A peal of alarm bells shattered the brisk yet tranquil Saturday morning in Boston on February 15, 1851. A mob had stormed the local courthouse in an effort to rescue fugitive slave Shadrach Minkins from being returned to slavery under the newly strengthened Fugitive Slave Act of 1850.¹ Intended to mend the growing North-South divide, the Act required Northern states to assist in the return of slaves to Southern states and ostensibly represented a compromise between the two increasingly hostile halves of America. The mob succeeded, and Minkins was soon well on his way to freedom in Canada. Fearing major public embarrassment as one of the act’s sponsors, U.S. Secretary of State Daniel Webster ensured those who had stormed the courthouse to free Minkins would be prosecuted to the fullest extent of the law. In turn, federal agents quickly arrested and a federal grand jury indicted each of the seven co-conspirators. However, despite the U.S. government’s robust case and the defendants’ obvious guilt—numerous eyewitnesses identified them—no jury would enter a conviction; each time a jury returned unable to reach a unanimous verdict or acquitted the defendants outright.²

In each case, the jurors could not bring themselves to convict someone under an act they felt was immoral. To many, especially those in abolitionist-leaning Boston, the Fugitive Slave Act was morally reprehensible, and the juries’ actions suggest they believed they could decide whether to apply the law, irrespective of facts—a right referred to as jury nullification. Prima facie, such a right would seem antithetical to our contemporary understanding of juries as limited to verifying facticity (did the defendant do what is alleged), rather than interpreting the law. This interpretation of juries dates back to judicial developments in the mid- and late-nineteenth century, when the power of juries to decide matters of law was largely excised from the American legal system. However, the stark contrast between the function of juries in 1850 Boston as compared to their function today raises an important question: do juries have a constitutional right to decide matters of law?

To answer this question, this essay unfolds in three parts. Section One outlines jury nullification as a fundamental right of juries during the American Revolution and the Early Republic, demonstrating its deep roots in English common law, later enshrined within the Sixth Amendment of the U.S. Constitution’s original meaning. This section also charts the demise of jury nullification during the 19th century, culminating with the Supreme Court’s repudiation of the right in Sparf and Hansen v. United States (1895). Section Two examines the modern debate regarding jury nullification, responding to the claims of scholars like Jonathan Bressler who argue both that the Fourteenth Amendment altered the rights of juries and that, consequently, it provides an alternate location from which to draw originalist meaning about jury rights. Through analyzing additional evidence, Supreme Court doctrine, and contradictory evidence within Bressler’s own work—notably challenging how Bressler’s arguments about congressional intent, incorporation, textual language, and the right to protection would be interpreted by the modern Court—this article argues the originalist meaning of a “jury” still lies firmly in the text of the Sixth Amendment. Finally, Section Three examines jury nullification in the context of modern Supreme Court doctrine and suggests the Court, if it were to remain faithful to its precedents, must overturn Sparf and restore the power of juries to engage in nullification. Originalism, as articulated by the Court in comparable Sixth Amendment cases, entitles juries to rights that an ordinary American would have understood them to possess when the Sixth Amendment was ratified. That they must have the power to nullify is, consequently, an inescapable conclusion.

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I. A HISTORICAL OVERVIEW

In this section, I provide a historical overview of jury nullification to ground the originalist reading I present later in this article. Precedents for jury nullification abound in English and colonial American history, dating as far back as 1670 England. In one famous instance, William Penn, a leader of the local Quaker community who would later found the colony of Pennsylvania, was among the three to four hundred Quakers who flocked to Grace Church Street, London. Local police were quick to intercept this large gathering and promptly locked the congregation out of their place of worship. Undeterred, Penn preached to his fellow Quakers in the street, but in doing so violated the English 1664 Conventicle Act, which criminalized any religious gathering of more than five people that did not comply with the Anglican Church’s teachings. Unsurprisingly, the police charged Penn with unlawful assembly and disturbing the peace. 

While the persecution of Quakers was commonplace during this period, the trial of Penn was extraordinary. Specifically, the jury, initially unable to reach a consensus, eventually decided to find Penn and his co-defendant, William Mead, guilty only of speaking in the street. Wanting a full conviction on all charges, the judge, Thomas Howell, refused to accept the verdict. The jury deliberated again, this time finding Penn guilty only of speaking to an assembly. The judge, still dissatisfied with the verdict, ordered the jury to be imprisoned “without meat, drink, fire, and tobacco,” stating that “we will have a verdict, by the help of God, or you shall starve for it.”³ After three days of deliberations in grueling conditions, the jury returned for a final time with a shocking verdict: they found Penn innocent on all charges.⁴

Exasperated, the court punitively fined jurors and ordered them imprisoned until the fine was paid. Edward Bushell, a juror in the case, refused to pay the fine and subsequently petitioned for a writ of habeas corpus ad subjiciendum to free him from his imprisonment. In response to the petition, an opinion by the Court of Common Pleas affirmed the right of juries to render a verdict without fear of judicial retribution and regardless of the court’s view on the matter. This case, which gave juries the “practical power to deliver a verdict based on their conceptions of justice,” is widely cited as the basis for jury nullification.⁵ Juries could enter a verdict of innocence even if doing so would clash with the court’s understanding of the law, meaning that the practice of jury nullification and of judicial deference to juries began well before the U.S. Constitution was even conceptualized.⁶ 

After that case, jury nullification gained prominence in the American colonies: colonial juries actively employed jury nullification as a form of resistance to unpopular British laws. For example, juries would refuse to convict defendants in violation of the Navigation Acts, acts designed to prevent colonial merchants from trading with entities other than England. Colonial juries who vehemently opposed what many colonists saw as unjust attempts by the British parliament to control colonial trade simply released impounded ships.⁷ Perhaps the most significant pre-Revolutionary case involving jury nullification was that of John Peter Zenger, who was arrested for printing seditious libel. Zenger’s attorney told the jury that they ought to find Zenger innocent if they disagreed with the law, arguing that the members of the jury had the power to decide both the facts and the law. Zenger’s attorney pleaded, “In your justice lies our safety,” and the jury ultimately found Zenger innocent of the charges against him, thereby refusing to apply the law even when the facts supported conviction.⁸ Consequently, by the time of the American Revolution, the concept of jury nullification was a well-established practice in both the English and colonial legal systems.

