In past programs we have talked about the concept of Nullification. Nullification is one of the three tools given to We the People by the framers of the Constitution to prevent the usurpation of power by the government. The federal government was formed by the voluntary agreement of thirteen sovereign states, each of whom was an equal partner in a contract that formed a separate entity, namely, the federal government. That central government, limited in power and authority by the Constitution, was the creation of that contract and not a party to it. The sovereignty of each state was protected and secured along with that of the citizens of each state.
The framers gave us nullification, interposition, and secession as the three tools by which individuals and states could control and legally limit the federal government. How these tools have been defeated and weakened over the past century is a topic that we have discussed in numerous Freedom Forum Radio programs over the past five years.
The Sixteenth Amendment (Income Tax), ratified in 1913, gave the federal government the authority, for the very first time, to reach directly into the pockets and bank accounts of each citizen. A tax on income was specifically prohibited by the Constitution, our founders recognizing that taxing productivity punished innovation and restricted individual freedom. Originally, each state collected taxes from its citizens in any manner agreeable to those taxpayers and then remitted to Washington its pro-rata share of the federal budget. This constitutional system gave states the power of the purse to nullify actions of the federal government believed to be contrary to the best interests of the state and its citizens. Once tax dollars from individual taxpayers passed directly to Washington, the states lost their ability to withhold funds from the federal government and lost their most powerful deterrent to federal overreach.
While constitutional scholars might argue the point, secession is a viable and even constitutional option, especially if one believes that the Constitution is a contract voluntarily entered into by sovereign state entities. Groups and individuals bound together by contract can, and often do, break apart. It is common for contracts to contain clauses that govern the procedures for dissolution and dictate the legal obligations of the parties when dissolution occurs. In the absence of those procedural requirements, dissolution still occurs but is accompanied by legal action to allow a judge or court to create a judicially sanctioned conclusion.
In 1860, the southern states successfully seceded from the Union. Their secession was invalidated only by losing a war initiated by President Lincoln and the northern states for the purpose of preventing the dissolution of the nation. After their defeat on the battlefield, the southern states were treated as vanquished entities and were forced to agree to formerly unacceptable terms, including ratifying the Fourteenth Amendment, in order to regain their full status as a state. While there are no “ifs” in history, it would have been fascinating to have watched secession debated in the Supreme Court of that time.
Interposition is used occasionally by states when they opt out of or choose not to enforce federal regulations. For example, a state’s decision not to set up Obamacare state exchanges could be considered an act of interposition. As a result of Printz v. U.S., a Supreme Court decision in 1997, states are not required to assist the federal government in enforcing federal laws.
Jury Nullification, related to the concept of nullification of federal overreach by the states, is the right of juries to consider the constitutionality and moral standing of a law when reaching a verdict. Jury Nullification is a concept that was upheld by British law before the American War of Independence and reaffirmed by our court system after the Constitution was written.
In 1670, William Penn was acquitted by jury of his peers for preaching in public, which he was actually doing when arrested by King George’s soldiers. The judge sent four jurors to jail, but that decision was subsequently overturned by a higher court.
Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of the Constitution.”
Before the War of Northern Aggression, jury nullification was used to assist slaves escaping via the underground railway. Jury nullification was also used during Prohibition to oppose enforcement of that unpopular law.
In 1975, Justice Byron White said, “The purpose of a jury is to guard against the exercise of arbitrary power.”
Donald Fieldler, a noted Defense Attorney had this to say about the rights of jurors to employ jury nullification in reaching verdicts, “When the jury room door is closed, the jury is a power unto themselves. They can do what they feel is right, notwithstanding what the judge’s instructions are. Their decision is what 12 minds determine to be the appropriate verdict in that case, considering the facts and the application of the law to them.”
Be aware that judges can and will dismiss members of a jury pool who openly embrace the concept of Jury Nullification. A single juror, acting on conscience with the knowledge and desire to apply logic, morality, and constitutionality to the law, can cause a hung jury.
Ultimately, it all comes down to asserting the sovereignty of individuals and states to combat the unconstitutional usurpation of power by the federal government. Unchecked, the federal leviathan will continue to grow until we become subjects of a totalitarian oligarchy and are no longer a nation of free citizens. It is our moral obligation as sovereign citizens to use all strategies at our disposal to avoid that catastrophic conclusion to our American Republic. Jury Nullification, used stealthily and legally, may be one of our best tactics.
Dr. Dan’s guest on Freedom Forum Radio this weekend is Bear Marucci, a self-taught constitutional expert. Dr. Dan and Bear will discuss the concept of Jury Nullification by the states as it relates to federal overreach.
Bear Marucci spent much of his young life in New York City, where his mother and father taught school in the public education system. Influenced by his parents, he became an avid reader and developed a love for American History at an early age. Initially choosing work and life experience over an advanced education, Bear became somewhat of a “Jack of all trades,” paying the bills cleaning houses, buying and filleting fish, repairing motorcycles, and working the graveyard shift in a textile mill. He eventually went on to obtain degrees in Applied Science in Radiological and Nuclear Medicine Technology.
Following retirement, Bear has spent the past seven years studying early American History and our founding documents, “Jury nullification has always been right in front of us to use. The fact that it hasn’t been taught in our schools is telling by how few people even know about it. I am just one American who loves his country and is trying to help wake America up to the dangers we are facing.”
Bear has one beloved daughter and lives with his fiancée in Eastern North Carolina, where he is an avid motorcycle enthusiast and patriotic activist.
Part one of this three-part interview begins this weekend, Saturday and Sunday, August 6-7, on WJRB 95.1 FM and streamed live over the Internet. Part two airs Saturday and Sunday, August 13-14, and part three airs Saturday and Sunday, August 20-21. All programs are available by podcast following air time here.
Dr.Dan, I sincerely appreciate your messages on Constitutionality and the privileges and responsibilities of American citizenship.
Your radio topics are educational. I think we should do some teaching at our SoLR meetings. Are you up for that? This topic is an excellent one to start with. Are you game?
If we’re not learning, we’re not growing.