Nullification of Unjust Laws

[Bubba_Switzler]

I would agree with Saint Augustine that “An unjust law is no law at all.” Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal law and natural law.

It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience — conscription being the most well-known example. An unjust law is “no law at all.” It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.

usccb.org/issues-and-action/religious-liberty/our-first-most-cherished-liberty.cfm

Sounds great in theory; I applaud the Bishops unflinching directness.

But the implications are staggering if taken seriously.

The key question is how to practice this teaching. If a law is unjust is repeal the only source of relief? Civil disobedience? Uncivil disobedience?

The Bishops assert not simply that we must seek the repeal of unjust laws but that unjust laws cannot be obeyed. Of course, literally speaking, unjust laws can be obeyed so one is tempted to conclude that the Bishops are asserting that they ought not be obeyed.

And while the Bishops are rightfully concerned with the moral law of God (take that secularists!), they are quite clear in the same document about the central role of conscience.

See:

By the end of the 18th century, our nation’s founders embraced freedom of religion as an essential condition of a free and democratic society. James Madison, often called the Father of the Constitution, described conscience as “the most sacred of all property.” He wrote that “the Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” George Washington wrote that “the establishment of Civil and Religious Liberty was the Motive that induced me to the field of battle.” Thomas Jefferson assured the Ursuline Sisters—who had been serving a mostly non-Catholic population by running a hospital, an orphanage, and schools in Louisiana since 1727 — that the principles of the Constitution were a “sure guarantee” that their ministry would be free “to govern itself according to its own voluntary rules, without interference from the civil authority.”

And:

That is our American heritage, our most cherished freedom. It is the first freedom because if we are not free in our conscience and our practice of religion, all other freedoms are fragile. If citizens are not free in their own consciences, how can they be free in relation to others, or to the state? If our obligations and duties to God are impeded, or even worse, contradicted by the government, then we can no longer claim to be a land of the free, and a beacon of hope for the world.

In other words, they are inviting us to draw our own conclusions about the justness of laws and to act accordingly.

At least, that is how I am reading this.

I’m not shocked by that position but I am shocked that it would be stated so boldly and openly from these Bishops as it is a direct assault on the moral authority of the secular state.

 

[irishOntarian]

God bless the American Bishops!! Well for Catholics, it should be pretty obvious which laws are moral/immoral; Catholic moral law is pretty clear, so just look to it
I’m glad to see the American Bishops taking such an unequivocal stand.

 

[ACCT]

The role of juries is shrinking in the United States. This trend is contrary to the intent of the Founding Fathers. Juries have the right to evaluate both the facts and the law in a court case. I support a Constitutional Amendment that would have the courts inform jurors of their rights.

Jury Power

What is the proper role of a jury? Do we want to limit the role of juries? Do we want our justice system run by the experts, lawyers and judges? Society needs to decide.
I support the concept of jury power. This view holds that the trial jury has more power than Congress, the President, or even the Supreme Court. “This is because it (the trial jury) has the final veto power over all ‘acts of the legislature’ that may come to be called ‘laws’ (Jurors’ Handbook, 2002). The author supports a constitutional amendment that would have the court inform jurors of their rights. Jurors’ rights would not only include an assessment of the facts, but an evaluation of the law itself.

Trial by jury has a long lineage. The Constitution and Bill of Rights guarantees trial by jury no less than three times (Conrad, 1999). Article III Section 2 guarantees citizens accused of a crime a trial by jury. The Sixth Amendment guarantees that the trial will take place in the same district that the crime was committed. The Founding Fathers also guarantee trial by jury in civil cases where more than $20 is involved (Conrad, 1999).

Jurors have the right to judge both the facts and the law. The Supreme Court conducted a jury trial in the Case of the State of Georgia vs. Brailsford in 1794. Justice John Jay instructed the jury: “On questions of fact, it is the province of the jury; on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes the reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy (Conrad, 1999).”

Jurors have the power to nullify bad laws. “Amendment VII of the Constitution guarantees that jury verdicts which nullify laws cannot be reviewed and the Supreme Court has affirmed this (Silveira, 2001).” A jury acquittal is final. Jurors are free to vote their conscience because they cannot be prosecuted for their verdict.