Revolutionary Americans, including the Founding Fathers, widely believed that jurors had the power—even the duty—to decide cases based on their consciousness, regardless if it meant their verdict was contrary to how the court interpreted the law in question. In fact, historians almost universally believe that at the time of the Constitution’s ratification, the right to nullify was inseparable from the definition of a jury.⁹ To support this conclusion, historians have examined three main sources of evidence: first, the quotes of the Framers and other notable early Americans regarding the jury’s right to decide matters of law; second, law books and dictionaries which explicitly stated juries could make decisions based on both the facts and the laws; and, third, existing precedent where jurors had exercised their right to nullify. John Adams famously said: 

Now should the Melancholly Case arise, that the Judges should give their Opinions to the Jury, against one of these fundamental Principles, is a Juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.”¹⁰ 

Adams’ claim was not radical; rather, he articulated what the vast majority of Americans viewed as the role and responsibility of a jury. 

As such, the right of juries to engage in nullification—a power seen as a fundamental and important protection against government overreach—was codified in the Constitution and the nascent U.S. legal system. Thus, when the Framers guaranteed a right to trial by jury in the Sixth Amendment, they guaranteed the right for a jury to decide the law—to judge according to their conscience, rooting the right of a jury to engage in nullification in the vert definition of a jury in the Sixth Amendment. 

Moreover, in at least the two decades following the founding of the United States, jury nullification was a widely accepted principle and one which was inseparable from the definition of a jury. This conception of a jury was affirmed in Georgia v. Brailsford (1794), an original jurisdiction case heard by the Supreme Court, in which Chief Justice John Jay instructed the jury that “you have, nevertheless, a right… to determine the law as well as the fact in controversy.”¹¹ This instruction from the Chief Justice both underscores the ubiquity of the belief that juries had the right to determine matters of law and sets an important Supreme Court precedent that this right is codified in the Sixth Amendment. Similarly, the 1798 Sedition Act provides further support for the right of Revolutionary-Era juries to engage in nullification, since its third section states that “the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.”¹² While the Sedition Act has no bearing on the more general constitutional rights of juries, the act nonetheless highlights how lawmakers (representative of the general voting public) viewed the role of juries within the American legal system. 

In the 19th century, however, a shift away from this universal acceptance began as judges questioned the nullification powers of juries, with some even erroneously curtailing a jury’s power to nullify altogether. Some of the earliest court cases limiting the role of juries came from Supreme Court Justices riding the circuit, during which they would preside over lower courts. Perhaps the most important of these early instructions came when Justice Joseph Story presided over United States v. Battiste (1835) while riding circuit in Massachusetts.¹³ In this case, a sailor working in the slave trade was charged with piracy. Given that the trial was taking place in Boston, the center of the abolitionist movement, and the defendant worked on a ship transporting slaves across the Atlantic, Justice Story was perhaps concerned that the jury would enter a baseless conviction as a commentary on slavery itself. Thus, Justice Story declared that juries did not have a right to deliver verdicts according to their consciences and that the defendant has a right to be judged only by the interpretation of the law set forth by the court. Until this case, no judge had gone so far as to expressly curtail the power of juries.¹⁴

Justice Story was not alone, however, and this case marked a major turning point in the development of jury powers in the 19th century, ushering in an era in which judges curtailed and restricted the power of juries to nullify laws or render a verdict according to their consciences. For instance, Justice Benjamin R. Curtis, when confronted with a more direct argument in favor of nullification while presiding over a case regarding the Fugitive Slave Act in 1851, ruled similarly to Justice Story. Despite an argument from the defendant’s lawyer that the jurors had the right to refuse to enforce the law if they disagreed with it, Justice Curtis declared that if jurors were able to decide matters of law, they could theoretically overturn Supreme Court decisions, a proposition that would violate the 1802 Judiciary Act stating Supreme Court decisions were final.¹⁵ 

During this time, judges around the country even curbed the powers of juries against the expressed will of legislatures. During the 1850s, state courts across the country began to follow the lead of federal courts with regard to limiting or prohibiting jury nullification.¹⁶ It is worth noting that, at the time, there was no federal requirement imposed upon the states that allowed or required their juries to decide matters of law—that was a matter for states themselves to decide via their constitutions. However, states, such as Massachusetts, tried to resist the loss of this power for juries through constitutional amendments at the state level. Specifically, Massachusetts passed an amendment affirming the right of juries to decide matters of law in response to the state’s highest court finding juries could not.¹⁷ However, the same court, immediately after the amendment was adopted in 1855, interpreted it in such a way to subvert its intended effect and again remove the right to nullify from the state’s juries. Judges thereby began to repudiate juries having this right in the middle of the 19th century, despite its being a constitutional right at the federal level, and, here, at the state level as well.¹⁸

However, judges may have had legitimate reasons for wanting to curtail a jury’s right to nullify laws, despite the unconstitutionality (from an originalist standpoint) of doing so. In part, increasing professionalism in the legal field and more formal legal training for judges led many jurists to believe they were more qualified to answer questions of law than lay juries.¹⁹ For the legal system as a whole, having judges determine matters of law also made the legal system more uniform, stable, and knowable.²⁰ In the minds of many judges, their decisions would be less subjective than those of legally unqualified, lay people. Compounding this thinking, since many early Americans saw jury nullification as a fundamental right, many judges likely did not feel the need to inform juries of a power that jurors would know they already had. Over time, as new generations of Americans and judges became involved in the legal system, this assumptive approach harmed that power because nullification had fallen out of common practice. Furthermore, the right for juries to decide matters of law was originally an important defense against government encroachment on the rights of citizens—something of consequential importance when America was a collection of British colonies ruled by a parliament across the ocean in which they had no representation. The founding of the United States and its democratic systems made, in the minds of some Americans, the right of juries to nullify laws no longer necessary: if people were unhappy with the laws, they could respond with their ballots.²¹

