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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 14



By now, it should be no secret to the reader that this writer holds our Founding Fathers in the highest esteem and that he has a very deep respect, and even awe, for their insight on the relationship of the human condition as it relates to governance.  It is next to impossible for me to believe they merely “got lucky” in their assessment.  Instead, it seems to me that they had a grasp of human behavior at least the equal of anything that passes for knowledge on the subject today.  Mr. Jefferson apparently recognized the need, even at that early date in this country’s history, for government to be “held” to the stated principles of its constitution.  Please allow me to speculate on why he thought thus.  Basic human nature changes very little, if at all, over relatively long periods of time.  The people of his day behaved little differently than the people of two hundred years prior to then, or for that matter, the people at the time of the Pax Romana, two thousand years earlier than that — or, as much as we would like to think differently, to the people of the two hundred plus years since then. 


Power corrupts, and absolute power corrupts absolutely.  (Lord Acton).


I don’t know if this maxim held sway in Jefferson’s time, but I strongly suspect that he was aware of the actuality.  Our need to be aware of this shortcoming of human nature and the further need to “hold” governments to the principles of their constitutions has not been obviated with time.  It is as crucial today as ever, maybe more so.  Therefore, with wisdom and the experience of the day, our Founding Fathers bequeathed to us the jury as the “anchor,” the tool, the mechanism most effective, in their mind, by which “we the people” might contain the impulses of an overreaching government.  You’re probably asking yourself, “How in the world can the little old jury begin to do that?”  Truth to tell, suppressed by the restriction the jury struggles beneath today, it can’t.  Just what is the restriction that negates a jury’s power to hold the government accountable?  It is the wrong-headed instruction from our courts (judges) that the jury does not have the right to judge the validity of the law itself; or, if the law is indeed valid, if it is being applied justly in the case at hand.


Before we proceed as to how this situation might be corrected, let’s look at a couple of examples to illustrate the prior points.  We’ll look first at a real, though unbelievable, case of unjust application of the law, and then a hypothetical, but only slightly far-fetched, example of an invalid law.  This is a true case.  It was decided in Benton County, Iowa, in November of 1996, and although I don’t have the trial transcript in front of me for absolute accuracy, the story is substantially accurate.  Approximately two years before the ruling, a local man, over his objection that he was not the father of the child, was ordered to make child-support payments, as is allowed for in the Iowa Code.  You say this seems to be a valid law, and so it is.  “And now,” as Paul Harvey says, "the rest of the story.”  


The man went back to court, whereupon he provided DNA evidence (the kind that was used unsuccessfully to prosecute O. J. Simpson) which showed that he, in fact, was not the father of the child in question.  Though I cannot quote the judge exactly, his ruling stated something like this:  “Sir, you have proven to me, beyond a shadow of a doubt, that you are not the father of the child.  What you have not proven to me is that it is in the best interests of the child for you to not make the child-support payments.  Therefore, you will not recapture the last two years of child-support payments you have made, and you will continue to make these child-support payments.”  Now do you think this to be a just application of the law?  If not, what can you do about it?


Our next consideration will be of the hypothetical invalid law.  This is going to be a trial by jury, and you are going to be impaneled on that jury.  Here are the facts:  The House of Representatives, with the Senate concurring, has passed a “law” that the President of the United States has signed.  In other words, this resolution is now public policy — the “law of the land.”  It reads in part as follows:


Whereas the earth’s resources are finite and; Whereas the earth’s population levels are at an unsustainable level and; Whereas it is the duty of every citizen to bequeath to future generations a readily habitable environment; We therefore, being in Congress assembled, do solemnly and regretfully ordain that:


1) No family will be allowed more than two children; and
2) When parents have attained the age of seventy years, it will fall to the eldest child, the responsibility for the humane euthanasia of that parent within 90 days.
3) Penalty for non-compliance is forfeiture of your own life.


Now comes someone from your state before the court in which you are impaneled as a jury member.  He is charged with willfully breaking this “legally” enacted law of our land.  The proof — his father has been subpoenaed to the courthouse chamber, and there his father sits, being seventy years plus one hundred days of age.  You receive the facts of the case, and the judge sends you off to deliberate with these instructions:


The law is the province of the court, and you will exercise the law as I instruct you on it.  The law in this case (see above) is very clear and self-explanatory.  The facts of the case are the province of the jury.  Your sole purpose is to ascertain the facts of this case and to judge whether the defendant did or did not comply with the law.  If the defendant did not comply with the law, you must find him guilty.  (This jury instruction may not contain absolutely precise wording, but the thrust of the jury’s charge is very common in today’s courtroom.)


With that, you’re off to the jury room, where you are promptly elected as jury foreman.  There is little to discuss, as there are no facts in dispute.  You have read the “law” for yourself; the father is of an age greater than seventy years plus ninety days, and with your own eyes you have seen him sitting before you, alive, in the courthouse.  You take your vote and return to the courtroom.  The judge says, “I assume from your return you have reached a verdict.  Mr. Foreman, what say you, guilty or not guilty?”  If you followed the judge’s instructions to judge only the facts of the case and not the validity of the law itself, the son is clearly guilty of not following the law as it was written.  Does this offend your sense of justice?  Again, what can you do about it?


Yes, this is a truly draconian example.  You think it can’t happen in this country.  I pray you are correct in your determination.  May I remind you of an ugly episode in the not-so-distant past, namely the Third Reich?  These friendly folks did nothing illegal.  They strictly abided by the “laws” of Germany.  They legislated the law as they saw fit to produce the results they desired, and they enforced it through their government courts — all on the up and up, of course.  Though the people of Germany could vote, it seems clear this was of little effect or even very meaningful in maintaining control of their government.  It is not my intention to impart any kind of parity between the government of the Nazi regime of Germany and our government today, except this:  without "we the people" having the final check on our government by means of judging the very law itself in our courts of law, we open the door for serious government mischief.  We cannot tuck our children into bed at night with the soothing words, “everything will be all right,” because we really don’t know that with any degree of certainty.


Dear reader, this is the overwhelming circumstance in our courts today, whether you want to believe it or not.  Very few sitting judges will even allow the jury to be told they have the power to judge the law, much less the right and, yes, the obligation to judge the law.  It was not always so.  There was a time in our history when the jury’s acquittal in cases such as these was to be expected.  What they did has come to be called “jury nullification.”  By acquitting the defendant, they nullified the effect of the law on the case at hand.  In their search for justice, what they rejected was not law itself, but blind obedience to the law when it would produce injustice; or when the “law” (read legal code) was itself not lawful, when the legal statute was not in conformity with the “Laws of Nature and of Nature’s God” — as is obvious in the above example.  Thank God for their courage.


I will attempt to provide you with some outside sources as a foundation for the ideas presented.  This is to offer some proof that these ideas are not solely the wild ideas of some unqualified madman.  The sources will be duly noted, and if you will make the effort, you will be able to find them and read them for yourself.  Because the jury’s right to judge the law is not universally accepted today, it is necessary to show that this tenet of our law has a long history and that little mischief and much good has been done on account of it.  Later in this chapter, we will discuss a very important case pertaining to this matter.  It is mentioned here because it contains a much more extensive and very learned discussion of this subject.  It is the case of Sparf and Hansen v. United States, October term 1894 (156 U.S. 51, 15 S. Ct., 273, 39 L. Ed. 343 (1895)).  You will find the dissenting opinion of Mr. Justice Gray most interesting.




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