no third solution

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RE: On the “Nullification Memo”

September 1st, 2008

Clay S. Conrad, author of Jury Nullification: The Evolution of a Doctrine, comments on Kip’s latest anti-Jury Nullification post,

 Many nullification advocates make an error, in my opinion, in arguing for the jury’s “right” to nullify. It is not a right; it is a prerogative. And it is a prerogative protected by the law…

Libertarian types, not to mention the fringoids who have glommed onto this topic, tend to seek magic bullets. There are none to be found. However, JN is a lawfully protected prerogative, which juries, in their discretion, can exercise. To imagine that the Founders intended to jettison that prerogative requires such selective reading of history that the mind boggles.

The Founders did not imagine that future judges would be perfect and impartial, or that legislatures would not usurp powers that the people did not intend to cede. They understood that juries were one means by which government could be held in check — one more “check and balance,” if you will.

This is the point I’m trying to make when I say that for a consistently principled libertarian, jury nullification is the only moral option. It is, or it can be, defense against tyranny.

Can it be abused? Of course it can! But so can (and often is) an absolute monopoly on the rule of law. Even Kip is willing to concede that sometimes the law is a ass, and that under these circustances there is some higher power to which man ought appeal.  From which, he uncharacteristically concludes that Jury Nullification is malum in se.

No, it’s not. The act of nullifying a verdict must be measured by the end towards which it is directed, as a tool, it is morally neutral.  Nullification, in and of itself is no more (or less) moral than a rifle: although some may use it for ill will, in the hands of a revolutionary fighting a despot, it is great tool which should not be cast away.

no third solution

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