This 19th century transformation of jury rights culminated in Sparf and Hansen v. United States (1895), a seminal 5-4 Supreme Court ruling limiting the scope of jury responsibilities to just that of finder of fact, concluding that “it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court.”²² In reaching its decision in Sparf, the Supreme Court relied heavily on the decisions of Justices Story and Curtis as well as Massachusetts’ highest court’s decision in Commonwealth v. Anthes (1855), which the Court believed offered the fullest examination of the topic. Sparf therefore represented a major codification of the judicial trends formed during the prior half century, in essence cementing what had become the status quo with respect to jury power.²³ In making this decision, however, the Court neglected historical evidence that the Framers of the Constitution enshrined the law-deciding power of juries in the Bill of Rights.²⁴ In addition, the court’s decision underscored the growing power of the judiciary—a single branch of the U.S. government composed of unelected judges. While there is little doubt the Sixth Amendment guaranteed the right of jury nullification to Americans through the prevailing definition of a jury at the time, the judiciary disregarded these facts in favor of augmenting its own power to determine matters of law. 

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II. THE MODERN DEBATE

Sparf remains the precedent prohibiting juries from having the right to decide matters of law, but historians have recently debated its constitutionality under originalist doctrine. Originalism as a theory argues for interpreting the words of the Constitution based upon the original meaning that they bore when written and has become the interpretative judicial philosophy favored by today’s Supreme Court. This originalist perspective is typically associated with a politically conservative viewpoint whose proponents seek to adhere to the plain and historical meaning of the Constitution.

More traditional jury nullification scholars tend to claim that, because jury nullification was intrinsic in the Revolutionary-Era definition of juries, it was wrong for Sparf to remove that power, and therefore it should be restored. This view, while seemingly radical when compared to contemporary understandings of juries, has actually circulated for decades and has gained traction among scholars.²⁵ More recently, a new contrarian view has emerged from legal scholars like Jonathan Bressler, who argues that Sparf’s prohibition of jury nullification was, in fact, correct. By examining congressional intent, Bressler argues that the Fourteenth Amendment’s Due Process Clause included the right to criminal jury trial and essentially “updated” the definition of what a jury was for both states and the federal government. Thus, he argues the Fourteenth Amendment allows “Sparf’s holding [to] be justified on originalist grounds” that would be more relevant and applicable than the intent of the Constitution’s Framers.²⁶

1. WEIGHING THE RECONSTRUCTION CONGRESS

Bressler’s argument regarding the Fourteenth Amendment and jury nullification may initially seem a compelling rationale for the modern Supreme Court to uphold Sparf, but when viewed in the context of contemporary Supreme Court case law and doctrine, his argument becomes far less persuasive. While Bressler’s work provides numerous important insights into the Fourteenth Amendment, its congressional intent, and juries during Reconstruction, his argument that the Fourteenth Amendment could provide an originalist basis for the modern Supreme Court to uphold Sparf is unconvincing. Bressler argues that the Reconstruction Congress believed juries did not have a right to nullify laws—a belief that Bressler avers was inherently implanted into the Constitution with passage of the Fourteenth Amendment. According to Bressler, “[t]he Reconstruction-era congressional debates suggest that most members of Congress, and particularly Republicans who designed the Fourteenth Amendment’s agenda, understood the right to criminal jury trial not to include the jury’s right to nullify.”²⁷ To further his argument, Bressler presents many quotations from members of Congress—such as Senators Lyman Trumbull, Charles Sumner, and William Morris Stewart—that point to a general understanding that they believed juries were limited to only finders of fact.²⁸ Yet, the fact that individual congressmen held those beliefs does not necessarily mean that the Fourteenth Amendment was in fact imbued with Congress’ contemporaneous definition of a jury.

While Bressler effectively illustrates that the Reconstruction Congress likely did not believe a jury to have the right to engage in nullification, historians must also consider whether the goal of the Fourteenth Amendment was, in fact, to enact such a belief. Ohio Representative John Bingham conceived and drafted the amendment, but believed that the Fourteenth Amendment would require the states to protect the rights guaranteed in the Bill of Rights. Bingham explained as much in Congress: “It has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution.”²⁹ He viewed the Fourteenth Amendment as a way “to arm the Congress of the United States… with the power to enforce the Bill of Rights as it stands in the Constitution today.”³⁰ Bingham therefore saw this amendment as doing no more than simply allowing Congress to enforce the Bill of Rights against the states. Bingham’s motive and intent was clear: it was not to alter or incorporate only parts of the Bill of Rights, nor to exclude certain parts either. He wanted to make the whole Bill of Rights enforceable against the states. Who better to opine on the Fourteenth Amendment’s intent than the drafter of it himself? Thus, even if certain congressmen did not believe juries had the right to decide matters of law, that was never the intent of the Fourteenth Amendment and, thus, never enshrined within its original meaning.

