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It's funny that so much energy is expended talking about how Jury Nullification is a flaw in the system when the courts themselves can simply overrule congress

It's funny that so much energy is expended talking about how Jury Nullification is a flaw in the system when the courts themselves can simply overrule congress by agreeing with each other due to Marbury vs Madison (which was essentially judicial nullification). While nullification has mostly been used for ill in the past, at least it's a grassroots democratic process. Why should someone be punished if their peers don't think it should be a crime? That's pretty small d democratic, much more so than elections where your vote barely counts.

JumpCrisscross 6y ago
> Marbury vs Madison (which was essentially judicial nullification) Last I checked, juries aren't co-equal with Congress. > Why should someone be punished if their peers don't think it should be a crime? If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se. If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.
- tehjoker 6y ago
  You are right, but I can also imagine the inverse where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency. The unevenness at the local level is problematic, but so is evenness of really bad laws. For example, a jury should feel free to simply dismiss charges brought under the espionage act. I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.
  - JumpCrisscross 6y ago
    > where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged. The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.
    - cwillu 6y ago
      > The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged. https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control with all of its flaws
- tehjoker 6y ago
  I'd point out that until Marbury v Madison the supreme court was not a co-equal branch. It was simply an interpreter of what congress passed with no ability to declare things unconstitutional. It was a power grab by the courts. You can claim declaring laws unconstitutional is kind of an implied power, but it is certainly no where in the text. Other thinkers have said that legalism is fake and there is really only contests between political factions with a legal gloss to pretend things are fair and objective. If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority.
  - JumpCrisscross 6y ago
    > If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority Philosophically, I like this argument. Practically, dear god. The U.S. system was supposed to balance the stability of monarchy (executive) and aristocracy (judiciary) against the justness of democracy (legislative). Our executive is, by design and decidedly, not monarchic. That removes a "slow thinking" system, leaving the "fast thinking" executive and legislature. We see the results in our political volatility. Given the last two hundred years, Marbury was right. We needed a dampener, so to speak. People not incentivized by poll numbers. P.S. Thank you. This has been a fun discussion and distraction.
    - tehjoker 6y ago
      Always enjoy talking constitutionalism. :D

JumpCrisscross 6y ago

> Marbury vs Madison (which was essentially judicial nullification) Last I checked, juries aren't co-equal with Congress. > Why should someone be punished if their peers don't think it should be a crime? If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se. If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.

tehjoker 6y ago
You are right, but I can also imagine the inverse where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency. The unevenness at the local level is problematic, but so is evenness of really bad laws. For example, a jury should feel free to simply dismiss charges brought under the espionage act. I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.
- JumpCrisscross 6y ago
  > where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged. The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.
  - cwillu 6y ago
    > The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged. https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control with all of its flaws
tehjoker 6y ago
I'd point out that until Marbury v Madison the supreme court was not a co-equal branch. It was simply an interpreter of what congress passed with no ability to declare things unconstitutional. It was a power grab by the courts. You can claim declaring laws unconstitutional is kind of an implied power, but it is certainly no where in the text. Other thinkers have said that legalism is fake and there is really only contests between political factions with a legal gloss to pretend things are fair and objective. If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority.
- JumpCrisscross 6y ago
  > If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority Philosophically, I like this argument. Practically, dear god. The U.S. system was supposed to balance the stability of monarchy (executive) and aristocracy (judiciary) against the justness of democracy (legislative). Our executive is, by design and decidedly, not monarchic. That removes a "slow thinking" system, leaving the "fast thinking" executive and legislature. We see the results in our political volatility. Given the last two hundred years, Marbury was right. We needed a dampener, so to speak. People not incentivized by poll numbers. P.S. Thank you. This has been a fun discussion and distraction.
  - tehjoker 6y ago
    Always enjoy talking constitutionalism. :D