Constitution Lectures 6: Who is the Ultimate Arbiter? (HD version)

In order to have an effective Constitution, there needs to be a process for determining
whether or not its requirements have been met, or if it’s limitations have been exceeded.
This inevitably leads to the controversy of the Ultimate Arbiter. Is there one Ultimate
Arbiter of the Constitution whose word is the final say? And if so, who is it?
Let’s start by asking the question, “Who can decide if an act is unconstitutional?”
We’ll look at the three branches, starting with the Legislative branch. Certainly if
a new act is under debate, the legislators can determine for themselves if it violates
the Constitution, If so, they can vote against it.
They can also review laws already on the books if they wish, and if they find them to be
unconstitutional they can repeal them. No one disputes the power of Congress to do
this, although they hardly do it at all anymore.
The Judicial Branch is generally where the decisions of Constitutionality are made, and
particularly in the Supreme Court. Article III gives the Supreme Court and its lower
courts jurisdiction in all cases arising under the Constitution, so they can absolutely knock
down any law in any case before them as being unconstitutional. It doesn’t get removed
from the books, but prosecutors know that trying to prosecute them is a lost cause.
The first case where this was determined was in Marbury vs. Madison in 1803. It happened
after the lame duck Adams administration tried to stymie the incoming administration by appointing
16 circuit judges and 42 justices of the peace loyal to him and not Jefferson. Not all of
the appointments were delivered by the time Adams left office, and Jefferson ordered his
executives not to deliver them. William Marbury, one of the appointees who
was stopped from taking office, sued secretary of state James Madison—and lost because
the case law he was depending on was found to be unconstitutional.
The court ruled: “If both the law and the constitution apply to a particular case,...the
constitution is superior to any ordinary act of the legislature; the constitution, and
not such ordinary act, must govern the case to which they both apply.”
This means that the courts have not only the power, but also the obligation to strike down
any law in abeyance of the Constitution.
But what of the executive branch? Does the President have the authority to decide for
himself if a particular law violates the Constitution? If so, is he obligated to refuse to execute
the law? Or is he obligated to follow all laws passed by Congress, without the ability
to decide on their constitutionality absent a Federal court decision?
Let’s look at the words of Supreme Court Justice Joseph Story in his Commentaries on
the Constitution: “Whenever any question arises, as to the exercise of any power by
any of these functionaries, such functionaries must, in the first instance, decide upon the
constitutionality of the exercise of such power. The officers of each of these departments
are equally bound by their oaths of office to support the constitution of the United
States, and are therefore conscientiously bound to abstain from all acts, which are
inconsistent with it. If, for instance, the president is required to do any act, he is
not only authorized, but required, to decide for himself, whether, consistently with his
constitutional duties, he can do the act.” So the President, like the Supreme Court,
not only has the power to refuse to execute bad laws, he also has the obligation to refuse
to do so.
Okay, so any functionary, the President or whoever, has to make the decision at the time
as to whether or not his act contravenes the Constitution. But this hasn’t really helped
us determine who the Ultimate Arbiter is. Who has the final word?
To try and find the answer, let’s go through the process the government must go through
in order to convict someone.
In the first place, a law must be passed. No one can be prosecuted for breaking a law
that doesn’t exist. As we saw in Lecture 3, Congress absolutely has the ability to
not pass any law, or repeal any existing law, they determine to be unconstitutional. But
let’s say they don’t.
Let’s also say that this particular law has been upheld by the Supreme Court. There
was a case some years ago, and the court found it constitutional.
Now a citizen is arrested for violating this law. In order for this to happen, the arresting
officer, who swears a constitutional oath just like everyone else in government, must
be satisfied that the law does not violate the Constitution. Likewise, the prosecutor,
having sworn the same oath, must feel that the law is not contrary to the Constitution.
But what if the prosecutor brings the person into court anyway?
Then it goes to a trial by jury. The defense might be able to get the case thrown out on
Constitutional grounds before it goes to trial—that’s the right of the writ of habeas corpus, the
foundation for all our other rights—but if that doesn’t happen, all of the evidence
is presented to the jury and it is in their hands.
Despite the fact that prosecutors claim to represent the people, it is really the juries
who do. The prosecution represents the government. In order to put someone in jail, you have
to run it by a jury of the defendant’s peers—the representatives of the people—before you
can lock him up. Can the jury make the decision as to whether
or not the law the defendant is accused of breaking violates the Constitution? Or is
the jury helpless in this regard, stuck with whatever the judge instructs them?
The idea that the jury can decide that the law is wrong and vote to acquit a defendant
anyway is called “Jury Nullification,” and it has an old and honorable history going
back before the founding of our country.