In addition, given that the Fourteenth Amendment was no ordinary bill—it was an amendment to the Constitution—Bressler’s analysis excludes an important piece of the conversation: the states. Since states have as much, if not more say in the passing of an amendment than Congress, it is critical to understand how state legislatures understood the rights of a jury. In fact, there are numerous examples of states actively working to uphold the right of juries to nullify laws, both before and after the Fourteenth Amendment’s ratification. Notably, Pennsylvania, Vermont, and Connecticut did not prohibit jury nullification until more than forty years after Reconstruction—long after the Fourteenth Amendment was adopted.³¹ Furthermore, after Massachusetts’ highest court declared juries did not have a right to nullify laws, and after passage of the Fugitive Slave Act, the state’s legislature dissented and passed a statute in 1855 reaffirming the right for juries to nullify laws as a form of resistance to both recent developments.³² These examples illustrate that at least a handful of state legislatures did not believe the Fourteenth Amendment prohibited nullification, since years later, those states were still adopting new laws that confirmed this right. Presumably, state legislators did not believe they were violating the Fourteenth Amendment. When viewed in this context, it becomes more challenging to claim that such a prohibition was the intent of the Fourteenth Amendment, since several influential states who ratified the amendment evidently did not share that understanding. Moreover, their continued acceptance of jury nullification sheds light on the original public meaning of the Fourteenth Amendment; ordinary citizens clearly did not intercept the amendment to abrogate this right. Therefore, given Bingham’s intent with regard to the amendment and that the legislatures of several states themselves disagreed with the principle of removing a jury’s right to decide questions of law, Bressler’s claim that the Fourteenth Amendment was fundamentally imbued with a prohibition of jury nullification becomes difficult to justify. Rather, as Bingham intended, the Fourteenth Amendment simply applied the Bill of Rights wholesale—jury nullification and all.

2. INCORPORATION OF FOUNDING-ERA MEANING

However, assuming for the sake of argument that the authors of the Fourteenth Amendment did intend to prohibit nullification via the Fourteenth Amendment, it is worth considering whether the Supreme Court would actually incorporate that change. The Fourteenth Amendment itself says nothing about the right to trial by jury. Instead, legal scholars and judges broadly agree that the right to a trial by jury in criminal cases is applied and enforced against the states (“incorporated”) by means of the Fourteenth Amendment’s Due Process Clause. Bressler, however, believes that blindly taking the contents of the Bill of Rights and applying them to states does not make doctrinal sense, arguing that under Supreme Court precedent, the intent of the Fourteenth Amendment’s framers ought to be incorporated against the states, even if it is at odds with the Bill of Rights. Bressler cites the case Harmelin v. Michigan (1991) as an example of the Supreme Court’s refusal to apply an older definition of a legal term to a more modern use.³³ In this case, the Court wrote in the majority opinion that “Unless one accepts the notion of a blind incorporation, however, the ultimate question is not what ‘cruell [sic] and unusuall [sic] punishments’ meant in the [English] Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment.”³⁴ While the relationship between the English Declaration of Rights and the U.S. Constitution’s Eighth Amendment in this matter may seem similar to the relationship in question, it is hardly an apt comparison. In creating the U.S. legal system, the intent of the Constitution’s Framers mattered since they were building a new legal framework from the ground up: there was no body of American jurisprudence that would have given specific terms any special significance. This is not the case with regard to the Fourteenth Amendment, which was created as an addition to an existing legal framework with already defined terms and widely accepted principles. The Supreme Court, therefore, would not rely on the Congressional intent behind the Fourteenth Amendment when determining the meaning of phrases such as “due process”; rather, they would look to the existing Constitution.

Indeed, the Supreme Court has itself made this point. In Adamson v. California (1947), the Court rejected the idea of basing what was incorporated against the States on congressional intent.³⁵ This case is one of many that created the doctrine of selective incorporation, whereby the Court would incorporate pieces of the Bill of Rights one at a time if the Court ruled they met the aforementioned standard. Despite understanding that Congress and the framers of the Fourteenth Amendment wanted to incorporate Amendments One to Eight against the states, the Court ruled that it only would incorporate protections which are “of the very essence of a scheme of ordered liberty.”³⁶ 

Similarly, the Supreme Court applied this doctrine in Duncan v. Louisiana (1968) when it incorporated the right to jury trial against the states. In the majority opinion, Justice White wrote that “the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.”³⁷ Furthermore, the Court applied, among others, the standard of whether the right in question was “a fundamental right, essential to a fair trial.”³⁸ As such, the Court ruled that the right to a trial by jury was incorporated under the Fourteenth Amendment and, thus, protected against state action. The Court would not agree with Bressler’s assessment: the intent behind the Fourteenth Amendment would not and does not impact what is or is not to be incorporated—that was a matter for the Court to determine. 

Importantly, the Court in part based its verdict on the founding-era and pre-founding era history of juries, finding juries to have been established for centuries before the Constitution and that they were a “protection against arbitrary rule.”³⁹ There are two notable elements in this conclusion. First, the Court’s mention of protection against arbitrary rule goes to the heart of jury nullification, which Revolutionary-Era Americans saw as a defense against oppressive laws. Second, the Court bases its understanding of the importance and significance of juries in founding-era originalism—a time in which nullification was inseparable from the concept of a jury. Thus, this case demonstrates that the Supreme Court relied on the founding-era intent and meaning when evaluating the incorporation of jury rights and that the Court believed juries to have played an important role in resisting government incursions on the rights of the governed. Therefore, in determining whether the congressional intent behind the Fourteenth Amendment ought to be considered and incorporated against the states, the Supreme Court has been clear: it is not. Items from the Bill of Rights are incorporated against the states via the Fourteenth Amendment with the intent present at their original creation by the Constitution’s Framers, not the amendment’s.

3. CANONS OF STATUTORY CONSTRUCTION AS A GUIDE

Beyond precedent, the principles of statutory construction also serve to guide Fourteenth Amendment interpretation. The Supreme Court is often responsible for statutory construction—the process of deriving meaning from laws so that the Court can apply them properly. Consequently, a wealth of doctrine exists to aid both the Supreme Court and the lower courts in doing so correctly. These principles and standards for construction, while normally used in the context of statutes, are equally applicable to the Fourteenth Amendment in relation to jury rights. Evaluated under this doctrine, the Court today would not, as Bressler suggests, view the Due Process Clause of the Fourteenth Amendment as intrinsically stripping the right to nullify, assuming, arguendo, that such stripping was even the intent of the Fourteenth Amendment. In determining statutory meaning, the Court often relies on the “Canons of Construction,” a series of rules and interpretive standards which the Court uses to derive meaning from laws, and which shed light on the correct meaning of the Fourteenth Amendment in relation to jury rights.

