Jury Nullification and the Constituent Power of the People

Abstract

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.