Nullifying the Rule of Law; M. Pulliam

THEFREEMAN IDEASON UBER1Y Nullifyingthe Rule of Law by Mark S. Pulliam W hat do nineteenth-century anarchist Lysander Spooner,1 the O. J. legal defense team, some elements of the militia movement,2 the Los Angeles juries that failed to convict the Menendez brothers of murdering their parents and that acquitted the brutal assailants of Reginald Denny, and the activists who promote the idea of "fully informed juries"3 have in common? They all symbolize the notion that juries can and should refuse to heed the instruc tions given them by the trialjudge, and that jurors should instead follow their own con sciences and "nullify" those instructions by doing what they personally feel is just. Jury instructions are the applicable legal rules communicated to the jury by the trial judge. In virtually every jurisdiction, jurors take an oath at the beginningof the case that they will consider only the evidence pre sented and the instructions of the court. The "instructions" are, therefore, laws that so ciety has duly enacted through either the legislative process or the common law judi cial process. In either event, the laws derive legitimacy from our democratic political traditions.

As citizens, we may not agree with all the laws on the books, but in a system of representative government we are ~ound to follow them. It is inherent in the concept of the State that there will not be unanimity in all matters, but that the views of the majority will prevail. This "coercion" or Mr. Pulliam is an attorney in private practice in San Diego. "oppression" of the dissenting minority has long perturbed anarchist philosophers such as the aforementioned Spooner, who ob jected to the "social compact" rationale for the state as well as the institution of the jury. 4 Jury-power activists sometimes cite Spooner as a proponent of "jury nullifi cation," but he is best known for his more fundamental objection to constitutional gov ernment. On what basis do advocates of jury nul lification attempt to justify the lawlessness that ignoring the court's instructions en tails? Advocates advance two principal ex planations, neither of which is persuasive: (1) civil disobedience, or the moral right or obligation to resist enforcement of an unjust law,5 and (2) populist opposition to tyran nical actions by an unresponsive govern ment.6 Let's consider these explanations.

Civil Disobedience Civil disobedience is a misnomer in the context of a seated juror refusing to follow the law. Civildisobedience, properly under stood, is resistance to unjust government action as a last resort-when disobedience is the only alternative to becoming a partic ipant in an objectionable act. This willnever be the case with a seated juror. A potential juror who obje.ctedto service could refuse to report to court or serve on a jury. A person with a moral objection to enforcing a par ticular law (say, punishing a defendant charged with private drug use or blockading abortion clinics) could disclose that objec160 The Foundation for Economic Education Irvington-on-Hudson, New York 10533 Tel. (914) 591-7230 Fax (914) 591-8910 E-mail: freeman@westnet.com March 1996 Looking Back W hen Leonard Read, a Chamber of Commerce executive from Los Angeles, set out to launch The Foundation for Economic Education in March of 1946, the world was facing tremendous problems of readjustment and recovery from the upheavals of World War II. The country was suffering from persis tent, ugly confrontation between labor and management, from vacillating governmen tal policies on price controls, and incredi ble food shortages resulting from the price controls over meat, sugar, and cereaL For most of the year the Office of Price Administration (OPA) was controlling more than four-fifths of industrial produc tion through its 68,000 inspectors and agents. And thousands of businessmen were facing criminal charges in the courts and press for having violated OPA orders.

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tion during voir dire and be excused from serving in the case. But, after ajuror has reported for service, been screened through voir dire, been seated and sworn to follow the law accord ing to the instructions of the court, there is no room for "civil disobedience." Ajuror reneging on his oath is an outlaw, a scofflaw. A renegade juror cheats the parties to the case out of their right to have the matter decided according to the law, on the basis of which the evidence and arguments have been presented. Despite proponents' fondness of quoting Henry David Thoreau on civil disobedi ence,7 a lawless juror is no more heroic than a rogue policeman violating the law or a politician accepting a bribe. Ifajuror (or any other member of the political community) feels that a particular law is unjust-and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust-the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

Populist Opposition The other frequently cited justification for jury nullification-the need to rein in abu sive government poweris even more spe cious. An honest anarchist such as Lysander Spooner would refuse to serve on a jury because he wouldn't believe in the concept of mandatory jury service or even governmental proceedings to enforce the law. Let's not forget that a trial, whether civil or criminal, is government action. En forcing democratically enacted laws is one of the basic purposes of government. When a juror considers defying his oath and de ciding a case based on his personal feelings rather than the court's instructions, the alternative is not between liberty and coer cion, but between coercion informed by the rule of law and coercion at the whim of 12 jurors. And what is a jury acting outside of the law but a 12-person mob, like modern-day vigilantes? Although the jury-power activ161 ists point to historical events where juries refused to enforce the Fugitive Slave Act,8 there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily "nullify" the instructions by convicting a person who was technically innocent. More over, there are no counterparts to the Fu gitive Slave Law in a civil case. Further more, nullifying the law strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a jury that has rejected the law.

It disturbs me to see libertarians and conservatives-whom I generally regard as allies-embrace the jury nullificationcause. The rule of law is essential to the preserva tion of liberty. Friedrich Hayek, perhaps this century's preeminent theorist of clas sicalliberalism-the political philosophy of freedom-believed that the defining char acteristic of a free society is the rule of law, meaning legal rules stated in advance, uni formly applied, without excessive discre tion.9 In Hayek's words: "[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free." 10 Thus, it is the universal, non-selective nature of law that allows us to be free.! 1 In Hayek's view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case "that it can be said that laws and not men rule. "12 Jury-activist pamphle teers in front of the courthouse would do well to heed Hayek's admonition that "few beliefs have been more destructive of the respect for the rules of law and of morals than the idea that a rule is binding only if the beneficial effect of observing it in the par ticular instance can be recognized." 13 Yet that is exactly what advocates ofjury nullification espouse-following the law only if they agree with it in a particular case.

I am not unsympathetic to concerns about unjust laws and government overreaching. The solution is grassroots political activism and reforms such as fewer federal mandates 162 THE FREEMAN • MARCH 1996 and expanded use of the initiative and recall devices, not shortsighted demagoguery in the form ofjury nullification. Jurors ignoring the law accomplish nothing but anarchy in a microcosm-nullifying the rule of law. 0 1. Lysander Spooner, An Essay on the Trial By Jury (1852). 2. "Militias Are Joining Jury-Power Activists to Fight Government," Wall Street Journal (May 25, 1995), p. Al (hereinafter "Militias"). 3. Ibid. Why It Matters by Roger M. Clites L ast November people in Quebec voted on whether to secede from Canada. Before the vote took place there was spec ulation in both Canada and the United States about how much harm such a pullout would do to Canada, to the United States, and to Quebec itself. With only one exception every opinion that I saw was that secession would harm all of them. In a short article two graduate students did make the case that Quebec would benefit from breaking away.