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 as given by the court. Today, however, in assessing the constitutionally protected right to criminal jury trial, the Supreme Court has emphasized originalism, delineating the right's current boundaries by the Founding-era understanding of it. Relying on this Supreme Court 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 thus should be restored. But originalists who advocate restoration of the right to nullify are missing an important constitutional moment: Reconstruction. The Fourteenth Amendment fundamentally transformed constitutional criminal procedure, in the process altering the relationship between the federal government and localities and between federal judges and local juries. This Article (1) responds to what is an emerging consensus among these commentators that the Supreme Court's prohibition of jury nullification cannot be justified on originalist or historical grounds and (2) provides new evidence of how the Fourteenth Amendment's Framers, ratifiers, original interpreters, and original enforcers thought about juries, evidence that differs from the traditional perspective that the Reconstruction Congresses intended to empower juries. It finds that the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury's historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights 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, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional. Thus, the Reconstruction Congresses, through the Fourteenth Amendment and its enforcement legislation, may have provided a constitutional basis for the nineteenth-century judicial precedent that had disallowed the jury's right to nullify. Although no single account can definitively capture "original meaning," this Reconstruction-era history provides a new original understanding of a contemporary dilemma in constitutional criminal procedure.
"Reconstruction and the Transformation of Jury Nullification,"
University of Chicago Law Review: Vol. 78
, Article 1.
Available at: http://chicagounbound.uchicago.edu/uclrev/vol78/iss4/1