Danger ahead — the nullification of the Congress
By Norvell Rose
There hasn’t been so much heated discussion of “nullification” since the OJ trial. You remember that culture-clash moment in American Justice, don’t you? When OJ Simpson, the former NFL star turned actor, was acquitted of the murders of his ex-wife, Nicole, and her friend? The 1995 courtroom spectacle in Los Angeles has been described as the most publicized criminal trial in American history. Its outcome — an acquittal in the face of reasonably damning evidence — has also been cited as one of the most glaring examples of a legal phenomenon known as “jury nullification.”
Put simply, jury nullification is the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her. It is the power of the panel to act in bold defiance of both law and fact, voting to set a defendant free, even if that person did run afoul of a particular criminal statute. In the OJ case, the sympathetic jury essentially poked a prominent finger in the eye of the system, giving their own peculiar twist to the term “blind justice.”
More recently, nullification of a different sort has been put on trial in the court of public opinion and pursued in the chambers of state legislatures across the country. This type of nullification is not an act of defiance, rather one of obedience — obedience to the Constitution of the United States and to the conscience of its determined protectors.
When a state nullifies a federal law, it does so with the solemn conviction that the law in question is unconstitutional. The state’s lawmakers, generally invoking their sovereign powers under the Tenth Amendment, are proclaiming that the offensive law is void and inoperative, or non-effective, within the boundaries of that state. In other words, they declare that the federal law is not “legal” and cannot be enforced against their citizens.
Such nullification has a long history in the American tradition. Of late it has been used by quite a few states in effectively blocking the federal Real ID Act of 2005 and resisting federal marijuana laws. With regard to healthcare legislation expected to be forced on us against our will by Washington, a number of states are already putting into motion the wheels of nullification. Legislation has been introduced, or state constitutional amendments put forth for 2010, that could effectively nullify national healthcare mandates within the borders of the various states.
What’s directly implied in such nullification laws is “interposition” (as referred to by James Madison in the Virginia Resolution of 1798). This is a bedrock principle supporting state sovereignty. According to this principle, state governments not only have the right to resist unconstitutional federal acts, but, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state. To do less would be an unconscionable dereliction of civic duty and would jeopardize the standing of the state and the rights of its citizens.
Which introduction to nullification brings us now to the sharp point of this piece — the looming danger we face from the impending nullification of the Congress of the United States.
It is a charge that, until recently, would seem too outrageous even to consider. But given the extreme, purposeful and concerted misdeeds, destructive acts and examples of egregious malfeasance by official Washington, it is a charge that cries out to be aired.
The Obama Administration and its either willing or unwitting co-conspirators on Capitol Hill (I would bet heavily on “willing”) are, without a doubt, scheming to undermine our cherished Constitutional system of checks and balances. They are conspiring to cause future elections of our U.S. Senators and Representatives to be effectively “null and void” in their legislative impact. After all, in their radical leftist construct for government “rule,” why should the “rulers” have to bother with that pesky, problematic, unpredictable Congress? This would, indeed, be “fundamental change,” wouldn’t it? And if the Obamacratic oligarchists succeed in this subversion — one that would tragically be “historic and unprecedented” (to borrow again from Mr. Obama’s lofty language) — it will matter little how federal elections turn out in 2010…or in any year beyond.
Alarmist, am I? Cuckoo escaped from the cage, you say? Consider this: Every major move, initiative, proposal or policy of the Obama White House and its willing enablers down the street in DC has, at its dark heart, a pernicious power grab or power shift. The intent? To restructure the balance of power into the hands of an almighty Executive. The evidence?
Healthcare. Use empty promises, corrupt bargains, secret negotiations … ignore the clear and consistent will of the people … create some horrendous, freak show of a bill built in haste for partisan political purposes … ram it, cram it, jam it through in a “crisis” atmosphere … grab untold power for a vast new bureaucracy, as well as for the IRS as “enforcer” … and … Congress is then pretty much out of play because this voracious monster will be able to feed at will and grow willy-nilly without restraint.
Stimulus. Shifting control of massive spending, with its attendant employment design capability, from the Legislative to the Executive Branch, with the Treasury Department now fairly well in charge of Uncle Sam’s checkbook and credit card.
Bailouts. From banking to energy to transportation, critical decisions about money and management are being effectively maneuvered into the hands of the President and his inner circle, including select corporate chieftans and union bosses.
Taxes. Why mess around with contentious legislation when the same effect can be achieved — gaining greater control over Americans’ money — by using assumed Executive power to directly or indirectly impose fees, levies, fines and surcharges?
Environment. Shift ever-greater command and control to Executive-branch agencies, e.g. the impudent EPA, usurping the constitutional authority of the Congress, which is forever diminished.
Czars. Well, do we really need to review how these powerful presidential appointments — dozens of liberal loose cannons — skirt meaningful Legislative-branch advice, consent and oversight?
And on and on the sad story goes. A story whose ending could well mark the end of Congress as a body with any real power and authority. Too many in Congress have, for far too long, been complacent or complicit in this crime.
Understanding this in-our-face attempt to disrupt and dismantle our system of government helps to explain why the President and the Democrat leadership turn an increasingly deaf ear to the complaints of the voters. Those complaints, according to their scheme, will soon be rendered moot, mere background noise. They know our best, most immediate course of action against the Obamacrats attempted coup is to “throw the bums out” in November. But if the biggest and baddest of the bums can pull off their power play, our voting a new team onto the political field in Washington will have little impact on changing the outcome of the liberals’ endgame.
