Columnist: “1-1 = 0” • Greg Morin
Parental responsibilities and authority have well understood boundaries even though no formal written contract exists between parent and child. It is wholly non-controversial that any parent exceeding such boundaries should have their authority curtailed if not entirely rescinded. It is then a rather curious circumstance that when government, whose duties and authorities are clearly articulated in written forms (constitutions, charters, etc.), exceeds its legitimate authority it is considered nearly an act of treason to merely point out that its actions fall outside the scope of its authority.
Representative democracy (e.g. a republican form of government) is relatively insensitive to the will of the people insofar as the representatives are not obligated to act in every circumstance as would the people. This can be beneficial in tempering a mob mentality toward governance (tyranny of the majority), however that benefit can easily become a liability when rent-seeking special interests co-opt and corrupt the system (tyranny of the minority).
There does at least remain one avenue by which the people can expediently and directly make their voice heard: jury nullification. It is the final arrow in the people’s quiver against a tyrannical government. Georgia House Bill 25 (“Fully Informed Jury Action of 2013”) has recently been introduced into the Georgia state legislature. It would protect the right of the defense in a trial to build a case on the grounds of illegitimacy of the law in question. Jury nullification is already a de facto right of juries (in that jurors are not required to disclose their reasoning thus one is always free to rule based on their conscience). However judges (and prosecutors) typically prefer that jurors remain ignorant of this right as they feel the interpretation and application of “law” is their sole domain and that jurors’ only responsibility is to answer questions of fact (“did he do it or not?”). Judges will often outright prohibit any mentioning of nullification lest a mistrial be declared. House Bill 25 would end such prohibitions. This is a uniquely powerful check on government power insofar as juries are composed of one’s peers, not distant bureaucrats or politicians. If the citizens who voted in the politicians do not agree with what they are doing they have the right nullify what they are doing now as there is no guarantee that future voting will undo the harm that has been wrought. Just as jury nullification (and state nullification) was used to ignore unjust and illegitimate laws like the Fugitive Slave Law of the 1850s, it may also be used today to ignore similarly illegitimate laws related to drugs, unpasteurized milk sales, and similar victimless “crimes.”
Government is established when sovereign individuals convey certain rights to their local state government (while retaining all non-conveyed rights to themselves). Likewise the federal government was established when the states granted the federal government certain “powers” (see 10th Amendment to the U.S. Constitution) while retaining all others not specifically conveyed. So, just as the individual can nullify certain state laws based on a breach of authority so too can the states nullify federal laws on a breach of constitutional authority. To argue that jury or state nullification is invalid is to argue that it is better that some be made the victims of immoral and unjust laws rather than sacrifice the appearance of unity of the polity.
I shall address next week several of the common objections to nullification. Stay tuned…
Greg Morin is a member of the Libertarian party and CEO of Seachem Laboratories located in Madison. Constructive comments are welcomed to this paper or at gregmorin.com
Printed in the March 7, 2013 edition