The Fourteenth Amendment ought to be interpreted as one document with the rest of the Constitution for at least one of two reasons: either because amendments are simply additions to the original Constitution or because the in pari materia canon states that related statutes ought to be interpreted together, as if one.⁴⁰ As one document, the presumption of consistent usage assumes that phrases mean the same throughout a text or related texts.⁴¹ Thus, “due process” would have only one meaning within the context of the Constitution, so if Congress wanted to impute a different meaning, it would have needed to use a different term to convey that. Furthermore, the “presumption against implied repeal” canon states that for a legal provision to be repealed, it must be done so explicitly. In practice, this means judges should not interpret vague statutes to repeal pre-existing ones.⁴² If the Reconstruction Congress wanted to overturn the right to nullify and remove it from the concept of “due process,” at least with respect to states, this canon suggests it should have done so explicitly.

Even if Congress had intended to remove nullification via the Fourteenth Amendment, as the Canons of Construction show, the Supreme Court would not believe the amendment to have that effect. In Independent Insurance Agents of America, Inc. v. Clarke (1992), the D.C. Circuit Court affirmed this reasoning, when the Court essentially held that even if Congress had intended to include a clause in the United States Code, a drafting error which mistakenly excluded said clause meant that such a clause was not valid law.⁴³ Congressional intent did not matter—Congress simply did not include the section in the code. Given that in this case the clause’s exclusion was excluded due to human error and the clause had actually passed Congress and been signed into law, one can imagine how in this context the Court would view the matter at hand. Even if the Reconstruction Congress had wanted to prohibit jury nullification, they did not do so explicitly. Thus, under a similar standard and regardless of intent, the failure of Congress to include any meaningful provisions to that effect means such intent is not valid law.

The Supreme Court itself has concurred with such thinking, declaring in National Association of Manufacturers v. Department of Defense (2018) that “those are not the words that Congress wrote, and this Court is not free to ‘rewrite the statute’ to the Government’s liking. Our constitutional structure does not permit this Court to rewrite the statute that Congress has enacted.”⁴⁴ Thus, if Congress wishes to do something, it must be written in the law itself. According to the Supreme Court, the judiciary is unable to derive meaning from laws purely based upon intent without any supporting provisions in the act itself. Therefore, the modern Supreme Court would not understand the Fourteenth Amendment to prohibit jury nullification (even if that was Congress’ intent) as “Due Process” was an already defined term and Congress was not explicit in such repeal or such prohibition.

4. RECONCILING NULLIFCATION’S SUPPOSED INCOMPATIBILITY WITH THE RIGHT TO PROTECTION

Finally, Bressler claims that the Fourteenth Amendment created a constitutional civil right to protection to be secured by each state government. The guarantees of such a right, he argues, are incompatible and supersede the original Sixth Amendment right for a jury to engage in nullification.⁴⁵ However, Bressler himself presents contradictory evidence proving a jury’s right to decide matters of law and the right to protection are not mutually exclusive. Bressler bases his claim on the fact that some southern juries actively rendered decisions that prevented application of the right to civil protection. Indeed, juries often refused to convict white perpetrators of hate crimes; violence reigned free and postbellum justice for Black Americans was largely non-existent.⁴⁶ For example, Texas prosecuted five hundred white defendants for the murder of Black people in 1865 and 1866—but not a single person was found guilty.⁴⁷ In large swaths of the country, it was impossible to convict white offenders for violence against Black people, and this inexorable violence obviously violated the right to protection guaranteed by the newly enacted Fourteenth Amendment, leading some historians, including Bressler, to believe the rights to jury nullification and protection to be incompatible.

In response to this inability to convict, Congress passed the Ku Klux Klan Act of 1871, which banned, according to some estimates, ninety-percent of the Southern population from serving on juries. Under this law, only Freedmen and Unionists were effectively qualified to be jury members. The act was effective: the next year, federal prosecutors saw a tenfold increase in the number of convictions secured, and in 1872, juries convicted hundreds of white defendants for violence against Black Americans.⁴⁸ Similarly, in response to an inability to enforce polygamy laws—another area of grave concern for the Reconstruction Republicans—Congress prevented anyone who believed in polygamy from serving on a jury in related proceedings. This measure, too, was effective in achieving its desired outcome.⁴⁹

These Congressional workarounds are evidence that the two rights—both civil protection at the state level and the preservation of a jury’s right to nullify—could co-exist and not substantially conflict with one another. In these cases, Congress essentially created work-arounds to the nullification issue by purging would-be-nullifiers from the jury box. In practice, the two rights were compatible and did indeed co-exist; Congress could introduce legislation that would uphold this right of protection while also preserving jury nullification as a right. Juries, once selected, still had the right to decide matters of law — even as Congress worked to prevent those who might nullify from serving on juries entirely. A jury’s ability to decide matters of law had also, historically, served this right to protection. Returning to the story of Shadrach Minkins in Massachusetts, juries refused to convict those who helped a fugitive slave escape in violation of the Fugitive Slave Act.⁵⁰ Nullification was not antithetical to this right to protection by nature, and consequently, the Fourteenth Amendment did not introduce a new right superseding the existing right to nullification present in the Sixth Amendment. Indeed, these workarounds driven by concerns over jury nullification serve as another tacit acknowledgement and legal confirmation of its continued use and validity.

