Jury trials are such a common fixture of American life that few people give them a second thought. Article III, Section 3 of the United States Constitution, requiring that “The trial of all crimes…shall be by jury,” seems wholly normal. But it is not.
In other countries and in other times, jury trial has been reserved only for a few special circumstances. Civil cases, where citizens take one another to court for monetary damages, and criminal cases, where the government accuses a citizen of a public crime, are most generally decided by a single judge. Most of the world’s population will never be allowed to ask twelve fellow citizens for justice.
Contrast this to the Sixth Amendment in our Bill of Rights, which guarantees that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Seventh Amendment even extends this right to civil cases where the damages sought are greater than 20 dollars (about $525, adjusted for inflation).
These constitutional requirements make the American judicial system unique. We are out of step with the rest of the world, not because we are behind the times, but because even after 230 years the world has yet to catch up.
American insistence on trial by jury is the cornerstone of justice because it roots American justice in the common sense of the common citizen and stands opposed to every arbitrary and nonsensical law.
By definition, a jury has no training in legal theory and no vested interest in protecting bureaucratic powers. There is only one thing that a random selection of jurors can bring to a criminal or a civil trial. It brings its common sense. Each person, rich and poor, high school dropout and rocket scientist, is born with an internal sense of right and wrong.
The very fact that jury trials are ensconced in American law stands as a testimony that all laws are intended to be nothing more and nothing less than a written expression of that law written on every person’s heart. It is called the natural law.
Natural law is not created by societies, governments, or churches. It is not created at all, but discovered in the heart of humankind. It is the law that governs every quarrel from a toddler’s dispute over a toy to multi-billion-dollar corporate litigation.
The telltale sign of natural law is that both sides appeal to “fairness.” It has nothing to do with written laws, but with the sense of justice behind the written law. If the laws had been written in the opposite way, the sense of fairness would remain unchanged.
The opposite of natural law is positive law.
Positive law posits the idea that justice is whatever the lawmakers say it is. Instead of seeking to discover the timeless principles of justice, positive law attempts to create justice by fiat.
Positive law is much more efficient at handling disputes, but it doesn’t much care about anybody’s sense of justice. When two toddlers are quarrelling over a toy, positive law is like the parent who storms into the room and takes it away from one and gives it to the other.
The decision is made. The quarrel is forcibly ended. One side is happy and the other is not. But nobody believes that the decision was either just or unjust. It was just a decision.
Positive law is the tool of tyranny. It imposes order by power. It does not seek peace by justice. Trial by jury is America’s way of seeking peace, not just order. We want to be ruled by justice, not power.
All of this means that we are asking juries to let their internal sense of justice be the deciding factor — even if it runs contrary to the written, positive law. Legal scholars call this “jury nullification.” When a jury decides that a person has broken the written law, but that the written law is unjust, it has the right to nullify the written law in order to grant justice.
Legal scholars, together with two centuries of legal precedents, all agree that jurors have the power to do this. But this is the best kept secret of our modern judicial system. Jury nullification remains a highly controversial concept and defense lawyers are prohibited from telling jurors that they have this right.
People who deny any transcendent natural law — positive law theorist — will admit that juries have this power but assert that it is a mistake in the constitution that we need to fix. They assert that juries only have the right to decide matters of fact, but that they are forbidden from judging the law.
While this argument rages among scholars of the U.S. Constitution, Wyoming’s Constitution leaves no room for argument. It plainly states that jurors have the duty to judge both the facts and the law itself. Section 20 of Wyoming’s Declaration of Rights spells this out.
It says, “in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.”
Notice those broad, sweeping qualifiers. Not only when the government charges a citizen (criminal cases) but also when citizens take each other to court (civil cases), a jury — and not just a single judge — has the “right to determine the facts and the law.” Common, untrained citizens are charged by the Wyoming Constitution to decide not only if a person has violated the law, but also whether the law itself it just. That’s jury nullification.
Especially in matters of free speech, Wyoming is constituted to protect its citizens from arbitrary dictates of government power. Just because some governmental entity makes a law forbidding this or that speech does not make it just. Positive law that does not match up with natural law should not be followed.
It is as if Wyoming’s founders could foresee our day. We live in a cultural climate where statements of common sense are increasingly subject to fines, censure and other penalties. Businesses are fined hundreds of thousands of dollars. Charity organizations are shut down. Public employees are fired.
It’s not only First-Amendment rights that are being trampled, but other rights plainly recognized by the Bill of Rights as well. Time after time we see strange verdicts handed down by judges ruling from the bench and commissars appointed by partisan governors. They are only concerned with whether John Q. Citizen broke the law as written. They do not ask whether the law itself is just.
Justice is discovered, not created. If the law written in books is not true to the law written on the heart, it is unjust. Juries are given a prominent place in American justice because American justice rests upon natural law, not man-made laws.
Because we value a peaceful society and not just an orderly one, our judicial system must aim for justice and not merely lawfulness. The sooner we recognize and appreciate the power and wisdom of trial by jury, the sooner justice and peace will replace mere law and order.