Why Juries Must Exercise Their Right to Determine What Is Just

The Judicial Fiction and the Constitutional Truth

When judges instruct juries that the court decides the law and the jury decides only the facts, they perpetuate a judicial fiction that contradicts both constitutional design and the historical practice of the founding generation. The division is presented to jurors as a timeless axiom of Anglo-American justice. It is nothing of the kind. It is a doctrine of comparatively recent vintage, adopted over powerful dissent, that effected a transfer of power from the people to the bench, and the truth it conceals is simple and profound: juries possess both the power and, in the conviction of the founding generation, the duty to determine what is fair, right, and just in their communities, whatever the court's instructions may say.

This essay sets out the constitutional foundation of that power, traces the judiciary's campaign to suppress knowledge of it, examines the courts' own repeated concessions that the power survives, and explains why its exercise remains essential to any criminal justice system worthy of the name. The account that follows relies throughout on the primary sources—the founding-era record and the courts' own opinions—because on this subject the primary sources are more candid than the instructions read to jurors every day.

The Constitutional Foundation of Jury Power

The Constitution places extraordinary and deliberate faith in the jury as a democratic institution. The right to jury trial appears in the original text of Article III, again in the Sixth Amendment, and again in the Seventh Amendment, a triple emphasis accorded to no other procedural guarantee in the founding document. The repetition was purposeful. The generation that wrote those provisions understood the jury as a structural check on governmental power, standing in the same constitutional family as the separation of powers itself. Alexander Hamilton, surveying the ratification debates in Federalist No. 83, observed that the friends and adversaries of the proposed Constitution, agreeing on almost nothing else, concurred in their reverence for trial by jury: the former esteemed it “a valuable safeguard to liberty,” while the latter regarded it as “the very palladium of free government.” The Federalist No. 83 (Alexander Hamilton).

The founding generation's understanding of what the jury was to do within that structure is not a matter of speculation, because its leading figures said so in terms. John Adams, writing in 1771, posed the question whether a juror must surrender his judgment when the court's direction collides with fundamental principle, and answered it without hedging: “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, though in direct opposition to the direction of the court.” 2 The Works of John Adams 253–55 (Charles Francis Adams ed.), quoted in Sparf v. United States, 156 U.S. 51, 144 (1895) (Gray, J., dissenting).

The early Supreme Court practiced what Adams preached. In Georgia v. Brailsford, the first Chief Justice of the United States, John Jay, charged a jury sitting in the Supreme Court itself, and his charge stated the law of the founding era with perfect clarity: “you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794). Jay added that the jury would presumably pay due respect to the court's opinion on the law, as juries are presumed the best judges of fact and courts the best judges of law, “[b]ut still both objects are lawfully, within your power of decision.” Id. This was no aberration of a single Justice. Justice Gray's exhaustive historical survey a century later established that “[u]ntil nearly forty years after the adoption of the Constitution of the United States, not a single decision of the highest court of any State, or of any judge of a court of the United States, has been found, denying the right of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue,” apart from a handful of cases concerning the constitutionality of statutes. Sparf, 156 U.S. at 168 (Gray, J., dissenting).

The original understanding, in short, is not contested by the historical record. For the first decades of the Republic, the jury's authority over law as well as fact in criminal cases was the settled and openly declared position of American courts, championed by the most eminent supporters of the Constitution and exercised in the Supreme Court itself under the direction of its first Chief Justice.

Sparf and the Judicial Seizure of the Jury’s Province

The doctrine now recited to every American jury dates from 1895, when the Supreme Court in Sparf v. United States repudiated a century of practice and declared: “We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence.” Sparf, 156 U.S. at 102. The majority reasoned that permitting juries to judge the law would surrender the administration of justice to bodies “uncontrolled by any settled, fixed, legal principles.” Id. Justice Gray, joined by Justice Shiras, answered in a dissent of monumental scholarship, marshaling the founding-era authorities canvassed above and demonstrating that the majority's rule inverted the original constitutional design. On the question of constitutional meaning, Gray insisted, opinions formed generations after ratification could not outweigh “the almost unanimous voice of earlier and nearly contemporaneous judicial declarations and practical usage.” Id. at 169 (Gray, J., dissenting).

Sparf was a choice, and it should be described as one. Confronted with a documented original understanding on one side and the institutional convenience of judicial supremacy on the other, the Court chose the latter, and every instruction since delivered that the jury “must” follow the court's statement of the law traces its lineage to that choice rather than to the Constitution. The decision cannot erase the constitutional text's triple guarantee, the founding generation's recorded convictions, or the practice of the early Republic. What it accomplished was narrower and, in its way, more revealing: it authorized courts to conceal from jurors a power the courts themselves would continue to concede the jurors possess.

