Nullify This

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“Single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions, begun at a distinguished period, and pursued unalterably thro’ every change of ministers, too plainly prove a deliberate, systematical plan of reducing us to slavery.”

~ Thomas Jefferson, 1774

For at least 40 years, modern proponents minarchy and anarchy have argued that we can eliminate many, if not all government functions and replace them with self-governance. Some do this by appealing to the imagination of their audiences. Robert Heinlein was particularly good at this. Some have chronicled current and past attacks on liberty to which government inevitably turns.

A wide variety of proposals have been offered as a means to fashion freer societies including the creation of new political parties. Some have even acted upon this advice. The Libertarian, Green, Constitution, Peace and Freedom, Reform and many other parties have been formed over the last 40 years. Government responded exactly like one should expect. It crafted laws making it nearly impossible for the new parties to effectively compete.

Some have argued over the very morality of voting. Some suggest that voting a certain way will promote liberty. However, very few writers in the modern era have suggested that we may have all of the tools we require to drastically reduce the size and scope of government without ever casting a vote.

Whether or not you are philosophically inclined toward libertarianism or anarchy, it’s hard not to agree that voting for politicians has been an unmitigated disaster if you measure success by limitations placed on government as a result. I speak from a particularly American perspective, but I think this statement could apply anywhere. If it is the U.S. federal government or a particular state, the size and scope of government continues to increase. Other than the possibility of catastrophic failure, the horizon does not indicate a change in this trend. The U.S. Debt is now at 94% of its GDP.

We have witnessed in recent months the growth in anti-government sentiment that even the mainstream media can’t ignore but that our elected officials ignore with apparent impunity.

Voting is the least effective way to affect change. Legislatures react slowly to objections against tyranny that they haven’t created and even slower to that which they have. In Texas for instance, the legislature meets only once every other year. When a bad law is passed, Texans have to wait two years for a repeal, “reform” or nullification assuming that elections netted lawmakers inclined to provide relief. I’m not sure this has ever happened in Texas’ history.

In the meantime, several hundred citizens may have been prosecuted and punished while her citizens wait for another election cycle. The examples are almost too numerous to list where voters have attempted to change policy only to find that the politicians are not so inclined once in office. 1994, a year that seemed to hold so much promise, proved to be another bait and switch. It produced a republican majority in the House of Representatives arriving by way of anti-government sentiment prevalent at the time. But the results were a major disappointment. Despite promises to balance the budget and reduce spending, government continued to grow at an alarming rate.

Apologies for the negative waves, but the discussion surrounding voting is itself a red herring. The framers of our government never intended voting to be as important as its modern-day proponents and antagonists suggest.

It is fashionable to say that the Constitution created a government replete with “checks and balances” but it is probably better to characterize them as safety valves. For instance, impeachment. Ben Franklin described impeachment as a way to prevent assassinations. Pressure, release. Each body of government was to have its own distinct duties but in case tyranny were to flourish, safety valves were added to reduce the necessity of violence as remedy.

The 6th amendment to the constitution was one such safety valve. It states simply:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The word jury, at the time this amendment was drafted, had a far different meaning than it is accorded today. The first instructions given a jury by a Supreme Court of the United States were delivered by then Justice John Jay (yes, a jury trial in the Supreme Court):

“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." ~ State of Georgia vs. Brailsford (3 Dall 1).

In reading dictionaries of that era, you will find that John Jay was not inventing something out of thin air. A Jury was defined as a body of men who were expected to judge both the law and the facts in criminal cases. In fact, by the time that Jay gave these instructions, the jury’s role as judge of law and fact had already seen it’s five hundredth birthday come and go.

Rather than leave the citizens naked against legislatures intent on “reducing us to slavery," the jury provides an immediate and legal means to strike down unjust laws and repudiate prosecutors and judges who have used just laws to persecute their constituents. This was deliberate and intentional.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” ~ Thomas Jefferson in a letter to Thomas Paine, 1789.