“Jury nullification is when a jury acquits a person of a crime, even though it’s clear he committed the crime, because the jurors feel there are extenuating circumstances, or because they feel the law is unjust, or because the sentence will be too harsh, or because they feel the law is applied unfairly (Silveira, 2001).” Jury nullification does not change the law. Jurors just refuse to apply the law in a particular case.

The ultimate purpose of jury nullification is to reign in the abusive power of the government. Judge Thomas Wiseman said, “Congress is not yet an infallible body incapable of passing tyrannical laws (Conrad, 1999).” Adam Smith and Thomas Jefferson believed that the role of government is an umpire, not a participant (Friedman, 1990).

References
A citizens’ guide to jury duty. Jurors’ Handbook. Retrieved February 18, 2002 from the World Wide Web: fija.org/juror-handbook.htm
Conrad, C. S. (1999, May 24). Juries nullifying unjust laws. Insight on the News. Retrieved February 18, 2002 from the World Wide Web: findarticles.com/cf_0/m1571/19_15/54736559/print.jhtml
Conrad, C. S. (1999, November). Jury nullification: Jurors flex their muscles. USA Today.
Frequently asked questions. Fully Informed Jury Association (FIJA). Retrieved February 18, 2002 from the World Wide: fija.org/faq.htm
Friedman, M., & Friedman, R. D. (1990). Free to Choose. New York: Harcourt, Inc.
Glaberson, W. (2001, May 2). Juries, their powers under siege, find their role is being eroded. The New York Times, p. A.1
Silveira, J. (2001, September). The coming American Dictatorship part VI. Backwoods Home Magazine.

 

[Bubba_Switzler]

The role of juries is shrinking in the United States. This trend is contrary to the intent of the Founding Fathers. Juries have the right to evaluate both the facts and the law in a court case. I support a Constitutional Amendment that would have the courts inform jurors of their rights.

Yes, jury nullificaton is cetainly one option. It would be interesting to see the bishops call on Catholics not to convict in cases where the defendant was disobeying an unjust law.

 

[ACCT]

There is a struggle between those who believe in juror activism and those who believe in judicial activism. The government does not like its laws vetoed by a jury. The courts seek to limit the power of juries in various ways. The jury selection process can be engineered to disqualify people who understand what jury nullification is all about. “A couple of especially hard questions for those who understand and appreciate the political role of the jury are “Will you follow the law as given, even if you disagree with it?’ and/or ‘Have you read any material on the topic of jury nullification (Fully Informed Jury Association, 2002)?’”

Another tactic is to limit the number of trials with juries. Only 4.3 per cent of federal criminal charges are now ending in jury verdicts, down from 10.4 percent in 1988. Federal civil cases resolved by juries dropped from 5.4 percent in 1962 to 1.5 percent in 2000 (Glaberson, 2001).

Many believe that cultivating jury nullification is a mistake. “Unlike legislators or electors, jurors have no opportunity to investigate or research the merits of legislation (King, 1999). “Some legal scholars, judges and business lawyers say that reining in juries is a necessity in an overloaded legal system. Others argue that juries must be controlled to limit excesses, and curb prejudices like hostility to big corporations (Galberson, 2001).”

Those who seek salvation by law from a strong government may not be aware of the law of unintended consequences. Milton Friedman (1990), winner of the Nobel Prize in economics, said it best. ** “An individual who intends only to serve the public interest by fostering government intervention is ‘led by an invisible hand to promote’ private interests, ‘which was no part of his intention.’”**
The author does not want our judicial system run by lawyers and judges, and he does not want to limit the role of juries. The author believes that the eroding role of juries is contrary to the intent of the Founding Fathers. To remedy the eroding role of juries, the author supports a constitutional amendment to inform all jurors of their Constitutional right to nullify the law.

