University of Chicago Law Review: Volume 78, Number 4 - Fall 2011

The University of Chicago

Law Review

Volume 78

Number 4

Fall 2011

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ARTICLES

Reconstruction and the Transformation of Jury Nullification

Jonathan Bressler†

[cite as 78 U Chi L Rev 1133 (2011)]

More than a century ago, the Supreme Court, invoking antebellum judicial precedent, held that juries no longer have the right to nullify—that is, to refuse to apply the law as given by the court. Today, however, in assessing the constitutionally protected right to criminal jury trial, the Supreme Court has emphasized originalism, delineating the right’s current boundaries by the Founding-era understanding of it. Relying on this Supreme Court jurisprudence, scholars and several federal judges have recently concluded that because Founding-era juries had the right to nullify, the right was beyond the authority of nineteenth-century judges to curtail and thus should be restored. But originalists who advocate restoration of the right to nullify are missing an important constitutional moment: Reconstruction. The Fourteenth Amendment fundamentally transformed constitutional criminal procedure, in the process altering the relationship between the federal government and localities and between federal judges and local juries.

This Article (1) responds to what is an emerging consensus among these commentators that the Supreme Court’s prohibition of jury nullification cannot be justified on originalist or historical grounds and (2) provides new evidence of how the Fourteenth Amendment’s Framers, ratifiers, original interpreters, and original enforcers thought about juries, evidence that differs from the traditional perspective that the Reconstruction Congresses intended to empower juries. It finds that the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury’s historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.

Thus, the Reconstruction Congresses, through the Fourteenth Amendment and its enforcement legislation, may have provided a constitutional basis for the nineteenth-century judicial precedent that had disallowed the jury’s right to nullify. Although no single account can definitively capture original meaning, this Reconstruction-era history provides a new original understanding of a contemporary dilemma in constitutional criminal procedure.

INTRODUCTION

More than a century ago, in Sparf v United States,¹ the Supreme Court held that the constitutional right to jury trial² does not give a jury the right to decide questions of law or to reject the law as presented to it by the court³—an idea known as the right to nullify the law.⁴ But today, the constitutionality of prohibiting jury nullification is under attack.

Recently, the Court has emphasized originalism in constitutional criminal procedure.⁵ For stage after stage of trial,⁶ the Court has analyzed Founding-era history to determine the Sixth Amendment’s original meaning and its continuing constitutional requirements.⁷

Relying on these decisions, scholars and several federal judges have concluded that, because Founding-era juries had the right to nullify, the right was implicit in the constitutional meaning of jury, was beyond the judiciary’s authority to curtail, and should be restored. Sparf, they assert, should be overruled because it cannot be justified on originalist or historical grounds.

Yet those who advocate an originalist restoration of the right to nullify overlook an important constitutional moment: Reconstruction. Assuming an originalist or textualist perspective, the Fourteenth Amendment should shine significant light on criminal procedure because it is the textual prism through which the Court refracts most modern doctrine. Both the Court and its commentators, however, have largely ignored the Reconstruction-era history that illuminates the Fourteenth Amendment’s original understanding and thus how it may have transformed criminal procedure.

This Article tries to remedy these substantive and temporal omissions—that the Court’s originalism neglects nullification and that Sparf’s critics neglect Reconstruction—by assessing how the Reconstruction generation understood nullification. Its purpose is not to evaluate the merits or demerits of originalism as a methodology or of jury nullification as a practice. Rather, it offers a new way of understanding nullification through a different lens of history. Starting from the premise that the Court considers originalism highly relevant to jury law,⁸ it analyzes how incorporating the Fourteenth Amendment and Reconstruction-era history into that methodology might affect an originalist interpretation of the right to nullify.

First, this Article concludes that the Fourteenth Amendment’s Framers understood their Amendment to guarantee criminal jury trial in state courts—but not to incorporate against the states the jury’s historic right to nullify. In 1868, unlike in 1791, this right was not considered inherent in due process or jury trial. Second, this Article shows that, unlike the Sixth Amendment’s Framers, the Fourteenth Amendment’s Framers understood nullification to be inconsistent with new constitutional rights, and they understood the Constitution to authorize Congress and the federal courts to disallow nullification. Their Amendment’s text and history provide an alternative justification of Sparf, one that comports with originalism—of the Reconstruction-era variety—and illustrates that original meaning may not be captured exclusively in a Founding-era conception of rights.

