Let's start with the premise shall we?
This nation was founded on the principle that the people have the final say in law-making.
Popular sovereignty, it's called.
Until we founded our nation, no nation reserved sovereignty in the people.
As to England, sovereignty resided in either King George, or Parliament, or some combination of king, commons and lords.
With us, WE, as in WE THE PEOPLE, the first three words of our Constitution, have the final say, sovereignty.
Is this true, or is it just B.S., theory that sounds good but doesn't really mean anything in law?
Like anything else, if we want it to be true, we have to work for it.
Otherwise it is taken from us like candy from a baby.
***
As a Con-Law prof, I deal in hypotheticals, to make a point. Here's a hypo:
President Bush has won the 2004 election and several vacancies arise on the Supreme Court.
Exercising his prerogative to nominate replacement justices with the advice and consent of the Senate, he names people from the list he's being compiling for the past four years.
Assume that these nominees are conservative. Assume that they are 'activist' conservative. Either 'radical' conservative, as some predict, or 'moderate' conservative as others, more optimistic, perhaps, predict. But activist; that is, willing to change the law to conform to their views as to how the nation ought to be.
Assume that conservative republicans in general, unlike Dick Cheney, don't share that view that women ought to be free to follow the dictates of their sexual identity.
Or the conservative ideology that prohibits choice as to whether to bear or beget children.
Something immoral about that, they may think.
Perhaps it offends God.
Or their notion of what God would like, forgetting for a momen that God provided us with the sexual impulses that result in surprise pregnancied, oh, say, every second of every minute of every hour of every day, world-wide.
And let's say that little Mary, the one who attended parochial school until she met Joe, the football star of the school, and, quite to their surprise, became pregnant and had an abortion.
Let's also say that at this very time, the Supreme Court, with its new conservative members, has repealed Roe v. Wade, or made this right to choose to have an abortion so difficult to obtain that it is meaningless.
Maybe little Mary has to provide her real name for the record and the record is going to be sent to the Health Department of the city in which she lives and her father works there, or is a police detective, or deputy DA who knows how to find out things.
And the doctor's name, the one who provided the abortion, is listed in the records, on little Mary's chart, also easily obtainable by any attorney who knows how to sign a subpena duces tecum, and we all know how to do that, don't we.
As a result the doctor who performed the abortion, now illegal, a crime in fact, is accused by the district attorney of the felony of inducing an abortion on little Mary.
He comes to trial.
YOU are his defense attorney.
You have no obvious defense.
Your client, the good doctor, in fact, is proud of the fact that he induced Mary's abortion simply because she asked.
She wasn't mature enough to support herself, much less a child. Joseph was still throwing footballs and wasn't able to support an infant. He couldn't even support himself.
Your doctor client turns down a deal offered by the district attorney to plead guilty to a felony, procuring an abortion on Mary, for probation and a condition of probation never to attend a pregnant female again.
He turns down the deal in order to take his chances on a jury trial.
But you have no defense, you tell him.
And you try the case.
Your defense is to ask the jury to disregard the law.
Jury nullification, it's called.
Just as Andrew Hamilton, the original Philadelphia lawyer, did in, Oh, about 1732 or 1737, in the criminal case against John Peter Zenger, the printer, in colonial New York City.
Zenger printed, in the newspaper he published, true stories about what a crook the governor was.
The governor had been appointed by the Crown, in this former Colony of New Amsterdam, renamed New York, since the British took it from the Dutch after one of their frequent wars in those days.
At the time, the truer the criminal libel was, the graver the offense of criminal defamation was.
Truth was not a defense.
Just the opposite.
It was an aggravating sentencing factor "under the Guidelines" as federal practitioners say today (meaning the judge's discretion, then), or a sentencing 'Enhancement,' as we say in California today.
Zenger was in big trouble. He was looking at prison when there was no central heating. You paid for your own food, too.
Andrew Hamilton (no known relation to Alexander Hamilton, 3/4 of a century later, who put the U.S. on a financial foundation that has stood the test of time) then did a wondrous thing.
He admitted, in open court, that his client, Mr. Zenger, had in fact published every word of the defamatory account regarding the governor, and, implicitly, that it just might be defamatory, if that's what the jurors thought.
Andrew Hamilton then asked the jury to disregard the judge's instruction that proof of publication of an allegedly defamatory statement was sufficient to convict. Because it was true, and everybody knew it, or ought to.
The prosecutor, Crown Counsel, had argued, correctly under the law, that publication of a defamatory statement alone was enough to convict, regardless of how truthful it might in fact be.
What would you do, if you were on the jury?
You are law students.
You are intelligent.
Sensitive to moral issues.
In your judgment did the truth of Zenger's assertion in his newspaper, that the governor was a crook, make the admittedly defamatory statement worse, or will you let Zenger off the hook because you think the truth is so important, as though you had never told a lie?
More to the point, will you disregard the law as given by the judge?
If you, as a juror, let Zenger off, you are disregarding the Court's instructions, and entering a lawless territory.
For if you, as juror or defense attorney disregard the judge's instructions, aren't you opening the door for the prosecutor to do the same?
