In doing so, however, the lawyer is attempting to ask this jury, and this county criminal court, to rule on the Constitutionality of this particular ordinance. This is a power that is reserved to the Federal judiciary.
As such, the judge was correct to rule that issues of Constitutional law cannot be brought up as a defense in this case. To rule any other way would be a usurpation of the Constitution.
Now that Stanley has apparently been convicted, he has every right to challenge the Constitutionality of this ordinance in the proper forum. I hope he wins, too.
But he'd be a horrible senator, and he will deservedly be trounced.
In doing so, however, the lawyer is attempting to ask this jury, and this county criminal court, to rule on the Constitutionality of this particular ordinance. This is a power that is reserved to the Federal judiciary.
Nope, the defendant is asking the jury to just read & consider the constitutional law as it may apply to his case. The judge is not required to 'rule'. He may give his opinion, at his option. -- And, --- the jury decision is not binding to any other case.
As such, the judge was correct to rule that issues of Constitutional law cannot be brought up as a defense in this case. To rule any other way would be a usurpation of the Constitution.
This 'usurpation' theory of yours should be good. Can you explain? -- Two bits you won't even try.
Now that Stanley has apparently been convicted, he has every right to challenge the Constitutionality of this ordinance in the proper forum. I hope he wins, too.
I wonder. -- See my Catch 22 for the odds on outcome of any 'challenge'.
What, the State is too big to be placed in the position of appellant?
Juries were given this power very specifically as a distribution of power and a check on both the Executive (the prosecutor) and the Legislature, based on considerations of Locke's consent theory. But if a jury is given the power to consent, and by consenting condemn a man, then the State must be prepared to abide contrariwise the withholding of that same Consent, for reasons best known to the People. Vox populi, vox Dei. Jury refusal to convict on the basis of unconstitutionality (as opposed to racist scalp-counting) is part of the phenomenon of non-consent and non-cooperation which is lumped together under the con law idiom of "materiality", which we might call practical effectiveness instead, which is actually part of the validation process by which laws, in a contractual society, obtain their reach and grasp. It is, so to speak, the acid test of a law. Madison referred to noncooperation and non-validation as "clogging", as a synonym for "conditioning" or "contingent requirement":
"The best informed apprehend some clog that will amount to a condition" (referring to what eventually became the Bill of Rights). (Letter from Jas. Madison to Edmund Randolph, July 16, 1788, in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787, Together with the Journal of the Federal Convention, Luther Martin's Letter, Yate's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution, ed. J. Elliot 1861).
Therefore the jury is one of the four "consensual gates" available to the People in the original Constitution, reserved by them as a check on Government. (See Elaine Scarry, "War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms", University of Pennsylvania Law Review, May 1991, p. 1276. (Cite is 139 U. Pa. L. Rev. 1257; on Lexis/Nexis, search "Scarry, Pennsylvania")
Thus the jury, like the voting public, gives what is called "perpetual consent" to the laws and their enforcement each time it renders a judgement. "Perpetual consent", which John Locke called "tacit consent", is a somewhat misleading term in that it actually means not "permanent" but rather "continuing" -- and it opens the possibility of nonconsent at any given moment. Therefore, the jury is empowered by a premeditated distribution of power (by the People, to themselves) to operate that one, transient gateway of perpetual consent, and if they want to consider the constitutionality of an ordinance, they may, expectations of the prosecutors and judges to the contrary absolutely notwithstanding.
Verdict: Reversible error, remand for new trial with prejudicial notice to the City for trying to stack the jury.
How say you?