In addition to arguing that Sparf’s holding may be justified on originalist grounds, this Article also challenges the recent historical scholarship on Reconstruction and juries, which has contended that the Reconstruction Congresses intended to empower juries by expanding the jury pool to blacks and did not intend to restrict Sixth Amendment jury trial rights.⁹ This Article provides new evidence that the Reconstruction Congresses sought to reduce jury power by restricting the jury pool, purging would-be nullifiers from the jury boxes. The Congresses tried to do so even when the purges would exclude local majorities from the juries and even when prospective jurors held what were then considered plausible views that federal criminal statutes were unconstitutional. Recent scholarship has missed this strand of Reconstruction history about curbing the jury’s authority.

This Article proceeds in four parts. Part I establishes the analytical framework. It begins with the descriptive and normative attacks on Sparf’s holding, and then it explains why the Reconstruction era may provide a better textual and historical basis for determining current criminal procedure rights than Founding-era originalism does. Parts II and III apply the Reconstruction-era historical analysis. Part II addresses whether that generation understood the Fourteenth Amendment to incorporate against the states the right to nullify by analyzing nullification through judicial practices, treatises, dictionaries, and the Reconstruction Congresses’ debates. Part III asks whether the Reconstruction generation understood the Constitution to disallow, or to authorize Congress to disallow, the jury’s right to nullify by providing case studies of proposed legislation intending to purge prospective nullifiers in the South and in Utah. This Article concludes that, under a Reconstruction-era interpretation, the Fourteenth Amendment did not incorporate the jury’s right to nullify, and it may have transformed the Sixth Amendment to disallow that right, suggesting that Founding-era originalism should not monopolize originalist constitutional criminal procedure interpretation.

I. THE SUBSTANTIVE AND TEMPORAL OMISSIONS OF

MODERN DOCTRINE

Ever since Justice John Marshall Harlan’s opinion for the 5–4 Court in Sparf held that it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts,¹⁰ the law of the land has been that though juries may have the unauthorized power to nullify, they have no legal or moral right to do so,¹¹ and courts have the authority to prevent it.¹² But Founding-era Americans embraced nullification and viewed jury interpretation of law as not merely a power but also an essential right. With the rise of originalism on the modern Supreme Court, scholars, lawyers, and judges have argued that Sparf should be revisited. This Part sets up the Article’s analytical framework by explaining why Sparf is susceptible to Founding-era originalist challenges and how the Reconstruction era may illuminate the constitutionality of its holding.

A. Founding-Era Originalism and Jury Nullification

Although Sparf has been followed for more than a century, the current Supreme Court’s criminal procedure jurisprudence has prioritized originalism over doctrinalism,¹³ suggesting to commentators that the Court may be receptive to modifying its nullification doctrine to accord with the Founding-era right. The Court has even hinted that it may be open specifically to reevaluating Sparf’s disallowance of nullification.¹⁴ When expounding on juries’ historical ability to check the judiciary, for example, the Court has favorably cited eighteenth-century nullification,¹⁵ and Justice Antonin Scalia has indicated that the Constitution permits juries to prevent judges from interpret[ing] criminal laws oppressively,¹⁶ implying that the jury has a legitimate law-interpreting, and thus perhaps a legitimate nullifying, role.

Recognizing that Founding-era criminal juries had the right to determine the law, academics have made originalist arguments contending that the criminal jury’s right to nullify is constitutionally guaranteed and should be restored.¹⁷ Whether the ‘jury lost the right’ to disregard the judge’s instructions, Professor Raoul Berger asserted in laying out the originalist critique of modern nullification doctrine, may be doubted. If . . . that right was an ‘attribute’ of trial by jury at the adoption of the Constitution, it was embodied therein, and therefore was beyond the power of courts to curtail.¹⁸ Arguments against Sparf continue to be made in the pages of law journals today.¹⁹ Although they disagree whether Founding-era history should affect contemporary jurisprudence, scholars almost unanimously agree that when the Constitution and Sixth Amendment were ratified in the late eighteenth century, the jury was understood to have the right, not merely the power, to decide questions of law—and thus to nullify.²⁰

