Constitution Nullification: How Was It Done? (updated)

Over the holidays I received a number of solicitations for contributions to organizations purporting to be working for re-establishing the Constitution or, at least, restoring  it to something more closely resembling what it was ‘originally’, rather than what it supposedly is today. For example, here’s a clipping from a Heritage Foundation email:

Dear Dennis,

Time is running out.

Liberals are planning a big assault on conservative ideas in 2012. But with your urgent support, The Heritage Foundation can execute a swift, principled response.

Please consider making a tax-deductible contribution by midnight tonight to help Heritage stop the Left.

If President Obama and his liberal allies get their way, ObamaCare will remain in place . . . taxes will increase . . . dependence on government will grow . . . and the principles of the Constitution and our nation’s Founding will be discarded as irrelevant.

America’s future is on the line–which is why your gift by midnight tonight is so critical.

We need the support of every conservative as we enter this critical year. We need every available resource.

Help Heritage fulfill the Mandate of Liberty our Founders entrusted to us with your gift in the next few hours.

Thank you for standing for conservative principles as we prepare for the battles to come in 2012.

Tugs the heartstrings, doesn’t it? The message assumes that the recipient is already convinced that Heritage = Conservative = Constitutional Originalism. But I’m not quite so sure of that. Today I got the following in an American Spectator newsletter:

Political Hay
Obama vs. None of the Above
By on 1.5.12 @ 6:09AM

A vulnerable president will face an ambivalent GOP.

No matter how ineptly Barack Obama continues to govern, his chances of winning reelection remain strong. As the results from Iowa suggest, the GOP is too addled and divided to field a formidable and philosophically coherent opponent against him.

Say this at least for the Democrats: They have the sense to run nominees who actually support the platform of their party. This rudimentary task is too tricky for Republicans to perform. They haven’t been able to locate in over a generation a presidential nominee who supports theirs. George Bush Sr., Bob Dole, George Bush Jr., John McCain, and now Mitt Romney in all likelihood: this is a dismal roll call of nominees with little to no interest in the ostensible platform of the GOP.

cont’d. . .

Wow! This guy seems to think more like me — as well as many of my personal correspondents. However, I am of the opinion that Obama’s “ineptness” is more of a ruse than a case of the President and the rest of the ruling junta not knowing what the hell they’re doing. These people aren’t stupid, and they have managed to pull-the-wool over a substantial portion of the electorate’s eyes for quite some time. And where is all that gargantuan-deficit money going? Chicago mobsterism writ large, says I. In the word of that cowboy ex-Prez Dubya, don’t misunderestimate them.

And it doesn’t seem that any of the GOP establishment has any intention of downsizing anything let alone the federal government or any portion thereof — other than the U.S. Military, that is. Think we’d have a better chance of downsizing Michael Moore! And I’m still try to figure out how much downsizing Ronald Reagan actually did. Can anyone help me out with that?

Heritage has been around since 1973, yet Congress and the President recently had little compunction about essentially revising the post-Civil War posse comitatus statute prohibiting use of the military for ordinary, every-day law enforcement. Guess “terrorist activities” aren’t “ordinary, every-day”, and this certainly tears down any left over Jamie Gorelick wall remnants, though it’s a bit late for that. Habeus corpus for domestically domiciled U.S. citizens seems to have been thrown out along with the legislative bathwater as was described by an astonished Mr. Limbaugh.

News Flash! Now I’m informed that the “final” version of HR 1540 has provisions exempting U.S. Citizens and legal Resident Aliens from the arrest and detention provisions that caused the brouhaha in the first place. See this. What about the Senate version? This still begs the question as to why anyone wanted these powers in there in the first place. If that was, in fact, the case. I would find it helpful if the House and Senate leaders would come forward with some added reassurance. Joint, bi-partisan news conference anyone? They certainly shouldn’t have anything to hide, should they?

(Update: Please see Faux News Flash.)

Over on the administrative side of the ledger, President “O” has decided that he can’t/won’t wait for the Senate to debate/confirm his appointees, so he’s come up with the creative notion of “weekend recess” appointments. As the Church Lady would say, “How convenient!”