The Power the Courts Cannot Deny

For the concession is unbroken, and it runs through the case law like a confession the institution cannot stop making. Justice Holmes, writing for the Court a quarter-century after Sparf, acknowledged flatly that “the jury has the power to bring in a verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920). The Fourth Circuit, affirming the convictions of the Catonsville Nine, conceded “the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence,” and explained the consequence in full: “If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969). The D.C. Circuit, in the leading modern case, acknowledged that “[t]he pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge,” citing the acquittal of John Peter Zenger and the fugitive-slave prosecutions as the most celebrated examples. United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).

The structural guarantees of the criminal law entrench the power beyond judicial reach. A trial judge is constitutionally forbidden to direct a verdict of guilty “regardless of how overwhelmingly the evidence may point in that direction,” and is “thereby barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977). The Double Jeopardy Clause then renders the acquittal final and unreviewable, whatever its basis. General verdicts, the prohibition on directed guilty verdicts, and the finality of acquittals together form a constitutional architecture within which the jury's conscience operates beyond the reach of any judge, and that architecture is no accident of drafting. It is the mechanism by which the founding design preserved the community's last word.

The resulting legal position is extraordinary and must be stated plainly. The courts uniformly concede that the power exists; the courts uniformly concede that its historical exercise includes episodes—Zenger, the fugitive-slave acquittals—that the law now celebrates as triumphs of conscience; and the courts nonetheless instruct jurors, in mandatory language, as though the power did not exist, while forbidding counsel to mention it. An institution that behaves this way is not administering a rule of law. It is administering a secret.

Why Judges Maintain the Fiction

The persistence of the fiction is best explained by asking who benefits from it, and the answer at every point is the same: the judiciary and the professional apparatus surrounding it. Exclusive judicial authority over legal interpretation serves institutional control, allowing the system to function as a predictable bureaucracy with clear hierarchies and outcomes that professionals can forecast. It serves elite dominance, reserving the meaning of the law to the credentialed and reducing the citizen's role to the ministerial finding of facts. It serves systemic throughput, for a predictable trial outcome is the engine of plea bargaining, and plea bargaining is the device by which the system processes millions of accusations without the inconvenience of trials.

None of these interests has constitutional standing against the right of citizens to meaningful participation in the administration of justice, and it is worth noticing that the courts have never seriously argued otherwise. The Dougherty majority defended the concealment on frankly managerial grounds—candor about the power, it feared, would invite its undisciplined use—which is to say that the judiciary decided the people could not be trusted with an accurate description of their own constitutional role. A power grab does not become something else because it is administered in measured tones and printed in the Federal Reporter.

The Moral Imperative of Jury Nullification

History supplies the answer to the question whether the power should ever be used, and the answer is written in the episodes the legal culture itself honors. Northern juries that refused to convict under the Fugitive Slave Act were fulfilling their highest duty as citizens, declining to lend their consciences to the enforcement of an immoral law; the Dougherty court itself lists those acquittals among the instances on which the pages of history shine. Prohibition-era juries that acquitted in the face of clear evidence were placing community standards of justice above the mechanical application of a law that had lost the community's assent. Their modern successors—jurors who refuse to convict where conviction would trigger sentences grotesquely disproportionate to nonviolent conduct—stand in the same tradition and perform the same constitutional function.

The case for the duty grows stronger, moreover, as the criminal law drifts from its moral foundations. The Supreme Court once described crime as “a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand,” a conception it recognized as having “taken deep and early root in American soil.” Morissette v. United States, 342 U.S. 246, 251–52 (1952). The scholar William Stuntz documented at length how that conception collapsed—how American criminal law was transformed from a body of prohibitions requiring moral culpability into a vast inventory of technical violations provable without regard to blameworthiness, prosecutable at discretion, and punishable at severities no community would openly endorse. William J. Stuntz, The Collapse of American Criminal Justice (2011). Where the law itself has abandoned the requirement of a vicious will, the jury's independent moral judgment is not a threat to the criminal law's integrity. It is the last institution preserving any.

The Legal System’s Contradictory Position

The current arrangement therefore rests on a contradiction that no amount of doctrinal craftsmanship can dissolve. The system acknowledges, through the double-jeopardy guarantee and the cases collected above, that juries possess an unreviewable power to acquit against the evidence; the system simultaneously refuses to inform jurors of that power, instructs them in language calculated to deny it, and prohibits attorneys from arguing it. Deliberate deception is the only accurate name for this practice. Judges know the jurors hold the power and address them as though they do not.

