An old idea has resurfaced that may have major potential to slow or even reverse the terrifying erosion of the Bill of Rights under the Reagan-Bush team and their right-wing Supreme Court. I refer to the revival of the ancient Saxon doctrine of Jury Nullification which has now become a projected Constitutional amendment under consideration in 22 states. Since Mr. Justice Brennan, the last plumb-line defender of civil liberties, has retired, and the Supreme Court seems fated to move even further toward the authoritarian right-wing, only Jury Nullification can preserve what still remains in this perishing Republic of Anglo-American libertarianism.

CHAOS Jury Nullification rests upon an old Common Law principle (which Lysander Spooner in his scholarly 'Essay on Trial by Jury' [1852] proved to underlie the Jury clause of Magna Carta) -- viz, that the only way to prevent the government from imposing unjust or nefarious laws is to grant juries the right to negate such laws. This right, as Spooner demonstrated, explains the tradition that a jury should consist of twelve citizens selected at random and thereby representing (as far as scientifically possible) the full range of common sense and common morality of the population in general (including the recalcitrants and cranks among us, upon whom liberty has always depended in bad times.)

In a once popular formulation, the doctrine of Jury Nullification holds that 'a jury may judge the law as well as the facts in the case.' Since Magna Carta this has been repeatedly upheld by courts in both England and America, only occasionally denied by lower, and currently remains the law of both countries, although judges have no legal obligations to inform juries that they possess this right.

In fact, in one infamous decision, in the 1890s, the U.S. Supreme Court upheld the right of Jury Nullification but simultaneously ruled that the judge not only doesn't have to tell the jury they have this right but can prevent the defense attorney from telling them. In other words, American juries have the right to nullify the law, but the judge, if so inclined, can do everything in her or his power to prevent them from knowing it.

In only one state out of the 50 -- Maryland -- does the State Constitution oblige the judge to inform the jury that they have the right to acquit where the facts prove the defendent technically guilty but the sensibility of the jury holds that he or she did no real wrong. In the other 49 states, the right exists nebulously, like a ghost, haunting old parchments; judges do not talk about it, and juries, not knowing that they hold in their hands the final checkmate against tyranny, do not exercise the authority they possess.

As Lord Denman wrote (in O'Connel vs. Rex, 1884): 'Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.' Outside Maryland, every jury in America is still tampered with and falsely instructed in this manner.

The Fully Informed Jury Amendment can change all this, since it would require judges to inform juries of their right to judge the law as well as the facts and to refuse to enforce any law they find repugnant, tyrannical, nefarious, or just plain idiotic.

Under the current government, we can expect abortion to become illegal again, and some women will die in back alleys the way they did before Roe v. Wade. But an informed jury can nullify any anti-abortion law by refusing to convict doctors or patients or the counselors who send the patients to the doctors. They can nullify the law 'in the teeth of the facts' of the case; and even one informed juror can hang the jury and cause a mistrial.

Similarly, the present idiotic 'war' on drugs will continue indefinitely, at a cost of billions, with further erosion of the Constitution, and with no tangible good results credible to anyone with more than half an inch of forehead. But an informed juror can again cause a mistrial. Certainly, the anti-pot law, the silliest of our drug laws, could not survive, in a nation with at least 70 million pot-heads, if juries knew they had the right of nullification.

In the landmark William Penn case in England in the 1670's, the State proved beyond doubt that Penn 'was guilty'; i.e. he did consciously and deliberately violate the law by preaching in a public street a religion not that of the Anglican Church. The jury refused to convict, finding religious persecutions repugnant. The judge, in a fury, confined them to the Tower of London until they would agree to convict. After those twelve ordinary unheroic Englishmen had served enough time in the Tower, public opinion forced the judge to reverse himself and admit the jury had the right to decide the law as well as the facts. And that, children, is how religious liberty came to birth in the modern world after 200 years of bloody religious wars: 12 simple men who felt sick and tired of religious bigotry and refused to enforce an intolerant law.

Similarly, in the John Peter Zenger case (New York, 1734), the State proved conclusively that Zenger violated the law by printing anti-government articles in his newspaper, the New York Weekly Journal. The jury simply refused to convict him and nullified the law. That was the beginning of freedom of the press in this country, even before the Revolution and the First Amendment.

As in Penn's and Zenger's day, Anglo-American juries today still have the right to cry 'Halt!' to any government that tramples upon human liberty; and even if the FIJ Amendment does not pass all 50 states in the near future, the very fact that it exists and is receiving publicity means that some jurors at least will know their rights when they enter the jury box.