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III. NULLIFICATION RECONSIDERED

Having established that jury nullification was an essential right guaranteed by the Founding Fathers through the Sixth Amendment and that the Fourteenth Amendment did not abrogate that meaning, applying it as created to the states, this essay now converges on its central question: in light of modern Supreme Court doctrine, can a plausible argument that Sparf should be overturned and the constitutional right to jury nullification restored in the American legal system be made? The answer is a resounding yes. Contemporary Supreme Court doctrine on the Sixth Amendment has been clear: the Court uses founding-era intent and understanding to construe Sixth Amendment meaning; the Court believes both that juries and their powers were forms of popular control over the judiciary and that the rights of juries were not left to the judges to interpret (consequently meaning jury nullification was improperly removed and ought to be restored); and the Court believes that the potential consequences stemming from its decisions are not relevant when considering the restoration of Sixth Amendment rights. Fidelity to these commitments would require the Supreme Court to overturn Sparf and restore the right of juries to nullify laws. 

The Supreme Court turned to Sixth Amendment originalism in Apprendi v. New Jersey (2000), relying on the role that colonial and British juries played in the finding of guilt in the late eighteenth century to determine whether juries were required to judge facts that increase the penalties of a crime. The Court ruled that ignoring the historical role of juries in making these types of decisions amounted to an unconstitutional Sixth Amendment violation.⁵¹ Furthermore, the Court wrote in Blakely v. Washington (2004), citing Apprendi, that “Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial… Without [Apprendi] the jury would not exercise the control that the Framers intended.”⁵² Once again, the Court based its legal analysis on the intent of the Constitution’s authors.

Recent precedent also suggests that the Supreme Court recognizes the important historical role jury nullification played as a check on the judiciary’s power and in resisting encroachments upon the rights of citizens. In Apprendi, the Supreme Court, quoting Joseph Story’s Commentaries on the Constitution of the United States, wrote that juries were a “guard against a spirit of oppression and tyranny on the part of rulers… [and] the great bulwark of [our] civil and political liberties.”⁵³ Later, in Blakely, Justice Antonin Scalia wrote that “[The jury] right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”⁵⁴ In another Sixth Amendment case, Justice David Souter, writing for the majority in Jones v. United States (1999), concluded that the Framers felt juries had an important role as a check on the government and judiciary (even citing the Zenger trial) and that the Framers did not want this power to be eroded.⁵⁵ Thus, the Court has made it clear that juries constituted an important component of the Framers’ desire to resist government overreach. Employed by colonists to resist what they saw as Parliament’s tyrannical legislation, jury nullification is no different within contemporary American democracy.

The Court has also acknowledged the Framers’ wariness that the rights of juries and of the Sixth Amendment could be eroded over time by the judiciary, providing further support for the Court’s ideological predisposition to restore the Revolutionary era right to nullify. For example, Justice Scalia wrote in Blakely that “the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury.”⁵⁶ Thus, today’s Court could see a nineteenth century attempt to revise and revoke jury nullification led by judges as constitutionally impermissible, ruling that the right to nullify laws was and remains fundamental to the role of a jury.

Many critics of jury nullification fear if it were ever legally sanctioned by the Supreme Court (as in juries possessing and being informed of their right and not just juries pre-existing ability to decide matters of law), the results would be “chaos” and a lack of uniformity within the legal system.⁵⁷ Studies conducted by some critics suggest that jurors would be more susceptible to emotionally biased testimony and that juror’s verdicts would be compromised.⁵⁸ However, as recent Supreme Court precedent about the Sixth Amendment shows, the Court’s concern lies with ruling on the constitutionality of certain practices, rather than the potential ramifications of such action. In Blakely, Apprendi, Jones, and Booker the Court rendered decisions with consequences that significantly uprooted much of the existing sentencing practices.⁵⁹ However, the Court was unequivocal in doing so—it placed the Sixth Amendment above any potential consequences. Justice Scalia, writing for the majority in Blakely, discussed whether the Supreme Court should consider the downstream consequences of a particular decision:

Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.⁶⁰

Scalia responded to and dismissed the potentially negative effects the decision could have on the legal system in favor of what he believed to be a correct, originalist decision. The same concerns raised in Blakely were the very ones used by 19th century judges to justify removing jury nullification—to the judges, if they were to decide matters of law, the justice system would be more efficient and fair.⁶¹ Again addressing similar concerns in Booker, Justice Scalia wrote:

We recognize, as we did in Jones, Apprendi, and Blakely, that in some cases jury factfinding [sic] may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial—a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment—has always outweighed the interest in concluding trials swiftly.⁶² 

In past decisions, the Supreme Court has shown, regardless of potential harmful effects, the Sixth Amendment rights in question must take precedent. If founding-era understandings of jury rights must be followed, as this line of cases exhorts, then the Supreme Court seems bound to restore the right of juries to decide the law, as well as the facts.

∗    ∗    ∗

CONCLUSION 

The history and tradition of jury nullification is long — it predates our nation’s existence — but Sparf and Hansen v. United States has meant it has largely remained inactive for the last one hundred and twenty years. However, historians, legal scholars, and activist groups have advocated for the use of jury nullification today under the doctrine of originalism and present a compelling argument. This right was intrinsic to common understandings of what a “jury” was when the Sixth Amendment was written. It is from this amendment that originalist jurists should draw the meaning of a jury, not from the Fourteenth. Consequently, in light of the Supreme Court’s modern doctrine and the reality that originalism has become one of the Court’s guiding principles, the Court should overturn Sparf and restore the nullification rights of juries.

