“We the People” Have the Final Say on Same Sex Marriage – Not Judges

Although it seems strange now, at the time of the nation’s founding, it was not uncommon for the U.S. Supreme Court to both conduct trials and hear appeals. In the very first jury trial conducted by the U.S. Supreme Court, State of Georgia vs. Brailsford, Chief Justice John Jay gave the following instructions to the jury:

“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

These instructions from the first Chief Justice of the United States, and a co-author of the Federalist Papers, demonstrates the historically correct role and power of juries. The Court did not grant to the jury the right to determine both the fact and that law, it simply recognized the juror’s right which it still has today. However, today judges want to restrict juries to deciding matters of fact, and claim for themselves the final authority to decide matters of law. Persons have even been arrested for handing out literature near a courthouse explaining to potential jurors their true role and great power.

As many await the SCOTUS opinion on same-sex marriage, attention is increasingly directed to the ultimate source of power and authority in our American System of government – “We The People.” As activist judges and courts continue to operate outside of their constitutionally limited role, the role that citizens serve, as jurors and electors, becomes more important and focused.

The power of the individual citizens is probably at its zenith when they serve on a jury. As jurors, they literally have the power to affect an individual’s life forever, including up to death. The Framers of our system of government viewed the jury as being of supreme importance in defending individual liberty against government abuse.

“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” Thomas Jefferson

There are only 14 words describing freedom of speech and freedom of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently — a total of three times — or has as many words devoted to it. It is clear, because of historical evidence, that the Founders viewed the jury as the most important institution, since it gave birth to and defended all other rights. It should also be noted that trial by jury and jury rights were common law rights at the time of the drafting of our founding documents, the Declaration of Independence and the Constitution, and so are also included as rights retained by the people under the Tenth Amendment.

Juries, meet by the thousands each week and month all over the country. As such, they constitute one of the largest and most powerful agencies of law enforcement in the United States. They have the absolute — and permanent — power to ignore government laws, keep people out of prison, ignore judges and prosecutors, make the outcome of any jury trial what they want it to be, and try and keep our government honest. In the absence of overt wrongdoing, such as bribery, their decisions cannot be called into question.

The important vital role and power of the jury predates our Constitution. Since 1215, when the Magna Carta was signed, and throughout American history there has been no more fundamental principle of English or American constitutional law than the right to a jury trial. And in a jury trial, it is not only the right but the duty of juries to judge the facts of a case, the intent of the accused, and the law(s) being applied in the case.

It is also their right, and their duty, for jurors to judge whether the law is just, and to hold the law invalid if, in their opinion, it is unjust or oppressive, and to hold all persons innocent if they violated the law, or innocent for resisting the execution of such laws. This fact about the jury has been attacked in modern times by those who promote the “evolving constitution” viewpoint. This liberal philosophy turns on its head the concept of individual liberty and requires an elite political class to guide and direct the rest of society.

Even so, the court in modern times continues to recognize the broad role of the jury.

“The jury has an unreviewable and irreversible power to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.” U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972

“If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence.” United States v. Moylan, 4th Circuit Court of Appeals, 1969

The jury’s role is much more than just another check and balance in our system of government. America’s founders intended it to be the final political institution that would protect our rights from government abuse and encroachment.

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Justice Byron White, Duncan v. Louisiana (1968)

“The purpose of a jury is to guard against the exercise of arbitrary power.” Justice Byron White, Taylor v. Louisiana (1975)

The duty of a juror to protect a defendant against abuse from the government was much better understood in colonial times than it is today. Consider the 1735 case of Peter Zenger in the colony of New York. Zenger was the publisher of the New York Weekly Journal and was tried for seditious libel for printing articles exposing the corruption of the royal governor. The Zenger case has been referred to as the most important trial in American history because the jury in this case established the rights of freedom of speech and of the press in America by nullifying the seditious libel law which made it a crime to criticize public officials. In the case, the judge proclaimed that truth was not a defense. In acquitting Zenger, the jury exercised its right, power, and duty to nullify a law it believed to be immoral, unfair, and unjust. Andrew Hamilton, Zenger’s attorney, argued jury nullification directly to the jury and gave his opinion of the law to the jury in direct opposition to the instruction of the trial judge. Today, a lawyer who told a jury the truth – that they have the power to disregard a grand jury indictment, the words of the prosecutor, and the instruction of the judge by acquitting a man they believed to be unworthy of punishment – would be charged with, and tried for, contempt of court.