The alarming evidence of the Administration’s purposeful attempt to pry more and more authority from the Congress is stark and overwhelming. The arguments demonstrating the President’s plan to amass and consolidate government power under his far-reaching control are clear and compelling. The Congress — the most direct reach of the people into the Washington political machine — is being systematically neutered. Nullification of this once-great legislative body is fully underway.
We can only hope that We the People — the jury in this felony case — will rise up and deliver an unflinching verdict based on the law of the land and the Constitutional foundations upon which it rightly rests. This must be a verdict that will render swift and sure punishment to those offenders who are trying to get away with the Constitutional crime of the century. The strength of our demand that this grand larceny stop, and stop right now, will determine whether We the Jury — We the Voters — are, ourselves, nullified.
As to whether this justice is forthcoming, history will be the judge.
By Neal Ross 4 Aug 2008/In 1975 rock guitarist Ted Nugent recorded a song entitled Stormtroopin. In it he sang, “Where’s the justice and where’s that law. Raise your healthy voice.” That was thirty three years ago, yet the question still arises, just where is the justice, and where is that law.
When one talks about who has the power in this country, I often find that people assume that the power lies with the government. That was not always so. Our very first president, George Washington, once said, “The power under the constitution will always be in the people. It is intrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and, whenever it is executed contrary to their interest, or not agreeable to their wishes, their servants can and undoubtedly will be recalled.”
That is a very powerful statement, yet for the people to hold on to that power they must be willing to exercise it, sometimes at great cost. For them to fear what may befall them should they go against the many agencies of the federal government means that they have willingly given up their rightful power and that the government, instead of being the servant, has become the master.
The federal government only exists because the Constitution for the United States of America grants it the power to govern. Article six of the Constitution states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
James Madison, who many consider the author of the Constitution, declared in a speech in the Virginia Ratifying Convention, “[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
Ten Years later Thomas Jefferson wrote, “Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
Even Alexander Hamilton, who stood for a loose interpretation of the Constitution stated, “No legislative act contrary to the Constitution can be valid.”
People assume that our Constitution grants our legislators whatever powers they deem necessary to govern the people. That is not the case. As Jefferson said, “[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”
Short of open rebellion, what are a people to do when their government wields the ability to imprison them for violating laws that are blatantly unconstitutional? First off people must become familiar with the limitations our Constitution places upon our government. As long as we do not understand the true function of government, then we will remain slaves to it. James Madison once said, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Yet even knowledge is not enough. People must be willing to stand up for their beliefs and use the law against those who would pervert it. Each of us, according to the Sixth Amendment, shall “…enjoy the right to a speedy and public trial, by an impartial jury…”
Therein lies our true power over an abusive tyrannical government. Thomas Jefferson said of this concept, “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.”
Therefore, if the people become aware of the limitations placed upon the government by the Constitution, and find themselves in a court of law for violating a law that is unconstitutional, there is one thing, which our government does not wish for us to know, which can clear us of all charges, that being jury nullification.
Jury nullification is when the jury finds a person innocent due to the fact that they find the law under which a person is charged null and void. This may sound radical by today’s standards, but consider what John Jay, our very first Chief Justice of the Supreme Court once said, “The jury has the right to judge both the law as well as the fact in controversy.” Therefore, a jury may acquits any defendant due to the fact that the law he is charged with is unconstitutional. You have to remember, as George Washington said, “The power under the constitution will always be in the people.”
If the power under the Constitution lies with the people, and that juries consist of our peers, and that juries are also to “…judge both the law as well as the fact …” then that is a mighty tool we wield to fight against usurpations of power by our government.
Jury nullification is something that was commonly understood by jurors, in fact it was explained to them by the judges themselves. However in the 1800’s the judges began questioning jurors to find if they were prejudiced against the governments position. If found to be biased against the government, they were dismissed.
Then, in 1895, the Supreme Court ruled that courts no longer had to inform juries that they had the power to veto an unjust law. In U.S. v Moylan, the Fourth Circuit Court affirmed the right of jury nullification, yet upheld the courts right to refuse that the jurors be notified of that right. In U.S. v Dougherty 473 F.2d 1113, the U.S. Court of Appeals for the District of Columbia ruled similarly, stating that jury nullification is a de facto power, but they also ruled that a defense attorney may not inform the jury of that right.
Jury nullification is something very few are familiar with. Jurors are now instructed by the judge, as they are in California, ““It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I shall state it to you . . . You are to be governed solely by the evidence introduced in this trial as the law as stated to you by me.”
In 1788, during the debates for the ratification of the Constitution, it was argued, “If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizens safeguard of liberty.”
John Adams, our second President once said, “…it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Yale Law Journal, 1964:173)
Jury nullification is a powerful tool that can be wielded by the people against their government. Yet it can only be wielded by a people who are informed as to the true functions of their government according to the Constitution.
This is why I repeat, ad naseum, that our apathy is what is allowing this country to sink further towards our own destruction. How can we fight against an overwhelming government if we are not informed?
Jury nullification cannot work when only one person has the courage to stand up and argue against punishing our fellow countrymen for violating laws that are unjust.
As long as we blindly follow political parties who have no desire to uphold the Constitution, we have no hope of reclaiming our freedom. As long as we rely upon the news media to inform and educate us concerning the true function of our government, we will continue existing as servants to an ungrateful master.
As Ted Nugent said, “Where’s the justice and where’s that law. Raise your healthy voice.”