Jury Nullification: Cornerstone of Freedom; R. Koopman

If our nation's founders were able to come back today and witness the instructions that judges lay upon the juries, they would react with horror at the emasculation of our once proud jury system. Indeed, it bears little resemblance to the system they established, precisely because its most essential ingreMr. Koopman is a freelance writer and busi nessman from Bozeman, Montana. dient-the individual, independent juror has largely disappeared. The juror is in structed to accept the letter of the law without question, and apply no moral judg ment to his decisions. To the nation's founders, today'sjury system would appear as nothing more than a ghost of its former self. They would wonder how we managed to stray so far from the original pattern they instituted and why, as a result, America has chosen to place her freedoms in such obvi ous peril. Our forefathers, it seems, under stood far better than we that for a nation to remain free, sovereign power must rest in the people themselves. They designed the jury system to act as a constant check on the excesses of government and the abuses of unjust law. Individual jurors acknowledged that they had not only the authority, but the moral responsibility to acquit just men who ran afoul of unjust law.

Throughout the history of our republic, there have been many instances of juries that stood firmly for justice in the face of illegitimate law. They commonly refused, 82 THE FREEMAN • FEBRUARY 1994 for example, to enforce the British Naviga tion Acts against the colonists and later, the Fugitive Slave Act against the abolitionists. American history would have been written much differently if the juries of the past functioned like the juries of the present. Sadly, a modern-day jury would toss those abolitionists in jail, not because we now believe in slavery, but because juries today are consistently misinformed from the bench about their essential role in securing justice, and are thus rendered impotent in the defense of freedom. They are instructed to determine the facts, apply the law, and go home. The "Fully Informed Jury" It is ironic, then, that proposals to require juries to be informed of their vested powers are characterized as "radicaL" There is nothing radical about recognizing the wis dom of our Founding Fathers and re establishing those sound principles of jus tice which we have allowed, through carelessness and neglect, to slip away. The so-called "fully informed jury" is at the bedrock of our republic.

It is important to recognize that this concept does not create any "new" powers, rights, or privileges. It merely asserts those jury powers and rights that have long ex isted. Simply stated, the proposal requires that juries once again be apprised of their inherent right to judge not only the facts of a case, but the law itself as it relates to that case. As a practical matter, fully informed ju ries would result in little or no change in the great majority of all jury decisions. But in the few cases where juries asserted them selves and to some degree judged the law itself, they would help both secure justice and maintain a free society. Over time, if juries consistently "nullified" certain stat utes by refusing to convict defendants, ju ries would be sending a powerful message to the legislative branch. The "sovereign" (the people) would have spoken, making an unjust law unenforceable and dramatically demonstrating that the law should be amended or repealed.

Jury nullification could also act some day as a vital defense against oppressive federal laws criminalizing behavior that is no crime. Consider if, for example, Congress voted to ban gun ownership. Ninety percent of those living in my home state of Montana would instantly become "law-breakers," yet none would be viewed by their neighbors as having committed any "crime." If Montana juries were informed of their true powers, it would be impossible to convict a Montanan who was simply exercising his Second Amendment rights. But this kind of check on abusive governmental power requires that juries be well informed. Of course, juries could refuse (and occa sionally have refused) to enforce just laws. But such cases are likely to be rare since most people agree on the government's basic duty to protect life, liberty, and prop erty. Once "informedjuries" started cleansing the system of unpopular and repressive laws, two changes would begin to take place among the people themselves. First, peo ple's respect for law itself (something that has declined in recent years, largely because of the mischief caused by so much bad law) would be regenerated. Second, people's moral senses would be sharpened by their increased individual responsibility to pre serve our freedoms. We would become, once again, a vigilant people, more keenly aware of the abuse of government power, jealous of our liberties, sensitive to the moral and philosophical prerequisites of freedom.

America's founders did not place their trust in a "professionalized" judiciary, con trolled by lawyers, judges, and organized interests that make their living from govern ment. They had a deep and abiding faith in the people themselves, and placed the ulti mate power of the courtroom in the citizens' hands. Isn't it time that we returned to this fundamental principle of our republic? D THEFREEMAN IDEASON LIBERTY THE UNSEEN COSTS OF FAMILY LEAVE by Robert A. Sirico, CSP Y oung women interviewing for jobs in the past year may have noticed poten tial employers looking carefully at their ring fingers. No, it's not an example of sexual harassment. Rather, employers are growing more skeptical of hiring (and promoting) young married women of childbearing age. Employers have long taken sex into ac count when hiring workers. The turnover rate for women is higher than for men, since a woman is more likely to leave her job to have a baby, or move when her spouse is transferred. Thus, companies were already less likely to hire and promote women.