This speaks directly to just whom is empowered to interpret the constitution. The jury is not only a wonderful backstop to belligerent legislatures and prosecutors, but also against judges who presume to interpret the constitutions in a way contrary to common sense and reason. Clearly, Jefferson at least, never intended that the interpretation of our constitutions be limited to judicial review. Reading the intent any other way is to employ circular reasoning; the authority to judge the legitimacy of government actions is the sole authority of government itself.

Statists assert that only the Supreme Court and its district subordinates decide what is and isn’t constitutional. If you thought voting was slow to change government’s direction, how about waiting up to 12 years as your case travels up the district and circuit court food-chain before it is heard by the SCOTUS? And maybe then only to be told that the government is allowed to deny your rights by way of some invented “compelling interest."

No. That was never the intended outcome.

If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” ~ Chief Justice Harlan F. Stone

Consider that the right to have your case placed in front of a jury is, ipso facto, the right to sit on juries. Today we tend to dread the summons for jury duty. It takes time. Some cases have been known to take months. In fact, you will see quite a few libertarian types brag that the way to get out of jury duty is to simply declare that you know your rights. It’s true. Judges and prosecutors wither from juries aware of their rights. And they will do anything, including lying to your face, to prevent you from exercising your prerogative.

From the inception of the United States until 1895, courts as a routine informed the juries that they had a right and duty to judge the law as well as the facts. In 1895, that changed dramatically. In Sparf and Hansen v. United States, the Supreme Court addressed jury nullification directly for the first and only time. The court acknowledged that the jury had the right to judge the law, but it also ruled that judges didn’t have to inform them of this right. And the judges and prosecutors rejoiced.

You see, up until that time, a great number of tyrannical designs had been neutered by juries. Slavery, prohibition, sedition laws, death penalties…. all of these and more have been abolished in the jury box. Where the ballot box created such messes, the jury box cleaned them up. The ammo box could afford to gather dust a little longer.

There are scholars lately focused on legislative tools, nullification and interposition. However, these not only rely upon the ballot box, but have also historically been the follow-on to jury nullification rather than a pre-cursor. The legislative nullification of fugitive slave laws came after juries nullified them, rather than before. In essence, the legislatures were merely formalizing what had already been accomplished by jurors rather than leading the charge to erase tyranny.

The same can be said of prohibition, nullified even after judges stopped informing juries of their right to judge law. The final legislative repeal of the 21st amendment was a mere formality. The government found it virtually impossible to convict and thus it went about saving face while throwing in the towel. Can you imagine any similar outcome as a result of voting? If so you have a vivid imagination because such has never happened in our relatively brief history.

“For more than six hundred years — that is, since Magna Carta, in 1215 — there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.” ~ Lysander Spooner, The Right of Juries

To really understand the principle of individual sovereignty, one only has to examine the history (pdf) of jury nullification. Every principle of self-government is embodied in the act of individuals using common sense and reason to repudiate those who would seek to control them under color of law. Both civil disobedience and its inextricable mate, jury nullification, are all the individual needs to restore the rightful role of government to protect, rather than destroy an individual’s liberty.

Those who complain that we have no tools but for voting or revolution are dead wrong and it’s time to nullify this erroneous thinking. Rather than take to the streets waving cardboard, seekers of liberty should direct themselves post-haste to their nearest court house and volunteer to sit on a jury.

And make no mistake, if the judges and prosecutors are willing to blatantly lie in order to keep you off of a jury, it is not only moral for you to lie your way onto that jury, but your duty should it be required. Because they will lie and when the court reviews the judge’s instructions that a juror may not judge the law, they will not hesitate to find in the judge’s favor.

Do not fret that you live in a community of people who enjoy servitude. It only takes one juror to hang a verdict. If we allow the one effective tool of liberation to be atrophied and marginalized by statists and naysayers, there will be only one option left, and it won’t be a voting booth.

Rick Fisk [send him mail] is a software developer and entrepreneur. He is married, has three children and resides in Austin, TX.

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