When the United States was founded, jury nullification was a right of the American people — a right to represent the conscience of their communities in the judiciary — that has been unduly and unconstitutionally denied. The prospect of handing this power back to the people provides a tantalizing new possibility for achieving a more just American society, where jurors would once again possess a tool purpose-built for their very role as participants in a system dedicated to justice. Indeed, if jury nullification were endorsed by today’s Supreme Court, this power could be employed by juries as an instrument of profound and positive social change to, for example, reject prosecutions based on inherently unfair laws, a lack of procedural fairness (e.g. prosecutorial corruption), government tyranny, or other forms of social injustice. Jurors would have the final say about how their own community members are policed, prosecuted, and punished. No different than the refusal of juries to convict Shadrach Minkins’ rescuers almost two centuries ago, these expressions of popular sovereignty should guide our contemporary legal system. The American democracy and system of government is predicated on the belief that the people reign supreme. That is the case at the ballot box. Why should the jury box be any different?

∗    ∗    ∗

Bibliography

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———. “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” The Yale Law Journal 105, no. 3 (December 1995): 677-725. Accessed January 2, 2022. https://www.jstor.org/stable/797197.

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Horowitz, Irwin A., Norbert L. Kerr, Ernest S. Park, and Christine Gockel. “Chaos in the Courtroom Reconsidered: Emotional Bias and Juror Nullification.” Law and Human Behavior 30, no. 2 (April 2006): 163-81. Accessed January 2, 2022. https://www.jstor.org/stable/4499467.

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Litwack, Leon F. Been in the Storm so Long: The Aftermath of Slavery. New York, NY: Vintage Books, 1979.

National Association of Manufacturers v. Department of Defense, 583 U.S. (Jan. 21, 2018). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/583/16-299/.

Palko v. Connecticut, 302 U.S. 319 (Dec. 6, 1937). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/302/319/.

Scheflin, Alan, and Jon Van Dyke. “Jury Nullification: The Contours of a Controversy.” Law and Contemporary Problems 43, no. 4 (1980): 51-115. Accessed January 2, 2022. https://www.jstor.org/stable/1191378.

Sommers, Samuel R. “Race and the Decision Making of Juries.” Legal and Criminological Psychology, 2007, 171-87. Accessed January 2, 2022. http://dx.doi.org/10.1348/135532507X189687.

Sparf v. United States, 156 U.S. 51 (Jan. 21, 1895). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/156/51/.

“Statutory Construction. Drafting Errors. D. C. Circuit Declares Section 92 of the National Bank Act Invalid. Independent Insurance Agents of America, Inc. v. Clarke, 955 F.2d 731 (D. C. Cir. 1992).” Harvard Law Review 105, no. 8 (June 1992): 2116-21. https://www.jstor.org/stable/1341563.

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Weeks, Virginia. “Fairness in the Exceptions: Trusting Juries on Matters of Race.” Michigan Journal of Race and Law 23, no. 1&2 (2018): 189-210. Accessed November 19, 2021. https://repository.law.umich.edu/mjrl/vol23/iss1/6.

