In 1782, Thomas Jefferson wrote in his tome, Notes on the State of Virginia, “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 division 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.”

This may seem like an antiquated statement, especially given our current state of affairs regarding unconstitutional laws, however the application of jury nullification is making its way back to the forefront.

Be sure to read Brent’s other recent articles on ballot access for third parties, free speech in schools and local currencies.

On June 18, 2012 Governor John Lynch of New Hampshire signed HB 146, which reads:

“In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

In other words, jurors have the right not only to be informed of jury nullification, but have the right to nullify a law if they have reason to believe the law itself is corrupt.

Even though the law does not go into effect until next January, jury nullification in New Hampshire has already occurred.

Besides those cases, jurors at times refused to convict perpetrators of the Alien and Sedition Act, the Fugitive Slave Act and alcohol prohibition laws.

Opponents of jury nullification fear this precedent will lead to anarchy.

As to be expected, I disagree with that since I believe it is a fallacious argument.

If We the People have a Constitution, then our rights should continue to foster the cause of liberty and strike down laws which violate that foundation, otherwise we will inadvertently give power to the tyranny of the majority.

The Fully Informed Jury Association (FIJA), who would probably agree with the aforementioned critique, is a group dedicating themselves to educate the American populace on the full powers of jurors, which includes the right to judge the merits of the law as well as the applications.

FIJA goes into further detail on how to protect citizens from abuses of power.

“The primary function of the Independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.

The Constitution guarantees you the right to trial by jury.  This means that government must bring its case before a jury of The People if government wants to deprive any person of life, liberty, or property.  Jurors can say no to government tyranny by refusing to convict.”

Currently FIJA bills have been introduced in Arizona, Alaska, Arkansas, California, Colorado, Connecticut, Georgia, Iowa, Louisiana, Massachusetts, Nevada, New York, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah and South Dakota.

With the decisions that have been rendered in New Hampshire and Minnesota, maybe it will unleash a trend in other states.

When the idea of jury nullification eventually becomes the norm (which may be wishful thinking) let’s hope caution is used by potential juries in order to prove the critics wrong.

For if discretion by jurors is not taken into consideration, then we could be on a slippery slope to this scenario:  ”Where morality is present, laws are unnecessary.  Without morality, laws are unenforceable.