Jury trials are such a common fixture of American life that few people give them a second thought. The U.S. Constitution’s requirement (Art. III, Sec. 3) that “The trial of all crimes…shall be by jury,” may seem wholly normal but it is unique to America. In other countries, jury trial is reserved only for a few special circumstances.
Most of the world’s population will never be allowed to ask twelve fellow citizens for justice. By contrast our Sixth Amendment guarantees a “public trial, by an impartial jury” in “all criminal prosecutions.” The Seventh Amendment even extends this right to most civil cases!
By definition, a jury has no legal training. There is only one thing that a random selection of jurors can bring to a criminal or a civil trial--common sense. Anyone rich and poor, high school dropout and rocket scientist, is born with a sense of right and wrong.
The very fact that jury trials are ensconced in American law testifies that all laws are intended to be nothing more and nothing less than a written expression of that law written on every person’s heart. It is called the natural law.
Natural law is not created by societies, governments, or churches. It is not created at all but discovered in the heart of humankind. The telltale sign of natural law is that both sides appeal to justice. This appeal is not defined by legislation. It, rather, judges every positive law that is the creation of lawmakers.
Societies that get this backward no longer seek to discover the universal principles of justice. Instead, they attempt to create justice by fiat. It is an efficient at handling disputes, but it imposes order by power. It does not seek peace by justice.
Trial by jury is America’s way of seeking peace, not just order. We want to be ruled by justice, not power. This means that we are asking juries to let their sense of justice be the deciding factor—even if it runs contrary to the written, positive law.
When a jury decides that a person has broken the written law, but that the written law is unjust, it has the right to nullify the written law in order to grant justice. Jurors have a duty not only to weigh the facts of the case, but also to judge whether the law is just.
Scholars agree that jurors have the constitutional power to do this. But those who reject the natural law want to limit a jury’s authority. They claim that juries should only judge the facts of the case, not the law itself.
Let legal theorists argue about the U.S. Constitution, but Wyoming’s Constitution leaves no room for doubt. Section 20 of our Declaration of Rights expressly states, “in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court” (Art. I, Sec. 20).
In both civil and criminal cases, a jury—and not just a single judge—has the “right to determine the facts and the law.” Common, untrained citizens are charged by the Wyoming Constitution to decide not only if a person has violated the law, but also whether the law itself it just. That’s jury nullification.
Especially in matters of free speech, Wyoming is constituted to protect its citizens from arbitrary dictates of government power. Just because some governmental entity makes a law forbidding this or that speech does not make it just. Positive law that does not match up with natural law should not be followed.
It is as if Wyoming’s founders could foresee our cultural climate. Increasingly, statements of plain truth are subject to fines, censure and other penalties. Time after time the twisted logic of positive law trumps common sense.
But in nearly a decade of judgements from the bench and rulings from appointed commissions, not a single jury has had their say. Government officers may be adept at parsing policy statement and legalese, but they are not allowed to ask such laws are actually just.
Justice is discovered in the human heart. It is not created by lawmakers. If any law is not true to the law written on the heart, it is unjust. Juries are given a prominent place in American justice because American justice rests upon natural law, not man-made laws.
If we value a peaceful society and not just an orderly one, our judicial system must aim for justice, not merely lawfulness. This is America’s great heritage. It is also explicitly taught in Wyoming’s Constitution. Juries that judge the law serve justice and peace, not mere law and order.
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