Heritage seems to be a bit behind the restoring-originalism power curve. And I have no notion as to whether or not they — or any of the other Talk-about-the-Constitution-but-unable-to-really-do-anything-about-it outfits — are actually aware of and understand the most serious omission by the Founders: that there is no written provision in the document itself stating that interpreting the Constitution was to be guided and bound by common law and common law principles. I don’t think it ever occurred to them that over time common law would end up but a ghost of its former self by its misuse and disuse through the legislative codification of everything, a judiciary bent on pleasing and immortalizing itself, and an executive enthusiastically pushing back against its boundaries just to see how much it can get away with. But that’s what we’ve had, my fellow citizens.

I’m sure there are readers hereof who are asking themselves, “Does this guy think he’s a Constitutional scholar?” No, I’m just a citizen who’s been studying such issues for the past ten years and who has slowly but inexorably come to a number of similarly disturbing conclusions regarding American politics, economics, foreign policy or whatever. You can get some notion of these here, here and here. But in this post, I’ll just throw out the Big One for your consideration: Jury Nullification. I know, I know, you may think this is just a bunch nonsense about letting rapists and murders go free to continue with their mischief and mayhem. Au contraire.

I recently came across a 2004 law review article (see excerpts below) that specifically analyzes the 1895 Supreme Court decision that essentially put jury nullification, at least at the federal court level, on ice. The article confirmed my personal conclusion that jury nullification, as part of the common law, was intended to be the citizen’s direct participatory involvement in government. Government was not originally intended to be solely representative. And juries were not originally intended to be solely finders of fact and have no say whatsoever in the meaning and intent of the law. Without jury nullification, Lincoln’s “. . .government of the people, by the people, and for the people. . .” loses any robust meaning. As a result, the citizenry no longer has a direct check on the abuses of power by government. That’s a major component of the problems we face today.

And as we have recently been all too painfully reminded, elections also have unintended consequences. And unless something truly revolutionary happens by this coming November, as I assume Mr. Neumayr is inclined to agree, the 2012 election will change little or nothing. And if you can’t trust your fellow citizens as jurors to knowledgeably and faithfully ensure justice, why trust them at the ballot box?


* * * * *

Temple University
Reviving Thomas Jefferson’s Jury: Sparf and Hansen v. United States Reconsidered Author: Donald M. Middlebrooks
Reviewed work Source: The American Journal of Legal History, Vol. 46, No. 4 (Oct., 2004), pp. 353-421
Published by: Temple University
Stable URL:


In Sparf and Hansen v. United States, the Supreme Court held that in the federal courts, a jury has no role in deciding the law, but rather must blindly follow the opinion of the law expressed by the trial judge. We have come to assume as unquestionable truth that juries are merely finders of fact that must accept the law as explained to them in jury instructions. This was not, however, always the case. Nor was it the original intent of the founding fathers.

To Jefferson, author of the American Declaration of Independence, the jury was the foundation of liberty. “I consider trial by jury,” he wrote, “as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” According to Jefferson, “it is necessary to introduce the people into every department of government …. Were I called upon to decide whether the people had best be omitted in the Legislature or Judicial department, I would say it is better to leave them out of the Legislature.”

To Jefferson “the juries [are] our judges of all fact, and of the law when they choose it.” In his view, there was no question as to who had the final word. In his Notes on the State of Virginia, Jefferson wrote:

If the question before [the magistrates] be a question of law only, they decide on it themselves; but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this diversion of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system.

The writings of Jefferson, John Adams, Alexander Hamilton, and other founders — Federalists and Anti-federalists alike — all support the belief in a jury responsible for deciding both fact and law. The jury was intended to be one of two constituent parts of the federal judiciary, providing a mechanism for popular control through a constantly changing, democratic check on permanent and professional judges. The holding in Sparf changed this and established the dichotomy we know today between triers of fact and those who decide questions of law.

This article will examine all of the Sparf case from the bloody disappearance of the second mate through the bludgeoning of the jury’s original place in our judicial system. Sparf was incorrectly decided. It is wrong on the facts and wrong on the law.


Recognition of the political rights of jurors is an important step towards reconstruction of the jury’s intended role in the Constitution’s division and decentralization of interpretive authority. As a check on government, the power of the criminal jury arguably has a stronger claim to legitimacy than does that of judges, because the jury’s interpretive supremacy is substantively conferred by the Constitution.