In supporting the conclusion that the right to nullify was inherent in the Founding-era meaning of jury, scholars point to four categories of evidence. First, they quote the statements of late eighteenth-century Americans regarding the jury’s right to decide questions of law.²¹ Second, they cite treatises and law books, which presented law as something juries could understand and should decide.²² Third, they discuss the then-existing practices in state and federal courts, in which jurors were the judges of law.²³ Fourth, they point to the principal purpose behind Article III’s and the Sixth Amendment’s rights to jury trial: to prevent judges from issuing corrupt verdicts biased toward the federal government.²⁴

Given this history, prominent officials and judges have taken the Court’s recent originalism to have undermined Sparf and modern nullification doctrine. Although it is typically prodefendant advocates who criticize the disallowance,²⁵ half of the states’ attorneys general recently questioned Sparf’s legitimacy, noting that the Court’s recent Sixth Amendment caselaw . . . is a corrective to the single most striking long-term trend in constitutional criminal procedure: the systematic diminution of the jury’s autonomy, a process that has proceeded apace since Sparf v United States.²⁶ More directly, several federal judges have called for Sparf’s demise.

Then–District Judge Gerald Lynch, now on the Second Circuit, did so implicitly when he proposed to instruct the jury about a child pornography offense’s mandatory minimum sentence so that, the Second Circuit found, the jury could make an informed decision as whether to nullify the law.²⁷ Judge Lynch himself said that historically jurors have sometimes [nullified], and the judgment of history is sometimes . . . that they’ve done the right thing.²⁸ Although the Second Circuit issued a writ prohibiting his instruction because it violated controlling authority that requires courts to forestall nullification,²⁹ Judge Lynch was not without judicial support. Defending Judge Lynch in a law journal, Judge Donald Middlebrooks issued a harsh originalist critique of Sparf.³⁰ Prohibiting nullification was not the original intent of the founding fathers, he wrote, concluding that Sparf took a wrong turn. Its holding is an assault on constitutional government that should be reconsidered.³¹

In 2008, Judge Jack Weinstein took the ultimate step when he deemed Sparf no longer valid. In a 150-page opinion, Judge Weinstein, a long-time nullification sympathizer,³² held that he had committed reversible constitutional error when he declined to tell the jury about a mandatory minimum sentence because the jury had the right to consider the sentence and to nullify the law.³³ Judge Weinstein interpreted the Supreme Court’s recent Sixth Amendment decisions in the Apprendi v New Jersey³⁴ and Crawford v Washington³⁵ lines of cases to instruct judges to delineate the scope of constitutional criminal procedure provisions, including the right to jury trial, through practices that existed at the Founding rather than through longstanding precedent.³⁶ Based on the originalist historical analysis that showed that nullification was a legitimate jury practice at the Founding, Judge Weinstein declared that Sparf has been largely abrogated³⁷ by the Court’s recent Sixth Amendment decisions because Justice Horace Gray’s dissent defending nullification,³⁸ not Justice Harlan’s opinion for the majority, had the history of the Sixth Amendment right.³⁹

Whatever the judicial system’s evaluation of modern juries and their proper role, the Supreme Court has recently instructed us that in matters of sentencing as well as hearsay, it is necessary to go back to the practice as it existed in 1791 to construe the meaning of constitutional provisions such as the Sixth Amendment. Justice Gray dissenting in Sparf seems to have hit both the modern and ancient marks exactly. Judges are forcefully reminded in Crawford v. Washington . . . that no matter how long and firm a precedential line of Supreme Court cases, if analysis shows it was ill-based historically it must be abandoned.

It is worthwhile recalling that the author of the majority opinion in Sparf was the first Justice Harlan. His minority opinion in Plessy v. Ferguson, which approved over his strong dissent the doctrine of separate but equal, degrading African-Americans, was adopted more than a half century later in Brown v. Board of Education. By contrast, Justice Harlan’s Sparf majority ruling limiting jury power is in effect overruled now, more than a century later, by the recent Booker line of cases, essentially adopting the minority conclusion in Sparf.⁴⁰