Professor Paul Butler has pressed the point that honesty is the minimum owed here: an institution prepared to vest citizens with the authority to send a human being to prison owes those citizens a truthful account of the scope of that authority. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995). The current approach fails that minimal test, and the failure corrodes more than the particular verdicts it shapes. A legal system that lies to the one body the Constitution interposed between the citizen and the state has forfeited its claim to lecture anyone about the rule of law.

Community Standards Versus Centralized Authority

Beneath the doctrinal dispute lies the fundamental question of who should decide what justice means in a particular case: the community from which the defendant and the alleged victim come, or distant authorities with no connection to its values. The Supreme Court's own jurisprudence, whenever it pauses to explain why the jury exists at all, answers for the community. The jury right was preserved because the Framers sought “protect[ion] against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority,” giving the accused “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The institution's purpose “is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522, 530 (1975). Reaching back further, the Court has grounded the guarantee in the jury's historic function “to guard against a spirit of oppression and tyranny on the part of rulers” and its standing as “the great bulwark of [our] civil and political liberties.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540–41 (4th ed. 1873)).

Every one of those formulations describes a body exercising judgment, and specifically the community's judgment as a check upon officialdom, including the judge. A jury reduced to mechanical fact-finding under compulsory instructions is a hedge against nothing; it ratifies whatever the professionals have decided, with the added service of lending the ratification a democratic appearance. When statutes or judicial interpretations diverge from the community's standards of justice, the constitutional design that the Court itself describes in Duncan, Taylor, and Apprendi contemplates that the community's standard prevails in the community's verdict. The modern instruction inverts that design and then cites the design's prestige as authority for the inversion.

The Corrupting Influence of the Current Doctrine

The fiction has not been costless, and its costs compound. By making trial outcomes predictable and trials themselves rare, the disempowerment of juries lubricates the plea-bargaining machinery through which the overwhelming majority of convictions are now produced, and thereby facilitates conviction and incarceration on a scale without precedent in the democratic world. It generates a democratic deficit, leaving laws formally intact long after they have lost community support, because the institution designed to register that loss has been silenced. It breeds a corrosive cynicism about the legal system among citizens who watch manifestly unjust outcomes proceed to judgment with no lawful means of community intervention, and it hollows out citizenship itself, reducing jury service from a genuine exercise of governmental power to a supervised clerical task performed under instructions that misstate the juror's office.

Each of these harms flows from the same source. A constitutional structure built to distribute power was amended, by judicial decision and judicial practice, to concentrate it, and the predictable consequences of concentrated power followed.

What Jurors Must Do

Given these realities, the obligations of the conscientious juror can be stated directly. Jurors must know their power: despite instructions to the contrary, they possess the unreviewable authority to acquit whenever conviction would offend their judgment and conscience, an authority conceded by the Supreme Court in Horning, by the courts of appeals in Moylan and Dougherty, and by the constitutional structure described in Martin Linen. They must apply the community's standards, judging both the facts and the justice of applying the law to those facts, because that dual judgment is the function for which the Constitution preserved their office. They must withstand pressure, recognizing that the mandatory language read from the bench is the voice of the institution Sparf built rather than the voice of the founding design. Above all they must remember what the jury room is: the last place in American government where ordinary citizens directly exercise sovereign power over the fate of one of their own.

When a judge instructs that the law must be followed whether or not the jurors agree with it, the instruction should be recognized for what it is—an attempt to substitute judicial authority for a constitutional design that placed ultimate judgment in the hands of the community. The juror who understands this history and votes his conscience commits no offense against the rule of law. He performs the office that Jay described from the bench of the Supreme Court, that Adams called a duty, and that the Constitution guarded three times over.

Conclusion: Reclaiming Constitutional Democracy

Jury nullification is a feature of the constitutional design rather than a defect in it. The power of the community to withhold condemnation stands as the people's department of government, the final defense against tyrannical laws and overzealous enforcement alike, and its pedigree runs from the founding-era courts through the Supreme Court's own repeated concessions to the present day. When jurors exercise their authority to determine what is fair, right, and just in their communities, they do not undermine the rule of law; they fulfill the purpose for which the rule of law exists.

The judiciary's campaign to monopolize legal interpretation, inaugurated in Sparf and enforced ever since through instructions the courts know to be misleading, contradicts the constitutional structure at its foundation. For the sake of liberty, and of justice itself, jurors must reclaim their rightful role as judges of both law and fact, whatever the instructions from the bench may say. The Constitution assigned them that role; the historical record proves it; and the courts' own opinions, read honestly, have never stopped admitting it.