∗    ∗    ∗

Notes

1.  “Compromise of 1850 (1850),” National Archives, accessed May 9, 2022, https://www.archives.gov/milestone-documents/compromise-of-1850.
   ↩︎
2. Gary Collison, “‘This Flagitious Offense’: Daniel Webster and the Shadrach Rescue Cases, 1851-1852,” The New England Quarterly 68, no. 4 (1995): https://doi.org/10.2307/365877, 610-22. ↩︎
3. “The Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly,” in Howell’s State Trials (1670), 6:951-966, accessed May 6, 2022, http://fs2.american.edu/dfagel/www/BushellsCase_Case%20of%20William%20Penn%20and%20William%20Mead%20(1670).pdf.  ↩︎
4. Conrad, Jury Nullification, 26-7. ↩︎
5. Conrad, Jury Nullification, 28. ↩︎
6. Alan Scheflin and Jon Van Dyke, “Jury Nullification: The Contours of a Controversy,” Law and Contemporary Problems 43, no. 4 (1980): 57, accessed January 2, 2022, https://www.jstor.org/stable/1191378; Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Washington, DC: Cato Institute Press, 2013), 24-5. ↩︎
7.  Scheflin and Van Dyke, “Jury Nullification,” 57. ↩︎
8. Conrad, Jury Nullification, 34-6. ↩︎
9. See, for example, Conrad, Jury Nullification; Scheflin and Van Dyke, “Jury Nullification”; Jonathan Bressler, “Reconstruction and the Transformation of Jury Nullification,” The University of Chicago Law Review 78, no. 4 (2011): http://www.jstor.org.horacemann.idm.oclc.org/stable/41552881; With regards to jury nullification, there is an important distinction to be made between the right to nullify and the power to do so. Throughout American history, juries have had the power to nullify — nothing can stop them from reaching a certain verdict. Furthermore, due to double jeopardy, if they acquit the defendant, their decision is essentially final. However, having the power to do something is different than having a right to do so. Juries having the right to nullify means it is a sanctioned action and, more importantly, juries can be informed of their right to evaluate the laws. Most likely, juries would be informed about their nullification power through being informed of mandatory minimum sentences and other facets of the law that might affect their verdict.
   ↩︎
10.  Capitalization preserved from source. John Adams, “Adams’ Diary Notes on the Right of Juries: 1771. Feby. 12.,” February 12, 1771, https://founders.archives.gov/documents/Adams/05-01-02-0005-0005-0004.  ↩︎
11.  Georgia v. Brailsford, 3 U.S. 1, 4 (1794). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/3/1/. ↩︎
12.  Italics added for emphasis. “Alien and Sedition Acts (1798),” National Archives, accessed March 7, 2022, https://www.archives.gov/milestone-documents/alien-and-sedition-acts.  ↩︎
13. Bressler, “Reconstruction and the Transformation,” 1144; Conrad, Jury Nullification, 65-7. ↩︎
14.  Conrad, Jury Nullification, 65-7. ↩︎
15.  Scheflin and Van Dyke, “Jury Nullification,” 61. ↩︎
16.  Bressler, “Reconstruction and the Transformation,” 1145. ↩︎
17. Bressler, “Reconstruction and the Transformation,” 1145. ↩︎
18. Commonwealth v. Philip Anthes (Massachusetts Supreme Judicial Court Oct. 1855). Accessed March 7, 2022. http://masscases.com/cases/sjc/71/71mass185.html. ↩︎
19. Bressler, “Reconstruction and the Transformation,” 1145-6. ↩︎
20.  Bressler, “Reconstruction and the Transformation,” 1145-6. ↩︎
21. Conrad, Jury Nullification, 65. ↩︎
22. Sparf v. United States, 156 U.S. 51, (Jan. 21, 1895). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/156/51/. ↩︎
23. Scheflin and Van Dyke, “Jury Nullification,” 61-2. ↩︎
24. Sparf v. United States, 156 U.S. 51, (Jan. 21, 1895). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/156/51/. ↩︎
25.  See, for example, Conrad, Jury Nullification; Scheflin and Van Dyke, “Jury Nullification.” ↩︎
26. Bressler, “Reconstruction and the Transformation,” 1136. ↩︎
27.  Bressler, “Reconstruction and the Transformation,” 1164 ↩︎
28.  Bressler, “Reconstruction and the Transformation,” 1164-76 ↩︎
29. Kurt T. Lash, “Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act,” The Georgetown Law Journal, 2018, 1419, accessed March 7, 2022. 
    ↩︎
30.  Lash, “Enforcing the Rights,” 1419. ↩︎
31.  Bressler, “Reconstruction and the Transformation,” 1159. ↩︎
32.  Conrad, Jury Nullification, 90; Bressler, “Reconstruction and the Transformation,” 1177. ↩︎
33.  Bressler, “Reconstruction and the Transformation,” 1147. ↩︎
34. Harmelin v. Michigan, 501 U.S. 957, 975 (June 27, 1991). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/501/957/. ↩︎
35. Adamson v. California, 332 U.S. 46, (June 23, 1947). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/332/46/. ↩︎
36. Adamson v. California, 332 U.S. 46, 65 (June 23, 1947). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/332/46/, quoting Palko v. Connecticut, 302 U.S. 319, 325 (Dec. 6, 1937). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/302/319/. ↩︎
37. Duncan v. Louisiana, 391 U.S. 145, 148 (May 20, 1968). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/391/145/. ↩︎
38. Duncan v. Louisiana, 391 U.S. 149, 148 (May 20, 1968). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/391/145/, quoting Gideon v. Wainwright, 372 U.S. 335, 343-4 (Mar. 18, 1963). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/372/335/. ↩︎
    ↩︎
39.  Duncan v. Louisiana, 391 U.S. 145, 151 (May 20, 1968). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/391/145/. ↩︎
40.  “Canons of Construction,” University of Houston Law School, last modified 2018, accessed March 7, 2022, https://www.law.uh.edu/faculty/adjunct/dstevenson/2018Spring/CANONS%20OF%20CONSTRUCTION.pdf.  ↩︎
41. “Canons of Construction,” University of Houston Law School. ↩︎
42.  “Canons of Construction,” University of Houston Law School. ↩︎
43.  “Statutory Construction. Drafting Errors. D. C. Circuit Declares Section 92 of the National Bank Act Invalid. Independent Insurance Agents of America, Inc. v. Clarke, 955 F.2d 731 (D. C. Cir. 1992),” Harvard Law Review 105, no. 8 (June 1992): 2116-7 , https://www.jstor.org/stable/1341563.  ↩︎
44.  National Association of Manufacturers v. Department of Defense, 583 U.S. (Jan. 21, 2018). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/583/16-299/. ↩︎
45.  Bressler, “Reconstruction and the Transformation,” 1178-80. ↩︎
46. Leon F. Litwack, Been in the Storm so Long: The Aftermath of Slavery (New York, NY: Vintage Books, 1979), 283.  ↩︎
47.  Bressler, “Reconstruction and the Transformation,” 1182. ↩︎
48.  Bressler, “Reconstruction and the Transformation,” 1187. ↩︎
49. Bressler, “Reconstruction and the Transformation,” 1198. ↩︎
50. Collison, “This Flagitious.” ↩︎
51. Apprendi v. New Jersey, 530 U.S. 466, (June 26, 2000). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/530/466/. ↩︎
52. Blakely v. Washington, 542 U.S. 296, (June 24, 2004). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/542/296/. ↩︎
53. Apprendi v. New Jersey, 530 U.S. 466, 477 (June 26, 2000). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/530/466/.  ↩︎
54. Blakely v. Washington, 542 U.S. 296, (June 24, 2004). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/542/296/. ↩︎
55. Jones v. United States, 526 U.S. 227, (Mar. 24, 1999). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/526/227/. ↩︎
56. Blakely v. Washington, 542 U.S. 296, (June 24, 2004). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/542/296/. ↩︎
57.  For example, see Irwin A. Horowitz et al., “Chaos in the Courtroom Reconsidered: Emotional Bias and Juror Nullification,” Law and Human Behavior 30, no. 2 (April 2006): accessed January 2, 2022, https://www.jstor.org/stable/4499467.  ↩︎
58.  Horowitz et al., “Chaos in the Courtroom,” 163. ↩︎
59. Blakely v. Washington, 542 U.S. 296, (June 24, 2004). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/542/296/; Apprendi v. New Jersey, 530 U.S. 466, (June 26, 2000). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/530/466/; Jones v. United States, 526 U.S. 227, (Mar. 24, 1999). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/526/227/; United States v. Booker, 543 U.S. 220, (Jan. 12, 2005). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/543/220/. ↩︎
60.  Blakely v. Washington, 542 U.S. 296, 313 (June 24, 2004). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/542/296/. ↩︎
61. Bressler, “Reconstruction and the Transformation,” 1145-6. ↩︎
62. United States v. Booker, 543 U.S. 220, 243-4 (Jan. 12, 2005). Accessed March 7, 2022. https://supreme.justia.com/cases/federal/us/543/220/. ↩︎