The Forgotten Check & Balance: Should You Decide What The Law “Means?”

Every now and then, a lawyer or a lawyer-to-be comes across a case that is an eye-opener beyond the facts of that particular case. I had such a moment last week, and I spent most of the leisure time that I had this past weekend trying to figure it out. My bewilderment boils down to a simple question:

Why is there a criminal jury clause in Article III of the federal constitution?

Stupid question, right? Think again. When the overwhelming majority of Americans think of a right to a criminal jury trial, they instinctively turn to the Sixth Amendment. I am just as guilty. Consequently, in the midst of fervently writing a brief last week, I inadvertently stumbled upon the jury clause of Article III:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

U.S. Const. Art. III, Sec. 2.

With such a specific clause, why did the First Congress and the states that ratified the original federal constitution feel the need to guarantee a criminal trial by jury in the Sixth Amendment?

Lawyers, judges, and legal scholars, however, have largely turned an apathetic eye to Article III’s jury clause, and one can hardly blame them. Why resort to less specific language when you have the very helpful and specific language of the Sixth Amendment, which covers almost all of your needs? In other words, it would take an exceptional case for Article III’s jury clause to come into play.

Sometimes though, exceptional cases do send lawyers and their law clerks in directions that they never dreamed possible. Such was the case with this young mind last week, and it has formed some strong preliminary opinions.

Most of us understand the concept that the first three articles of the U.S. Constitution establish three branches of government: the legislature, the executive, and the judiciary. We also understand that each branch of government possesses inherent checks against the power of the other branches, thus balancing government. Article III establishes the judiciary, and it gives it the power to tell the legislature and the executive when it commits a wrong.

Conventional wisdom, however, tells us that only judges wield the power to check the executive branch as a matter of law. I, however, have spent my life finding bigger cliffs to tell conventional wisdom to jump off of.

The placement of a criminal jury clause in Article III indicates, unmistakably to me at least, that the Framers of our federal constitution did not intend juries to be mere factfinders as is their modern role. The Framers expected them to wield the full panoply of the Article III judiciary’s powers to check the executive branch, and even Congress, when it comes to criminal prosecutions. In other words, when you – the average citizen – serve on a criminal jury, the Constitution states that you wield the power to determine whether the government’s prosecutorial decisions are consistent what the law is and means.

Last week, I expressed that principle as follows in a brief while using the Sixth Amendment as my starting point:

Juries that fulfill their Sixth Amendment responsibility do not judge the propriety of a law. They judge how the United States chooses to apply it. In other words, the United States must defend its decisions to a jury of the people it governs just as [a criminal defendant] must defend his to a jury of his peers.

Governments, judges, lawyers, and legal scholars are mortally afraid of this principle. Will society descend into anarchy as juries run amok by handing out acquittals to criminal defendants represented by smooth-talking shysters as my grandfather would say? They’ve even developed a pejorative for it too. Jury nullification. The very term conjures up visions of anarchist juries striking down every law that a legislature enacts, leaving us in a lawless society.

I doubt it, and history confirms my doubts. Jury nullification predates the Founding Fathers, and they understood and constitutionalized the concept. Society didn’t suffer from anarchy. Instead, it accepted laws that would be what we would consider unacceptable restrictions on fundamental liberties.

The fearmongers of anarchism have prevailed over the Constitution though. The constitutionalized role of the criminal jury as a check and balance is a forgotten one because an overwhelming consensus has rewritten the Constitution. That consensus, however, has deprived us of a crucial check on governments that grow more aggressive and heavy-handed in their prosecutions of our fellow citizens by the day.

The United States Supreme Court has an opportunity to revive this forgotten check and balance and will begin consideration of it on October 30, 2020. The pending petition for review on this topic is Manzano v. United States. I look forward to arguing for the revival of a crucial part of our system of self-government, which is vital to all of our individual liberties, if the Court chooses to grant our petition.

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