Probably the earliest trial that established Jury Nullification was when William Penn was
arrested for preaching the Quaker religion in 1670. His trial was presided over by the
Lord Mayor of the City of London, who pressured the jury to convict. When they acquitted Penn,
the Lord Mayor threw them in jail for contempt. They went without food, water, or access to
toilet facilities for four days, but never relented. Finally, the Lord Mayor had no choice
but to let Penn and the Jurors go. This set two important precedents: 1) that
an acquittal from a jury cannot be overturned, and 2) a jury cannot be punished for delivering
a verdict the judge doesn’t like. Their word is the last word, in that particular
case.
Of course, a jury verdict only applies to that one case, but a pattern of jury nullification
can have lasting effects. In 1734, newspaper editor John Peter Zenger was arrested for
seditious libel after printing an article critical of the Governor of New York. At this
point, truth was not considered to be a defense to libel. His lawyer, Andrew Hamilton, convinced
the jury that the law was wrong and Zenger should not be faced with libel simply because
he printed the truth. The jury agreed. This set the ball rolling for a number of other
instances of nullification of libel and slander, and as a result, to this day truth as a defense
to slander and libel is absolutely supported in every court in America.
Later on, American colonists such as John Hancock were bypassing customs to avoid the
Stamp Act. Jurors refused to convict them, however, and this prompted the King to declare
such matters under admiralty law, bypassing the jury requirement. This is the reason for
the trial by jury complaint in the Declaration of Independence, and Hancock’s lawyer, John
Adams, spoke most emphatically of the juror’s ability to determine the legitimacy of the
law. At the time the Constitution was ratified,
nullification was universally considered to be a part of trial by jury. Remember from
Lecture 2 that only an amendment can change the meaning of the Constitution; the opinion
of judges on nullification today doesn’t matter. Juries still have this ability.
It continued well into this country’s history. Throughout the 1800s, jurors refused to convict
runaway slaves and return them to their masters, and they refused to convict those who helped
them escape. The fugitive slave laws, allowed by the Constitution at that time, had to keep
being revised and strengthened as they faced greater and greater opposition from juries.
Slavery was ultimately repealed by the 13th Amendment in 1865, but if it hadn’t been
it seems clear that jury opposition to slavery would only have grown stronger.
Jury nullification continued in the labor trials of the late 1800s. Workers who were
mistreated by the big corporations that had sprung up began to form unions and to strike.
They were prosecuted under the law, but juries refused to convict them.
This is where the first salvo against jury nullification was fired: in 1895, the Supreme
Court, pressured by the large corporations, ruled that courts no longer had to inform
juries that they could veto an unjust law. They didn’t have the power to remove the
right of jury nullification, but they did put a stop to the courts informing juries
that they have this right. They also began deliberately lying to the juries, saying that
they may only consider the facts of the case and not the law—in abeyance of centuries
of precedent. They also stop defense lawyers who try to inform juries of this right.
Nonetheless, jury nullification continued. During Prohibition, juries kept refusing to
convict people accused of selling or consuming alcohol. This was a major contributing factor
in the repeal of Prohibition. And it hasn’t stopped there. It was used
during the Vietnam War to stop the persecution of protesters, and it is used today in states
where medical marijuana is legal to prevent Federal conviction of medical marijuana patients.
But it doesn’t happen as often as it should, as not only are juries misinformed, they are
also being instructed to inform the judge whenever a juror is arguing for nullification.
But it still happens. Because for everything they’ve done, they still cannot change the
fact that an acquittal cannot be overturned, and a jury cannot be punished for its verdict.
That is the essence of Jury Nullificaion.
What this means is, the ultimate arbiter is the people. The voice of the people through
juries has been used many times before and during our country’s history to stop bad
laws, and to stop the abuse of legitimate laws.
Not only that, but the power of the people to change the Constitution through the process
of amendment gives them one more weapon. An amendment can clarify the people’s position
on how the Constitution reads, or change the meaning of the Constitution altogether.
Once again, you now have information that most American citizens lack, and even Constitutional
Law attorneys and professors. They’ve spent so long telling us that we’re helpless and
have no recourse but to follow the law no matter what it is, that we’ve come to believe
it. And as long as we believe it, it’s true. But the day we reject it, the day we realize
that all legitimate power comes from the people, is the day that we can begin to take our country
back again. Every tyrant lives in fear of the day the
people realize that they are stronger than he is, and that he only rules as long as they
allow him to. We have more power as people in this country than any country before us;
it’s time we started wielding it for ourselves again. Until next time, stay strong and be
free.