The landmark English case of William Penn and William Mead in 1670 is one of the other greatest trials in the history of jury trials. Penn (who later came to America and established the great Commonwealth of Pennsylvania) and Mead were tried in 1670 for violating the Conventicle Act by preaching to an unlawful assembly at Gracechurch Street. Through the Conventicle Act the king made the Anglican Church the official church and religion of England. In their trial as in most trials today the jury was given the following instruction by the judge: “The court is the judge of the law and you will accept the law as I give it you. You the jury are the judge of the facts. If it is determined that the defendants have violated the law, and they have so admitted you must find them guilty.”

The facts were clear that Penn and Mead violated the law as they admitted. Even so, the jury acquitted them — against the judge’s instruction — and they paid a heavy price. The Conventicle Act was nullified by the jury’s “not guilty” verdict which infuriated the judge. One of the jurors, Edward Bushell (the only Quaker on the jury panel) and another juror, Thomas Veer, led the jury that acquitted Penn and Mead. The jurors were locked in a room with no food, water, toilet facilities, terrible stench and unsanitary conditions; eight of the jurors gave in and paid their fines. But Bushell, Veer, and two others refused and were jailed for nine weeks in a prison that was referred to as ‘Hell above ground’ while they appealed their case to Court of Common Pleas. The court finally ruled in a surprising decision of reversal which established many of the rights in our Constitution that Americans take for granted today. This case led to the abolishment of the practice of punishing juries for verdicts unacceptable to courts.

The Zenger and William Penn cases were within living memory of many of the Founders and within common knowledge of all of them. But juries also refused to convict defendants charged in connection with other laws they believed to be unjust such as prohibition laws, including the Fugitive Slave Law and the Navigation Acts. The king’s response to the Navigation Act was to abolish trial by jury. (Would our modern day Courts or Executive Branch go that far?)

The American Framers knew that panels of average citizens were best equipped to judge the morality of the law in its application to a particular case. Juries have an important political benefit for legislators and society because they send an important peaceful message in a routine and institutionalized way that change in law is needed. The jury has been referred to as a safety valve that tempers, through mercy, the mechanical application of rigid rules or power used as coercion. And it is an antidote for victimless crime laws.

Opponents continue to try diminishing the role of juries. Periodically they even float the ridiculous argument that juries should be eliminated altogether. But claims of chaos, anarchy, inconsistent or unjust verdicts, and repealing law are unfounded. Studies show that people take their responsibility as a juror as serious as other major life decisions.

Jury nullification poses no threat that juries will punish a defendant beyond what the law allows because jury nullification doctrine acts in the direction of mercy only. Juries have no power or ability to create new charges. In addition, a judge can direct a verdict of acquittal, but not of conviction, if the court determines at the end of the trial that the evidence is insufficient to warrant jury deliberations. The court as a matter of law may also set aside a conviction or grant a new trial where the verdict is not supported by evidence, and the defendant can appeal a guilty verdict because it is final, but the government cannot appeal an acquittal.

Mark Howe, in Juries As Judges Of Criminal Law, Harvard Law Review (1939), examined early American cases. He concluded that jury nullification poses no threat to the reasonable doubt standard. It is clear from the language in court opinions that the Americans intended jury nullification to work only in the defense of liberty and not to the aid of the government. “The purpose of the rule [is] the preservation of civil liberties against the undue bias of judges.”

Based on my time serving in the Oklahoma House of Representatives, I can say with some conviction that no matter how unpopular or silly laws may be, legislators seldom go back and correct their mistakes without great prompting. While it is within the proper role of the legislature and electorate to pass laws, it is within the proper role of the jury to veto the application of a law which the jury finds to be oppressive. Just as state governors may veto, both the Senate and the House have vetoes, and the judges have the veto of judicial review, then the citizens who are asked to live under the laws and apply them also have a veto when they serve on juries.

