another. A referee may declare a foul, double-dribble, traveling, etc.
The actual RULES are written and everyone knows them. There's no question about those.
But who has the AUTHORITY to call fouls? Who has the whistle? Who wears the black and white stripes?
By contrast, would it be OK for one of the players to bring a whistle and call fouls (or other violations) while playing? No. And it's not because a rule is right or wrong, or a question of whether or not a violation occurred. Neither of those issues matters, because a player simply doesn't have that authority.
It's my contention that a juror does not--and SHOULD not--have the authority to interpret the law and declare one to be "unlawful" or un-Constitutional. That authority is EXPLICITLY and SPECIFICALLY granted to the courts, up to the Supreme Court.
A juror is not granted that authority when sworn in as an active juror. He is not given that authority by the Constitution. If we are to accept that a citizen can take upon himself authority as he sees fit, as long as he's really sure he's right, then our nation will be utter chaos in no time.
Further, imagine that a home plate umpire were to call every pitch "thrown" by X's pitcher a strike, even if it rolled across the plate, and call every pitch thrown by Y's pitcher a ball, even if it passed perfectly through the strike zone. Team Y bats first, and gets retired by nine consecutive pitches, all of which roll across the plate but are called strikes. Then team X gets 20 consecutive walks on 80 pitches right down the middle.
Would the principles of sportsmanship demand that the other officials and players honor the decision of the umpire? The official rules of baseball give him the absolute authority to declare whether or not each pitch went through the strike zone, and provide that there can be no legitimate challenge to his rulings. Nonetheless, I would suggest that good sportsmanship would require after awhile that players and officials should seek to undermine him.
If a pitch is down the middle, the first- or third-base umpires should rule that the batter swung at the ball, whether or not he did. The official responsible for calling games on account of weather should announce that there is a rainstorm that makes it impossible to continue the game, even if the sky is perfectly clear. The team which would be favored by the absurd rulings should seek to minimize any benefit received therefrom, and would show good sportsmanship if they were to forfeit the game in preference to receiving a clearly-unjust victory. If either team opts to forfeit, the official scorekeeper should regard the game as having been canceled.
Note that none of those remedies is provided for under the rules of baseball, and many of them would require officials to go against their prescribed duties. Nothing in the rules of baseball allows for a determination that an umpire is just plain unreasonable, and so there would be no particular time when anyone else should decide to take matters into his own hands. Nonetheless, the principles of good sportsmanship would demand that players and officials take action when it becomes clear to them that not only do they believe the home plate umpire is acting unreasonably, but they believe his actions are so patently unreasonable that no reasonable person could believe him to be acting reasonably.
Note that because the Constitution does not give judges' rulings supremacy over the Constitution itself (unlike the rules of baseball, which do give the home plate umpire's rulings supremacy), the threshold for overriding such rulings should perhaps be slightly lower than for overriding the home plate umpire. Any apparent anarchy which might result would be the fault of the judges who issued the unlawful rulings, rather than those who sought to undermine them.
On some subjects, yes. For example, please state the flaw in the following argument, referring only to the Constitution itself and not to any judicial rulings.
Per Amendment V, it is unlawful for the government to deliberately endanger or damage a person's life or property in any fashion that is not reasonably necessary to carry out its prescribed duties. The government and agents thereof thus have a legal duty to minimize any such risk or damage when carrying out their duties. This duty would apply to searches and seizures as well as anything else the government does.
Per Amendment IV, unreasonable searches and seizures are prohibited, period. For a search to be legitimate, it must be reasonable, which is to say that it must be undertaken in a fashion reasonably calculated to best achieve its objectives, including the minimization of risk or harm to persons and property. If a government agent conducts a search in a fashion that a reasonable person would regard as causing unnecessary risk or harm, such an agent is either violating the Fifth Amendment (if his objectives don't include minimizing harm) or the Fourth Amendment (for not making a reasonable effort to achieve his objectives).
Judges claim that a cop who knocks feebly on a door and announces himself, with no real effort to make himself heard, and who then bashes his way through the door sooner than anyone inside could be expected to open it, acts "reasonably". Such a claim is false, and judges have no authority to make it. The Constitution doesn't specify a minimum volume of announcement, or time between "announcing" and forcing entry. What it requires is that cops make reasonable effort to minimize risk or damage to people or their property. Since the nature of such effort will vary from case to case, the question of whether sufficient reasonable effort has been made in any particular case is a matter of fact, not law. As such, despite judges' efforts to usurp authority on that issue, the matter is one which juries have a right and duty to decide (judges may legitimately determine that a particular cop's actions are so patently unreasonable that the jury shouldn't even see evidence gathered by the cop, but juries retain the right and duty to disregard for themselves evidence gathered in unreasonable fashion even when the mode of gathering is not so patently unreasonable as to justify judicial suppression).
Do you then claim that it DOES give the opinion of a juror (or jurors) supremacy over the written law?
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