---

References
A citizens’ guide to jury duty. Jurors’ Handbook. Retrieved February 18, 2002 from the World Wide Web: fija.org/juror-handbook.htm
Conrad, C. S. (1999, May 24). Juries nullifying unjust laws. Insight on the News. Retrieved February 18, 2002 from the World Wide Web: findarticles.com/cf_0/m1571/19_15/54736559/print.jhtml
Conrad, C. S. (1999, November). Jury nullification: Jurors flex their muscles. USA Today.
Frequently asked questions. Fully Informed Jury Association (FIJA). Retrieved February 18, 2002 from the World Wide: fija.org/faq.htm
Friedman, M., & Friedman, R. D. (1990). Free to Choose. New York: Harcourt, Inc.
Glaberson, W. (2001, May 2). Juries, their powers under siege, find their role is being eroded. The New York Times, p. A.1
Silveira, J. (2001, September). The coming American Dictatorship part VI. Backwoods

 

[Captain_America]

Everyone who feels moral concerns here should be readying, now, for civil disobedience, perhaps by setting aside their bond money and locating appropriate legal counsel.

If I were a bishop, I’d be doing this. I would also make sure it was publicly known.

 

[ACCT]

Yes, jury nullificaton is cetainly one option. It would be interesting to see the bishops call on Catholics not to convict in cases where the defendant was disobeying an unjust law.

Jurors have the duty to judge the law as well as the facts! Therefore, jurors should not convict anyone who disobeys an unjust law, regardless of the facts or the instructions of the judge. Jury nullification is our last best hope against government tyranny.

 

[Bubba_Switzler]

Jurors have the duty to judge the law as well as the facts! Therefore, jurors should not convict anyone who disobeys an unjust law, regardless of the facts or the instructions of the judge.

Right, but there is a difference between recognizing this as a matter of American (or Anglo) law and tradition and having the Catholic Church endorse and promote it.

 

[ACCT]

Right, but there is a difference between recognizing this as a matter of American (or Anglo) law and tradition and having the Catholic Church endorse and promote it.

We have already lost our right to jury nullification. If you have the opportunity to get on a jury, keep your mouth shut, and vote according to your conscience. It is enough to know about your right to judge the law, contrary to the popular opinion of the judges.

 

[Bubba_Switzler]

We have already lost our right to jury nullification. If you have the opportunity to get on a jury, keep your mouth shut, and vote according to your conscience. It is enough to know about your right to judge the law, contrary to the popular opinion of the judges.

I don’t think that is accurate to say that we have already lost our right to jury nullification. What has happened is that judges have instructed against it. But as you yourself point out, as long as there are juries there will be jury nullification.

What is lacking is any systematic, trusted promotion of the idea. Most people have never heard of it and would be cowed by the judges intructions against it.

But that would change radically if bishops were to publicly promote the idea. Merely threatening to do so would throw the fear of God (so to speak) into secular powers.

 

[ACCT]

I don’t think that is accurate to say that we have already lost our right to jury nullification. What has happened is that judges have instructed against it. But as you yourself point out, as long as there are juries there will be jury nullification.

What is lacking is any systematic, trusted promotion of the idea. Most people have never heard of it and would be cowed by the judges intructions against it.

But that would change radically if bishops were to publicly promote the idea. Merely threatening to do so would throw the fear of God (so to speak) into secular powers.

If jurors can only judge the facts, and not the law, then we have lost our right to jury nullification. One of my accounting texts on taxation clearly states that jurors only have the right to judge the facts and only judges have the right to judge the law. That is a false statement, of course. However, that false statement is taken as gospel by most of the accounting students.

Today we live in an age of judicial activism, or as some have called it, judicial tyranny. Thomas Jefferson wrote, “The germ of dissolution of our federal government is in the constitution of the federal judiciary…working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped” (Bergh 331-332).

Judicial activism is contrary to the intent of the Founding Fathers. Therefore, I support the concept of jury nullification. This view holds that the trial jury has more power than Congress, the President, or even the Supreme Court. “This is because it (the trial jury) has the final veto power over all acts of the legislature that may come to be called laws” (Jurors’ Handbook). **Jurors’ rights not only include an assessment of the facts, but an evaluation of the law itself. **

 

[Bubba_Switzler]

If jurors can only judge the facts, and not the law, then we have lost our right to jury nullification.

Jurors can do whatever they **** well please.

One of my accounting texts on taxation clearly states that jurors only have the right to judge the facts and only judges have the right to judge the law. That is a false statement, of course. However, that false statement is taken as gospel by most of the accounting students.