The Second Circuit reversed Judge Weinstein without challenging his historical analysis. If the general principles of the Apprendi and Crawford lines lead the Court to reauthorize nullification in the sentencing context, it stated, that is a decision we must leave to the Supreme Court.⁴¹ Still, the fact that a prominent jurist has asserted that Sparf is invalid—and has compared it to Plessy v Ferguson⁴²—and that other federal judges seem to agree is notable in itself. Indeed, Judge Weinstein implies that the case formally overturning Sparf might be a new Brown v Board of Education.⁴³

Sparf, in brief, is under assault at the hands of Founding-era originalism. Even if the courts never overturn Sparf, these historical arguments still illustrate that the Court’s criminal procedure originalism contradicts its nullification doctrine, and this contradiction may lead courts to desire a more rational way of reconciling the substantive inconsistency.

B. Nineteenth-Century Judicial Lawmaking and Constitutional Change

The right–power distinction matters not only for its implications on contemporary jurisprudence but also because the transformation of nullification from cherished right to illegitimate power has normative implications for constitutional change. If nullification had been enshrined in the original meaning of jury, then the people, in ratifying the Constitution and the Sixth Amendment, might have superdemocratically established that right, creating a federal legislative process that incorporated a veto by jurors who had a right to nullify laws—even those passed by an elected Congress. Nineteenth-century judges might have undemocratically altered the Constitution’s meaning by disallowing the right to nullify. Permitting nineteenth-century judges to override the Constitution’s original meaning by judicial fiat may provide a weaker normative foundation for the disallowance of nullification than a textual basis, grounded in a constitutional amendment, would offer.

Even scholars who do not call for an originalist restoration of the right to nullify have long found its disallowance troubling in terms of normatively justifiable methods of constitutional change. In his classic article on nullification, Professor Mark Howe observed that the judges defeated the people’s aspiration for democratic government by disallowing the right: What seems discreditable to the judiciary in the story which I have related is the fierce resolution and deceptive ingenuity with which the courts have refused to carry out the unqualified mandate of statutes and constitutions. His final sentence concluded that it was possible to feel that the disallowance was wise without approving the . . . methods which courts have used in reaching that result.⁴⁴ Nor has scholarly opinion changed over the past seventy years. What is especially striking about the decline of the jury’s power over law is the way in which it was carried out, Professor Matthew Harrington wrote. The drive to limit the law-finding function was entirely a judge-led exercise, carried out without legislative warrant and sometimes in the face of legislative enactments to the contrary.⁴⁵

When judges first attempted to take the law-deciding right away from the jury in the nineteenth century’s first decade, legislatures fought back and impeached them.⁴⁶ Yet as the century advanced,⁴⁷ judges, elite lawyers, and commercial interests increasingly echoed the view that there was a sharp distinction between law and fact and a correspondingly clear separation of function between judge and jury.⁴⁸ Attempting to foreclose that view and to codify the jury’s law-deciding function, several states responded with legislation guaranteeing the jury’s right to determine law in criminal cases.⁴⁹

Starting with justices riding circuit in the 1830s, however, judges began to declare that, as a matter of law, criminal juries were mere fact finders.⁵⁰ Although Justice Henry Baldwin had previously issued instructions permitting nullification,⁵¹ in 1832, when an attorney defended his client on a counterfeiting charge by arguing that the United States Bank’s charter was unconstitutional, Justice Baldwin instructed the jury that the law was constitutional.⁵² Three years later, Justice Joseph Story even more vigorously denied the right to nullify. It is the duty of the court to instruct the jury as to the law, he declared, and it is the duty of the jury to follow the law, as it is laid down by the court.⁵³ Justice Story’s instruction was most influential in deflecting the current of judicial opinion away from permitting criminal juries to decide questions of law.⁵⁴

In the 1850s, as their own courts began to follow the federal example, states tried again to forestall them with new constitutional amendments.⁵⁵ Yet these enactments often counted for little. After the Massachusetts Supreme Judicial Court disallowed the jury’s right to nullify,⁵⁶ the state legislature passed a statute reasserting the jury’s right to resolve questions of law.⁵⁷ The Supreme Judicial Court, in Commonwealth v Anthes,⁵⁸ immediately interpreted away the statute’s meaning and thus defeated the jury’s right to nullify.⁵⁹