Edmund Burke said, “Bad laws are the worst sort of tyranny.” But bad laws expire or are repealed, especially in a democracy. This was the case with the seditious libel laws and the fugitive slave laws. A Supreme Court decision, however, particularly if old and unexamined, has an inertia of its own and, if left unquestioned, can have a grip that continues to bind.

Sparf was a bad decision. There was factual evidence that could have supported a lesser charge and the jury should have been allowed to consider that evidence. Sparf’s acquittal on remand stands as a stark reminder that Hansen’s similar involvement might not have warranted his death. The jury in Sparf showed no inclination to disobey or evade the law, it was the trial judge’s actions that were at issue. The Court reached to decide a question that did not need to be resolved.

More importantly, the Court failed to grasp that the statements of the founders about the jury were not revolutionary hyperbole, but rather part of a revolution in the way government should operate. The jury was to be part of the judicial branch, an essential cog in the system of checks and balances that allowed popular control of the American government.

Instead of the founders, Sparf’s holding is derived essentially from the opinions of four judges — Story, Curtis, Shaw, and Harlan — convinced of their own rectitude and the fiction of law divorced from politics. Story, Curtis, and Shaw thought preservation of the Union, as well as the economic prosperity of New England, depended upon their ability to enforce the laws of slavery.

Story’s treatises, teaching, and common law “science,” which operated more like a chain letter than any theory of constitutional interpretation, influenced Justice Harlan, who was already predisposed to the result by his own paternalistic formalism. The judicial lawmaking exhibited in Sparf has been largely rejected and its progeny, like Swift v. Tyson318 and Lochner v. New York,319 have been renounced. Sparf lingers on, but should join them in the dustbin of discredited decisions.

Attributing to the jury the responsibility of deciding both the law and the facts of the case is mostly about structure but, it is fair to say, to a significant degree is also about symbolism. For as Thomas Jefferson emphasized, juries will almost always accept with appreciation and respect the judge’s opinion as to the law. Moreover, a juror has no right to ignore the law. Like a president deciding how to implement the law, a prosecutor deciding whether to seek an indictment, or the judge deciding a sentence, the juror not only has a duty to follow the law but also a responsibility to bring reason, experience and an independent voice to its application.

Structure is important, however, because it brings the people into the judiciary. By limiting the role of the jury, the judiciary has given up some of its constitutional legitimacy. As the “myth” of the science of the law and judges applying its neutral principles in an apolitical manner has worn thin, the judiciary has come to be perceived as anti-democratic rather than, as Jefferson saw it, the branch where it was most important that the people serve. The jury should be restored to its position as a co-equal tribunal in a bicameral judiciary


Under the mandatory sentencing regime that now exists at the federal level, judges no longer have discretion to ensure that laws are fairly applied to particular defendants. Increasingly, that discretion has been shifted to prosecutors. With mandatory sentencing, the only constitutional check on government abuse or overreaching is the jury. If its verdict is to represent the moral force of the community, the jury must be permitted to do its job. As Learned Hand wrote, part of that task is to introduce “a slack into the enforcement of the law, tempering its rigor by the mollifying influence of current ethical standards.”

Not only is recognition of the jury’s authority significant to the handful of cases where it might be applied, but the symbolism alone is not unimportant. Judges and lawyers have elevated their own roles at the expense of the jury. Jurors are too often brought to the courthouse, forced to wait, only to be sent home when a defendant makes a last-minute plea or a civil case settles. Cases drag on too long at the convenience of the lawyers without regard to the disruption caused to the lives and business of jurors. Jury service is coming to be regarded as something to be avoided instead of an opportunity to participate in the exercise of freedom. Jurors should be treated by judges and lawyers as public officials fulfilling a constitutional role, not as a fact finding adjunct serving at their discretion and pleasure.

Every day in courtrooms across the country an instruction much like the following is given to a jury: “You must also follow the law as I explain it to you whether you agree with that law or not; and you must follow all of my instructions as a whole.” Imagine a jury composed of Thomas Jefferson, Alexander Hamilton, John Adams, and James Wilson. They would not have stood silent in the face of such an instruction, and neither should their rightful heirs. In Sparf & Hansen v. United States, the Supreme Court took a wrong turn. Its holding is an assault on constitutional government that should be reconsidered.

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