Publication: The Right of Jury Nullification in Reconstruction-Era Originalism: The Fourteenth Amendment and the Constitutionalization of Judicial Precedent
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2009
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Jonathan Bressler, The Right of Jury Nullification in Reconstruction-Era Originalism: The Fourteenth Amendment and the Constitutionalization of Judicial Precedent (April 2009).
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More than a century ago, the Supreme Court, invoking antebellum judicial precedent, held that juries no longer have the right to “nullify,” that is, to refuse to apply the law. Today, however, in determining the substance of the constitutional criminal procedure right of trial by jury, the Supreme Court emphasizes originalism, assessing the right’s current boundaries by the Founding-era understanding of it. Relying on the Supreme Court’s originalist jurisprudence, scholars and several federal judges have recently concluded that because Founding-era juries had the right to nullify, the right was beyond the authority of nineteenth-century judges to curtail, and that, under the current originalist regime, it should be restored. Yet originalists who advocate restoration of the right to nullify are missing an important constitutional moment: Reconstruction. The Fourteenth Amendment fundamentally transformed constitutional criminal procedure by incorporating rights against the states and by providing a federally guaranteed civil right to protection that altered the relationship between the federal government and localities and between federal judges and local juries. Reconstruction-era history thus illuminates a new original understanding of constitutional criminal procedure rights today.
This paper analyzes Reconstruction-era judicial practices, legal treatises, dictionaries, Congressional debates, and Congressional legislation to provide an account of how the Fourteenth Amendment’s framers, ratifiers, original interpreters, and original enforcers understood the “new” Constitution and their amendment to affect jury nullification. It finds that the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate the jury’s right to nullify against the states, even as it incorporated a general right to jury trial and due process. On the contrary, the Reconstruction Republicans understood jury nullification to be incompatible with the constitutional rights to life, liberty, property, and security that they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, the Reconstruction Republicans, understanding the Constitution to authorize them even to disallow jury nullification in at least some types of federal cases, supported legislation that would purge in mass from criminal juries Southern and Mormon would-be nullifiers, even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.
Therefore, the Reconstruction Congresses, through the Fourteenth Amendment and its enforcement legislation, may have superdemocratically constitutionalized the nineteenth-century judicial precedent that had disallowed the jury’s right to nullify. There may be, in other words, an originalist basis, grounded in the Fourteenth Amendment’s text and history, for the shift away from the right to nullify. While no single account may definitively capture “original meaning,” Reconstruction-era history provides a new original understanding of a dilemma in contemporary constitutional criminal procedure.
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legal history, constitutional law
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