Jury Nullification and the Constituent Power of the People

Nullification constitutes a small, though important, part of what makes jury trial decision-making distinctive. The increasing bureaucratization of American criminal law means that what was thought to be the exercise of ordinary jury judgment has been transformed into nullification. Understandings t...

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Bibliographic Details
Published inLaw, culture and the humanities Vol. 17; no. 3; pp. 394 - 403
Main Author Burns, Robert P.
Format Journal Article
LanguageEnglish
Published London, England SAGE Publications 01.10.2021
Sage Publications Ltd
Subjects
Acquittals & mistrials
Decision making
Judgment
jury
constitutionalism
trial
nullification
Hannah Arendt
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Summary:Nullification constitutes a small, though important, part of what makes jury trial decision-making distinctive. The increasing bureaucratization of American criminal law means that what was thought to be the exercise of ordinary jury judgment has been transformed into nullification. Understandings that locate “We the People’s” constituent power in sovereign will tend sharply to distinguish the extraordinary moment of constitution creation from the business of ordinary legality. Consequently, those understandings have difficulty imagining a nullifying jury’s doing anything other than defying the will of the people. Hannah Arendt provides an understanding of the founding of the Constitution in the prerevolutionary political practices of the colonists that offers an understanding of jury nullification as more continuous with those practices and more continuous with ordinary jury decision-making.
ISSN:1743-8721
1743-9752
DOI:10.1177/1743872117716132