Occasionally a critic will concede the power of the jury to nullify the law but deny its right to do so. This is mere semantics because there is no practical difference between an unreviewable power and a right. Moreover , the Zenger case and the Founders refer to jury nullification as a “right.” Our Constitution clearly states that “We the People” created the Constitution and therefore it follows that the people are sovereign. A sovereign people have the inherent right to judge the law when they come together on juries to decide cases.

Much of the historical discussion of jury nullification has been in the context of criminal cases. That is because the purpose of jury nullification is the protection of constitutional rights. In the past the issue between the individual and government typically took place in a criminal trial. In the early years of the federal courts it was not unusual even in civil cases to inform jurors that they could judge the law. Now, with the rise of civil asset forfeiture, jury nullification applies with equal validity to civil cases where the government is in contest against the individual.

Oklahomans in 2004 passed an amendment to our state constitution by a margin of 76 percent to 24 percent that defines marriage to be between a man and a woman. A Federal Judge claimed to have the power to “strike down” our state’s duly enacted law. Oklahomans are not sitting idly by. We know that judges do not have the right to “strike down” laws which have been duly passed and that are fully within the purview of the state. Oklahomans will address the issue again.

But citizens can push back against such tyranny as they serve on jury panels. For example, let’s say you are called to jury duty and in the trial before you prosecutors have charged a local baker for not providing a cake for a same-sex marriage ceremony, which violates a local law. Your dilemma is that you disagree with the law. You believe that business owners should be able to choose who they do business with just as customers do. Or you may have other reasons you disagree with the law or its application in the case. The judge and possibly the prosecution will likely instruct jurors that they must find the baker guilty if it is clear he broke the law. But based on the application of jury nullification as outlined above, you are free to cast your vote as “not guilty.” And you do not have to reveal or justify your decision – it is personal and private.

We need to realize that the increasingly totalitarian bent of those entrusted with governmental power are finding a way around jury nullification. They are working to vest power in administrative agencies to levy huge fines without the right to a jury trial. For example, a $130,000 fine has been recommended by an Oregon state administrative judge to be levied and paid by a family bakery business for a violation of the Oregon civil rights law. The offense? Refusing on the basis of Christian religious conviction to make a cake celebrating “same-sex marriage.” The award was based upon an administrative hearing, not on a verdict after a trial by jury in a court. The recommendation is now before an Oregon Labor Commissioner who, according to recent investigative reports, has been exchanging e-mails with LGBT activists in a cooperative effort to shape and implement the state’s civil rights act forbidding businesses from discriminating on the basis of sexual orientation.

Such actions by unelected bureaucrats are exposing the constitutional weakness inherent in administrative agencies, which combine legislative, executive, and judicial power. At the time the Constitution was written, the melding of those powers was considered the definition of tyranny. Now it is the order of the day. A wonderful expose of the modern administrative state was recently published by Columbia Law Profession Philip Hamburger, Is Administrative Law Unlawful? His book demonstrates that the modern administrative state traces its roots to the king’s prerogative courts in England, such as the Court of Star Chamber. In England, the King’s Court of Star Chamber was abolished in 1641, but it has returned with a vengeance in modern America.

Many in government are troubled by the jury because it cannot be controlled and it has the power to stop government oppression. According to every state constitution, the Declaration of Independence, and the U.S. Constitution political power is inherent in the people and whenever government becomes destructive or lawless it is the right of the people to alter or abolish it. Thus the jury is of utmost importance in all of its functions but specifically because the people are sovereign. Thomas Jefferson said this about the importance of citizen juries:

“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making of them.”

One of the characteristics that has made America great is that each individual state stands independent from the others in determining public policies. Efforts to force all Americans to live or think the same way are both mistaken and doomed for failure. As judges and prosecutors try to force unjust or unpopular laws and their penalties on citizens, juries offer a very important and reasonable solution by bringing a verdict of not guilty. Juries deliver a peaceful means to provide balance in society, correct government overreach and rescue their fellow citizens. Today, people are needed as much as any time in history to embrace their role as jurors to preserve liberty and our American system of government.


Charles Key served as a member of the Oklahoma House of Representatives from 1986-1998 and 2006-2012, representing a district in Oklahoma City. He can be reached at [email protected].

This article is part of a series on “Building Resistance to Same Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.