Wouldn't we have lawless courts in which the passion of the moment decided who was convicted of crimes they may or may not have committed?
Is that the kind of country in which you wish to live? A lawless one, dependent for justice on the whim of twelve people whipsawed by cleverly arguing attorneys?
There's a difference between the power or ability to do something and the right to do it.
Hamilton was asking the jury to do what they could, not what they had a right to do. They had no right in existing (or positive) law to acquit. They must, under the law, convict.
Let's go back to your defense of little Mary's doctor, the one who aborted her fetus because that's what she wanted.
He, the doctor, performed the abortion. It could be a she, if you like.
He, or she, doesn't deny performing the abortion.
Doesn't even take the stand, perhaps.
Or if he or she does, admits the act, but tries to justifiy it on humane grounds from Mary's point of view, even though she didn't tell her father the police inspector or deputy districy attorney, if you'd like her father to be that.
Mary didn't even tell Joseph, who might have preferred, all things being equal, which they weren't, that Mary become the mother of his child, and rear the child, to whose support he would gladly contribute one day after he finished college and made the pro football team, for which he would be handsomely compensated and could afford a child.
There's only one defense you have left.
Jury nullification.
Because the new justices on the Bush appointed Supreme Court have overruled Roe v. Wade, leaving the way clear for each state to enact laws criminalizing abortion.
The duly elected President of the United States, with the advice and consent of the Republican majority of the Senate, despite filibuster of those liberal, abortion loving Democrats, has appointed conservative justices who have repealed Roe.
Your state legislature has, in turn, turned abortion from a constitutional right into a felony.
Your prosecutor is only following the law, as he or she is supposed to.
Your judge is only following the law, as he or she is supposed to.
Otherwise we'll have anarchy, she tells the jury.
If and when your client loses this jury trial, he, or she, will lose more than her license to practice medicine. THe good doctor, or bad, if you like, will go to prison. He turned down a favorable deal and put the state to the trouble and expense. Now the doctor will get no break for spairing the state the cost and trouble of trial. The doctor will get what the doctor deserves, if convicted.
When you lose a jury trial, taking the prosecutor to the mat in a spotlit case, let's say, your client is going to have to be made an example, to teach a lesson to other M.D.s who might be thinking of taking care of other little Maries.
In the old days, incidentally, the medical practice was for (male) doctors to be allowed to perform three abortions with impunity: one for the wife, one for the daughter, and one for the mistress. After that you were in trouble with the law.
We say that we have popular sovereignty in this country.
But if our legislaturea, our presidency, and our supreme court have fallen into the hands of, let's say, for example, the religious right, where can we turn when we have developed such an expectation of freedom, liberty, over the past three decades, that we think it our right to go to a doctor and receive, in clean, modern, hospital conditions, an abortion?
All we have left is our jury.
Our community.
The conscience of the community.
Ask the jury to use their conscience.
To obey a higher law.
As though we might have liked to spare little Anne Frank, and her family, from arrest and execution at the hands of the Nazis, had she, and they, been given a trial, by invoking a higher law that was better and nobler than Hitler's law.
God's law, or Natural Law we might call it.
Jury nullification.
***
Roe v. Wade was decided by a Supreme Court that exercised a certain power, called the power of judicial review.
Roe could be repealed through the exercise of the same power.
And very likely will.
The only real difference is who sits on the Court.
That's why the election of a president is so important.
He, and she someday, appoints those who sit on the Court.
We, meaning our constitutional law, can flip-flop just like that.
One day slavery is legal, the next it's not.
It's important who sits on the Court.
It's important who sits in the Oval Office.
It's important who defense counsel is.
It's important who sits on the jury.
Does the jury have sovereignty over the application of the law?
Does popular sovereignty extend to the conscience of the community, the jury?
Should it?
Is that so bad, to allow the jury to override what it thinks is unconscionable law?
How about if we made it fail-safe, that jurors could only disregard the law to acquit, as happened in John Peter Zenger's case, but not to convict?
We could do that, if we wished.
For those interested in jury coercion by the court, see William Penn's case, in London, in Penn's time. And other coercive cases involving Bishops, Knights, and Jurors.
I like the power of judicial review, when this legal tool is wielded in a manner that increases freedom and protection of the individual.
I don't like it to be used to restrict liberty, to keep poor people down, or to repeal rights we've become accustomed to rely on.
But one man's liberty is another man's restriction, isn't it.
During slavery, the Taney court used the power of judicial review to uphold slavery and denigrate blacks.
During the Lochner era, Laissez-faire judges strode on the backs of the downtrodden laborer.
During the Depression, FDR sought to overthrow the Court as then constituted, to uphold his New Deal.
The Court, in 1937, retracted its horns.
But not enough to go out of the business of exercising this awesome power of judicial review, to override pre-existing law, regardless of which body made it, state or federal, executive (which includes military and all the administrative agencies), legislative, or judicial.
We have two safety valves, as I see it:
1. The political process, which may be all in favor of rolling back civil liberties such as abortion and the right to decide as to one's intimate relationships; and
2. The jury, via nullification, based on the idea of popular sovereignty extended to jurors.
What's your view of all this?