One of the little-known rights of any jurist is the right to refuse to convict an individual for a law they feel is either unjust or unfairly applied. Such a process is known as jury nullification and has been around longer than the Constitution itself. Perhaps one of the most famous cases is that of John Peter Zenger, who in November of 1734 was arrested for seditious libel against his Majesty¡s governmentŒ for printing articles deeply critical of New York colonial rule. When finally brought to trial in August of 1735, Zenger admitted printing the articles but argued that they were factually correct, thus justifying their publication. The judge instructed the jury in this case that as Zenger had admitted the factŒ of the case; only the matter of the lawŒ remained. As the issue of lawŒ was for the court to determine (and not the jury), the judge ordered the jury to find Zenger guilty. A mere ten minutes later, the jury repudiated this idea, disregarding the judge¡s instructions and finding Zenger not guilty.

Such a power of the jurist is fundamentally enshrined in the Constitution in the Sixth Amendment, which guarantees an individual accused of a crime the right to a trial by an impartial jury of one¡s peers. What is fundamentally important to a trial by jury is not simply the fact that an individual receives an impartial trial for any criminal offense, but in the fact that this same jury of ordinary citizens composes the last check upon tyranny of the state inflicted through unjust laws or inapplicable laws being enforced. It is this belief in a citizen check upon state power which compelled the Founding Fathers to include this among the rights enumerated in the Constitution.

In most cases, however, an accused individual is not allowed to make the argument to a jury that the law itself is in question rather than the facts at hand. An amendment to South Dakota¡s state constitution seeks to change this; Amendment A, as it is called, would add the following wording to the state constitution under the rights of the accused: and to argue the merits, validity, and applicability of the law, including the sentencing laws.Œ The unambiguously worded amendment would inject a modicum of common sense into cases where the law is either unjust or being misused.

Naturally, the proposed amendment is not without its detractors. Among them are the South Dakota State Bar Association, whose president Mike Day decries the amendment on the grounds that, A juror who would refuse to enforce the law has no greater claim to knowledge of what is moral or just than our elected legislators or our appointed judges.Œ Yet what such opponents fail to realize are the genuinely sound cases where jurors are forced to uphold laws they see as unjust. For instance, would Mr. Day force a jury to enforce the fugitive slave laws of the antebellum South, thus making jurors return fugitive slaves to their owners even if they felt slavery was immoral and unjust? What of the Jim Crow laws ¢ should jurors be required to enforce provisions such as these as well? Or perhaps more recently would be the case of a Pierre couple charged with a violation of child pornography laws for taking pictures of their baby in the tub, barred from informing the jury that such a law did not apply to family photographs. Surely it is not the will of a reasonable person to allow such gross miscarriages of justice such as this ¢ yet this is exactly what individuals like Mr. Day advocate by barring defendants from challenging the validity of the laws they are being charged under.

Detractors are naturally undeterred and even go so far as to ignore established precedent and make the case in a fevered pitch, individuals like former Chief Justice of the South Dakota Supreme Court Robert Miller, who said to the Boston Globe, It is a very offense to those of us who believe in constitutional form of government and common law.Œ He even went so far as to accuse the amendment of being unconstitutional.Œ Yet what Justice Miller overlooks are countless precedents upholding the right of juries to not enforce laws they feel are unjust ¢from US v. Dougherty (1973), which cited that a jury has unreviewable and irreversible power … to acquit in disregard to the instructions of the law given by the judge …Œ to U.S. v. Moylan (1969) which asserted, If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.Œ Even Sparf vs. U.S. (1895), the standing Supreme Court precedent on the matter, asserts that while juries do not need to be informed of their right to ignore a judge¡s instructions as to the law, they retain the right to do so. Thus, the matter is not a question of constitutionality but rather one of the basic trust we put into the citizens who become our judges.

What the critics of Amendment A prey upon is the idea that jurors will be too gullible or credulous of defendants if explicitly allowed to consider arguments concerning the validity of application of the law. Yet if jurors cannot even be trusted to evaluate whether the law itself is being justly applied, how then can they be trusted with such enormous responsibility as capital cases in which they ultimately determine whether a person will be put to death or go free?

Simply put, the right of a jury to refuse to enforce an unjust or unfairly applied law is a cornerstone of freedom in America, one which allows the individual citizen to act as a final check upon intrusions of liberty by all three branches of government. For a jury to defend fellow citizens against unjust application of laws isn¡t a threat to our nation¡s freedom, but rather a guarantee that we will remain free.

Steve

Skutnik

is a graduate student in nuclear physics from Ames.