In 1850 Spooner published A Defence for Fugitive Slaves, Against the Acts of Congress on February 12, 1793 and September 18, 1850, where he argued that juries “are judges of the law, as well as the fact” and are therefore justified in nullifying federal fugitive slave laws. “No man can be punished for resisting the execution of any law,” Spooner wrote, “unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional.” Today we call this radical approach “jury nullification.”
Two years later, in Trial by Jury, Spooner developed his argument in full, expertly tracing the right of jury nullification back to the Magna Carta. “It is indispensable that the people, or ‘the country,’ judge of and determine their own liberties against the government,” he wrote. “How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?” According to Spooner, it was essential to distinguish between trial by jury, which meant trial by the people, chosen by lot, and trial by government, which was an illegal usurpation of the people’s power. “If the government may decide who may, and who may not, be jurors,” he wrote, “it will of course select only its partisans, and those friendly to its measures.” Furthermore, he said, if the government had its way, it “may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial…and exclude him if he be found unfavorable to the maintenance of such a law.”
Of course, that’s exactly what happens today when potential jurors who oppose the death penalty are prevented from serving on death penalty cases or when those who oppose drug prohibition are excluded from drug cases, thereby stacking the jury in the government’s favor. As Spooner presciently observed, “if the government may dictate to the jury what laws they are to enforce, it is no longer a ‘trial by the country,’ but a trial by the government.”
Damon W. Root, “Clarence Thomas’ Favorite Anarchist: The radical anti-statism of Lysander Spooner”, Reason, 2010-09-16
September 16, 2010
QotD: Trial By Jury
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