It is not simply false in the sense of history and law, it is false as a practical matter. Now power in the world can compel a juror to stick to the facts and ignore the law.

All that is lacking is education of jurors to this reality.

 

[ACCT]

Jurors can do whatever they **** well please.

It is not simply false in the sense of history and law, it is false as a practical matter. Now power in the world can compel a juror to stick to the facts and ignore the law.

All that is lacking is education of jurors to this reality.

 

[Bubba_Switzler]

And as the bishops note, following Martin Luther King Jr.’s exegesis of St. Augustine in King’s Letter from Birmingham Jail, “An unjust law is no law at all.” Nor do the bishops hesitate to draw out the full implications of their analysis:

“It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

Thus the bishops reject the anorexic notion of religious freedom once described by Harvard’s Laurence Tribe as a matter of marginal carve-outs that a benign government makes while enforcing the naked public square, shorn of religiously informed moral arguments and convictions. The bishops are not interested in being accommodated; they are interested in justice. So it is “essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience — conscription being the most well-known example. An unjust law is ‘no law at all’. It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.” The bishops also urge Catholics to stop thinking in Tribal categories, as if we were children asking our nannies for a treat. We are not asking for favors; we are demanding that our rights be acknowledged and protected.

nationalreview.com/articles/296053/framing-religious-liberty-issue-george-weigel

 

[BobCatholic]

Yes, jury nullificaton is cetainly one option. It would be interesting to see the bishops call on Catholics not to convict in cases where the defendant was disobeying an unjust law.

Jurors can do whatever they **** well please.

It is not simply false in the sense of history and law, it is false as a practical matter. Now power in the world can compel a juror to stick to the facts and ignore the law.

All that is lacking is education of jurors to this reality.

Unfortunately, juries have no power in administrative hearings or many civil proceedings, since those are done without any juries. And those are where the OVERWHELMING part of judicial/quasi-judicial activity is done to enforce the laws.

This is how totalitarianism works.

 

[Bubba_Switzler]

Unfortunately, juries have no power in administrative hearings or many civil proceedings, since those are done without any juries. And those are where the OVERWHELMING part of judicial/quasi-judicial activity is done to enforce the laws. This is how totalitarianism works.

Good point. Which would bring us back to civil disobedience.

 

[ACCT]

No amount of laws will EVER protect man from himself. Our governments would have us believe that they can legislate our well being – mainly because most of our legislators are lawyers!

I do not believe in “salvation by law.” I have heard that the United States has 40% of the world’s lawyers, 25% of the world’s prisoners, and only 6% of the world’s population. What is wrong with that picture? I would love to get rid of the “excess” lawyers. **I think that the only way to get rid of the “excess” lawyers is to get rid of the “excess” laws. ** For example, the United States is the only country in the world that has punitive damages. The only purpose of punitive compensation is to punish. Why can’t we be satisfied with just compensatory damages, like the rest of the world? How many lawyers can we eliminate by eliminating punitive damages?

I would love to eliminate administrative law. For example, the IRS “makes” the laws.
Their mouth is the law. I like the IRS definition of income. Income is everything unless the IRS says it is not income. On the other hand, nothing is a deduction unless the IRS says it is a deduction! Everything is in favor of the IRS. At the present time a taxpayer does not have the right to a trial by jury if there is a dispute with the IRS.

I contend that administrative law is illegal under the Constitution. For example, the SS (Social Services) can accuse anyone of a sex offense, and that accusation has the force of law. ("My mouth is the law,” said King John.) The SS can separate any person from his family with just an accusation!

Congress believes in “salvation by law.” If only there were a perfect law, there would be a perfect society. The SEC gives detailed reasons why both rules-based and principles-base standards in accounting are subject to manipulation. The SEC says that rules and laws are a blueprint for criminal behavior!

I do not think that rules-based ethics, for example, is going to lead us to more ethical behavior. Excessively detailed rules not only constitute a guideline to fraud, but a ready-made set of defenses. Unethical people can claim that they followed the rules, even while they may have intended to mislead (fraud). Criminals can follow the letter of the law without following the spirit of the law. My opinion is that the spirit of the law leads to the correct objective, ethical behavior. Even the SEC is pushing for objectives based accounting standards.

