Judicial Review: Courts' Power To Nullify Laws

Jury nullification is a discretionary act where a jury can acquit a defendant even if they believe beyond reasonable doubt that the defendant broke the law. Jury nullification is not a legally sanctioned function, and it is considered inconsistent with the jury's duty to return a verdict based on the law and facts of the case. Jury nullification has occurred in several countries, including the United States, Canada, and England, and has a historical basis in colonial America and the 12th century, respectively. Jury nullification can also occur in civil trials, and while judges can instruct juries to act as finders of fact, they are not allowed to question the law itself. The power to declare federal laws unconstitutional lies with the federal courts, and states do not have the power to nullify these laws.

Jury nullification

The concept of jury nullification has a historical basis, particularly in colonial America, where juries used it to protest against the British by acquitting defendants. Similarly, in the 1800s, abolitionists refused to convict people under the Fugitive Slave Clause, which compelled citizens to assist in the apprehension of runaway slaves. Other examples include the prohibition of alcohol and draft evasion during the Vietnam War. Jury nullification is often seen as a safeguard against wrongful imprisonment and government tyranny, but some view it as a violation of the right to a jury trial and the oath sworn by jurors.

State nullification

The concept of state nullification was first introduced in the Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison. They argued that the states formed the Constitution as a "compact", delegating certain powers to the federal government while retaining all other powers for themselves. According to this theory, states have the right to interpret the Constitution and can declare federal laws unconstitutional if the federal government exceeds its delegated powers.

However, federal courts, including the U.S. Supreme Court, have consistently rejected the theory of state nullification. They have held that under the Supremacy Clause of the Constitution, federal laws are superior to state laws and cannot be negated by states. The power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states. This view is supported by the text of the Constitution, which states, "We the people of the United States...", indicating that the federal government was established directly by the people, not the states.

There have been several prominent attempts at state nullification in American history, including Kentucky's attempt to nullify the Alien and Sedition Acts in 1798, South Carolina's attempt to nullify two federal tariff laws in 1832, and Arkansas's attempt to nullify Brown v. Board of Education in 1954. In each case, the legitimacy of state nullification as a constitutional theory was rejected.

Judicial tyranny

The concept of "judicial tyranny" is not new, with Thomas Jefferson and other Founding Fathers expressing concern about it being the biggest threat to the Republic. In the book *Judicial Tyranny: The New Kings of America?*, Mark Sutherland and other authors argue that the US Supreme Court and federal judiciary have overstepped the bounds of their constitutional authority. They claim that the judiciary has become too powerful and is imposing its will on the people, which is out of touch with American values and sensibilities.

One example of this is when a single federal judge can overturn a presidential executive order, as seen with immigration policy. This is seen as a violation of the Separation of Powers clause, as immigration policy falls under the Executive Branch's foreign policy responsibilities. The book also highlights how judges routinely prohibit informing juries about "jury nullification", which is a jury's deliberate rejection of evidence or refusal to apply the law because it goes against their sense of justice, morality, or fairness.

The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts in England used juries composed primarily of "laymen" from the local community, providing an efficient means of dispute resolution. In the US Founding Era, it was standard practice to argue all issues of law in the presence of the jury, but this has been largely forgotten today.

The Supreme Court has also played a role in interpreting the Constitution and federal treaties, such as in the case of Georgia's attempt to nullify federal treaties with the Cherokees. The Court held that Georgia's laws were "void" and that the federal government had exclusive authority over Indian affairs. This case demonstrated the Court's power to interpret the Constitution and reject a state's attempt to nullify federal law.

While the book *Judicial Tyranny* presents a critical view of the judiciary's power, it also offers solutions to restrain an overactive judiciary and restore the balance between the three branches of government.

National injunction

In United States law, a national injunction (also referred to as a universal injunction or nationwide injunction) is a form of injunctive relief in which a court binds the federal government even in its relations with nonparties. In other words, a national injunction restricts the federal government from enforcing a statute or regulation against anyone, not just the parties in a specific case.

The use of national injunctions has been a source of controversy in recent years, with lower federal courts issuing dozens of such injunctions to block government policies. For example, during the Obama administration, national injunctions were used to stymie policies on healthcare, immigration, and employee overtime programs. Similarly, the Trump administration faced national injunctions on policies regarding immigration, transgender people serving in the military, and federal funding for sanctuary cities, among others.

Critics of national injunctions argue that they encourage forum shopping, hinder the development of law, and politicize the judiciary. On the other hand, supporters view them as a crucial check on executive authority, which has expanded under recent presidents.

Historically, the use of national injunctions was rare, with some scholars estimating that American federal courts issued zero or a dozen such injunctions in the first 175 years of the republic. However, there are also examples of national injunctions being used during this period, such as in the 19th century when courts enjoined municipalities or counties from enforcing challenged taxes or ordinances against nonparties.

The legality of national injunctions remains a subject of debate, with some questioning the power of a court to enjoin a defendant from enforcing the law against entities and individuals not before the court.

Court interpretation

The concept of jury nullification is a highly debated topic in the US legal system. Jury nullification occurs when a jury returns a "not guilty" verdict, even if they believe beyond a reasonable doubt that the defendant broke the law. This can be due to the jury's sense of justice, morality, or fairness, or to send a message about a larger social issue. While jury nullification is not a legally sanctioned function, it is a discretionary act that has been recognised by some courts. For example, in the case of U.S. v. Moylan, the Fourth Circuit Court of Appeals affirmed the power of jury nullification but upheld the court's right to refuse to instruct the jury on this.

The historical basis for jury nullification can be traced back to colonial America, where juries used it to protest against the British by acquitting defendants. Similarly, in the 1800s, abolitionists refused to convict people under the Fugitive Slave Clause, which compelled citizens to assist in the apprehension of runaway slaves.

In modern times, the role of juries has evolved, with judges often instructing them to act as "finders of fact", responsible for evaluating the evidence and applying it to the law, without questioning the law itself. Despite this, jury nullification continues to be a subject of discussion, with some arguing for the right to nullify unjust laws.

In terms of the power to nullify laws at the state and federal level, the US Constitution, as interpreted by the federal courts, does not grant this power to the states. The Supremacy Clause of Article VI establishes the superiority of federal laws over state laws, and the federal government is considered superior in certain aspects. This interpretation asserts that the Constitution was established directly by the people, rather than as a contract among the states.

In summary, while jury nullification is a recognised concept in the US legal system, it is not officially sanctioned, and the courts have the power to refuse to instruct juries on this right. Additionally, the federal courts have interpreted the US Constitution as not granting states the power to nullify federal laws, asserting the supremacy of federal laws and the federal government in certain areas.

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