Continuing with the model answer I started here and here, to my “judicial supremacy” actual exam-question hypothetical:
(c) May juries legitimately defy judges’ instructions and independently interpret the Constitution? Or must they convict Whelan, if he did the seditious dirty deed of criticizing government policy, notwithstanding the First Amendment and other provisions rendering the Sedition Act of 2015 unconstitutional?
The right answer, I think, is that juries possess an independent power and right of constitutional interpretation and are not bound in any specific case by the unconstitutional Supreme Court precedent of United States v. Paulsen. In one of my posts for The Volokh Conspiracy three weeks ago, I defend the proposition of “jury review.” This is not (mind you) jury nullification – the raw power of juries to acquit against the evidence and in defiance of the law. It is the jury’s power of independent constitutional interpretation.
Once again, it is the supremacy of the Constitution that is at work here. Jurors exercise government power. Unless the nature of that power is properly such as to exclude independent constitutional judgment, the jury, in applying the law to facts, must strive to apply the law faithfully, even if the instructing judge has not done so. The faithful juror, called upon to apply the Sedition Act against Mr. Whelan, should conclude that the statute is unconstitutional. The Act must yield to the supremacy of the Constitution. (The reasoning of Federalist No. 78 and Marbury once again.) The consequence is that Mr. Whelan cannot lawfully be convicted for his supposed offence, and that’s how a constitutionally faithful juror should vote and has the constitutional power to vote.
Some might object that the nature of a juror’s function is specifically not to be an interpreter and applier of the law – that function being reserved for the judge. I disagree. More to the point, the framers disagreed. The framing generation’s understanding of the legal power and right of the jury to judge the law appears to be imbedded in the Constitution’s several specific provisions guaranteeing jury trial rights and jury prerogatives. (The Constitution: An Introduction takes this position in describing the jury provisions of the Fifth, Sixth, and Seventh amendments.)
Indeed, if any institution’s interpretations of the law are “trump everyone else” determinations, they are those of the grand jury and the petit jury in favor of liberty of the accused in criminal proceedings. (I defend this position in “The Most Dangerous Branch: Executive Power to Say What the Law Is,” 83 Georgetown L.J. 217, 288-292 (1994).)
The alternative is bracing, disturbing, and wrong: that legally, a jury must convict a criminal accused, under a flagrantly unconstitutional, monstrous statute, if that’s what the judges say they must do.
This may be an appropriate point to address what many students – and I suspect some readers who have made it this far– say in reaction to this aspect of the hypothetical: “The jury legally must do what the judge says but I wouldn’t do it anyway because it’s just wrong.” The same might be said about the president’s duty to execute Paulsen or prosecute Whelan: “Legally the President has to do what the Supreme Court says, but I sure wouldn’t do it.” This is usually a declaration of the superior obligation of personal morality to law. That’s an interesting and important discussion, but it’s distinct from the question posed: Is it constitutionally proper for a jury to refuse to convict, on constitutional grounds that the courts say are wrong? I think the right answer is that members of a jury are not bound by the erroneous legal interpretations of judges.
One final aspect of the question remains for my final post in this series: Must President Goodman enforce a flagrantly unconstitutional Supreme Court final judgment and order that she execute Paulsen for violating the flagrantly unconstitutional Sedition Act of 2015? May presidents rightfully, constitutionally defy Supreme Court judgments that they conclude, in good faith, are founded on a fundamental misreading of the Constitution?