‘We the People’ Have the Final Say on Same Sex Marriage – Not Judges
Building the Resistance to Same-Sex Marriage…
(thirteenth in a series of articles)
by Charles Key
Although it seems strange now, at the time of the nation’s founding, it was not uncommon for the U.S. Supreme Court to both conduct trials and hear appeals. In the very first jury trial conducted by the U.S. Supreme Court, State of Georgia vs. Brailsford, Chief Justice John Jay gave the following instructions to the jury:
“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
These instructions from the first Chief Justice of the United States, and a co-author of the Federalist Papers, demonstrates the historically correct role and power of juries. The Court did not grant to the jury the right to determine both the fact and that law, it simply recognized the juror’s right which it still has today.
However, today judges want to restrict juries to deciding matters of fact, and claim for themselves the final authority to decide matters of law. Persons have even been arrested for handing out literature near a courthouse explaining to potential jurors their true role and great power.
As many await the SCOTUS opinion on same-sex marriage, attention is increasingly directed to the ultimate source of power and authority in our American System of government – ‘We The People.’ As activist judges and courts continue to operate outside of their constitutionally limited role, the role that citizens serve, as jurors and electors, becomes more important and focused.
The power of the individual citizens is probably at its zenith when they serve on a jury. As jurors, they literally have the power to affect an individual’s life forever, including up to death. The Framers of our system of government viewed the jury as being of supreme importance in defending individual liberty against government abuse.
“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” Thomas Jefferson
There are only 14 words describing freedom of speech and freedom of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently — a total of three times — or has as many words devoted to it. It is clear, because of historical evidence, that the Founders viewed the jury as the most important institution, since it gave birth to and defended all other rights.
It should also be noted that trial by jury and jury rights were common law rights at the time of the drafting of our founding documents, the Declaration of Independence and the Constitution, and so are also included as rights retained by the people under the Tenth Amendment.
Juries, meet by the thousands each week and month all over the country. As such, they constitute one of the largest and most powerful agencies of law enforcement in the United States. They have the absolute — and permanent — power to ignore government laws, keep people out of prison, ignore judges and prosecutors, make the outcome of any jury trial what they want it to be, and try and keep our government honest. In the absence of overt wrongdoing, such as bribery, their decisions cannot be called into question.
The important vital role and power of the jury predates our Constitution. Since 1215, when the Magna Carta was signed, and throughout American history there has been no more fundamental principle of English or American constitutional law than the right to a jury trial. And in a jury trial, it is not only the right but the duty of juries to judge the facts of a case, the intent of the accused, and the law(s) being applied in the case.
It is also their right, and their duty, for jurors to judge whether the law is just, and to hold the law invalid if, in their opinion, it is unjust or oppressive, and to hold all persons innocent if they violated the law, or innocent for resisting the execution of such laws. This fact about the jury has been attacked in modern times by those who promote the “evolving constitution” viewpoint. This liberal philosophy turns on its head the concept of individual liberty and requires an elite political class to guide and direct the rest of society.
Even so, the court in modern times continues to recognize the broad role of the jury.
“The jury has an unreviewable and irreversible power to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.” U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972
“If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence.” United States v. Moylan, 4th Circuit Court of Appeals, 1969
The jury’s role is much more than just another check and balance in our system of government. America’s founders intended it to be the final political institution that would protect our rights from government abuse and encroachment.
“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Justice Byron White, Duncan v. Louisiana (1968)
“The purpose of a jury is to guard against the exercise of arbitrary power.” Justice Byron White, Taylor v. Louisiana (1975)
The duty of a juror to protect a defendant against abuse from the government was much better understood in colonial times than it is today. Consider the 1735 case of Peter Zenger in the colony of New York. Zenger was the publisher of the New York Weekly Journal and was tried for seditious libel for printing articles exposing the corruption of the royal governor. The Zenger case has been referred to as the most important trial in American history because the jury in this case established the rights of freedom of speech and of the press in America by nullifying the seditious libel law which made it a crime to criticize public officials. In the case, the judge proclaimed that truth was not a defense.
In acquitting Zenger, the jury exercised its right, power, and duty to nullify a law it believed to be immoral, unfair, and unjust. Andrew Hamilton, Zenger’s attorney, argued jury nullification directly to the jury and gave his opinion of the law to the jury in direct opposition to the instruction of the trial judge.
Today, a lawyer who told a jury the truth – that they have the power to disregard a grand jury indictment, the words of the prosecutor, and the instruction of the judge by acquitting a man they believed to be unworthy of punishment – would be charged with, and tried for, contempt of court.
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