 

[Bubba_Switzler]

No amount of laws will EVER protect man from himself. Our governments would have us believe that they can legislate our well being – mainly because most of our legislators are lawyers!

I do not believe in “salvation by law.” I have heard that the United States has 40% of the world’s lawyers, 25% of the world’s prisoners, and only 6% of the world’s population. What is wrong with that picture? I would love to get rid of the “excess” lawyers. **I think that the only way to get rid of the “excess” lawyers is to get rid of the “excess” laws. ** For example, the United States is the only country in the world that has punitive damages. The only purpose of punitive compensation is to punish. Why can’t we be satisfied with just compensatory damages, like the rest of the world? How many lawyers can we eliminate by eliminating punitive damages?

I would love to eliminate administrative law. For example, the IRS “makes” the laws.
Their mouth is the law. I like the IRS definition of income. Income is everything unless the IRS says it is not income. On the other hand, nothing is a deduction unless the IRS says it is a deduction! Everything is in favor of the IRS. At the present time a taxpayer does not have the right to a trial by jury if there is a dispute with the IRS.

I contend that administrative law is illegal under the Constitution. For example, the SS (Social Services) can accuse anyone of a sex offense, and that accusation has the force of law. ("My mouth is the law,” said King John.) The SS can separate any person from his family with just an accusation!

Congress believes in “salvation by law.” If only there were a perfect law, there would be a perfect society. The SEC gives detailed reasons why both rules-based and principles-base standards in accounting are subject to manipulation. The SEC says that rules and laws are a blueprint for criminal behavior!

I do not think that rules-based ethics, for example, is going to lead us to more ethical behavior. Excessively detailed rules not only constitute a guideline to fraud, but a ready-made set of defenses. Unethical people can claim that they followed the rules, even while they may have intended to mislead (fraud). Criminals can follow the letter of the law without following the spirit of the law. My opinion is that the spirit of the law leads to the correct objective, ethical behavior. Even the SEC is pushing for objectives based accounting standards.

There is much wisdom here and much I agree with. But, alas, your commebt that “I contend that administrative law is illegal under the Constitution” is a dead end. The problem is that the amendment authorizing direct taxation follows the bill of rights and it is therefore been held, supercedes those. It’s pretty questionable reasoning, to be sure, but given the government bias to protect government, there is little chance that it will ever change.

The more fundamental issue that the bishops raise, and which you touch on here, are the limits to the legitimacy of government power. It may be that we have no practical recourse to unjust law but we can at least acknowledge it as such and, thereby, make the moral case against it.

If we take the additional step of disobeying unjust law then we will be voting with our disobedience against it. If our ancestors could face lions and torchings the least we can do is risk fines and jail.

 

[BobCatholic]

But, alas, your commebt that “I contend that administrative law is illegal under the Constitution” is a dead end. The problem is that the amendment authorizing direct taxation follows the bill of rights and it is therefore been held, supercedes those. It’s pretty questionable reasoning, to be sure, but given the government bias to protect government, there is little chance that it will ever change.

Yes, the government has the right to tax. That part is undisputed.

But there’s a part of the constitution called Separation of Powers.

The legislative branch (Congress) legislates.
The executive branch (president and administrative agencies) enforce the law.
The judicial branch judges.

None of these three are supposed to do the other’s job.

Administrative Law says that Executive Branch can both legislate (regulation) and judge (judicial action)

This violates separation of powers.

 

[Bubba_Switzler]

Yes, the government has the right to tax. That part is undisputed.

But there’s a part of the constitution called Separation of Powers.

The legislative branch (Congress) legislates.
The executive branch (president and administrative agencies) enforce the law.
The judicial branch judges.

None of these three are supposed to do the other’s job.

Administrative Law says that Executive Branch can both legislate (regulation) and judge (judicial action)

This violates separation of powers.

Well, that’s the constitution. Don’t get me wrong, I think it’s a great document. So your points are certainly appropriate and relevant.

But I’m more interested in the Catholic Church’s perspective on law and the rare courage displayed by the bishops now that they have their backs againts the wall.