Cases like Anthes formed the heart of the Supreme Court’s opinion in Sparf. Justice Harlan devoted little attention to Founding-era history but extensively cited nineteenth-century precedent.⁶⁰ He found that Anthes offered the fullest examination of the nullification question and relied upon Massachusetts Chief Justice Lemuel Shaw’s observation that though the jury had the power they had not the right to decide, that is, to adjudicate, on both law and evidence.⁶¹

The judiciary, of course, had reasons for disallowing the right to nullify. The increasing professionalization of lawyers and availability of law books convinced judges that they were the proper body to determine questions of law.⁶² The need for certainty, stability, and uniformity in law also persuaded them that the more centralized judiciary should restrain the law finding right of local juries.⁶³ Because laws had become democratically enacted, the populist rationale weighing in favor of the jury’s law finding and liberty-protecting role had diminished.⁶⁴ Most importantly, the profound changes in understandings of the sources of legal authority from the eighteenth to nineteenth century—the demise of customary law, the rise of positivism, and at another level, the erosion of popular constitutionalism⁶⁵—contributed to the broad shift away from jury authority over law finding.

But these rationales are problematic. Professor Morton Horwitz, for example, describes the subjugation of juries as an elite-driven process that expanded the political power of the legal profession and the commercial interests at the lower classes’ expense.⁶⁶ Furthermore, if the disallowance of nullification really was democracy enhancing, it seems odd that states were passing legislation that attempted to protect from the judiciary the jury’s right to nullify. Finally, because the right to nullify was understood to be an attribute of jury trial when the Sixth Amendment was ratified—by which time all federal crimes were democratically enacted⁶⁷—an originalist Court might question whether the judiciary’s policy arguments and evolving jury law could trump what had been understood as a constitutional right. In contrast to the evolutionary, extratextual nature of the antebellum disallowance of nullification is the revolutionary, textual, and superdemocratic process of constitutional amendment. Instead of relying on nineteenth-century judicial disallowance, as Justice Harlan did in Sparf, an originalist Court might be more consistent if it looked to the Fourteenth Amendment’s text and history.

C. The Fourteenth Amendment and Constitutional Criminal Procedure

Thus far, the role of the Fourteenth Amendment’s history in constitutional criminal procedure has been minimized. In applying history to its Sixth Amendment jurisprudence, the Supreme Court has emphasized the eighteenth century but has largely missed the nineteenth century, including the Reconstruction era.⁶⁸ Most scholars, moreover, have also ignored or minimized Reconstruction’s influence on constitutional criminal procedure.⁶⁹

The Court’s canonical explanation of incorporation is that the Fourteenth Amendment’s Due Process Clause simply took the rights implicit in the concept of ordered liberty,⁷⁰ including the criminal procedure rights set forth in the Bill of Rights that are fundamental in the context of the criminal processes maintained by the American States,⁷¹ and applied them against the states without altering their meaning. In following an essentially mechanical process that does not reinterpret Founding-era doctrines to fit the Reconstruction-era amendment,⁷² the Court simply assumes that the Fourteenth Amendment incorporated the 1791 meaning of concepts like trial by jury rather than the 1868 meaning.⁷³

But omitting Reconstruction-era history makes little doctrinal sense from an originalist or textualist viewpoint considering that the Fourteenth Amendment is a product of Reconstruction and remains the necessary hook for the constitutional regulation of state criminal trials, and that the Court has rejected the notion of blind incorporation in other contexts.⁷⁴ Incorporation suggests that, in state cases, the constitutional text the Court is technically interpreting is the Due Process Clause, and thus Reconstruction understandings of due process and its relation to the Bill of Rights should be important.

There are reasons to believe that the Reconstruction-era history should matter in federal cases, too. State cases make up the overwhelming majority of all criminal trials⁷⁵ and produce most of the modern Court’s criminal procedure doctrine.⁷⁶ If, as reverse incorporation suggests, consistent constitutional rules between state and federal practices are desirable, then the Court may be justified in using the Reconstruction era–based constitutional rules for state courts to reverse incorporate⁷⁷ the federal criminal procedure rules. Alternatively, as Professor Akhil Amar argues, the Fourteenth Amendment may have transformed the criminal procedure provisions of the original Bill of Rights, rendering the Reconstruction-era meaning applicable even without reverse incorporation, or the original meaning of its corresponding provisions may have superseded the earlier meanings in the Bill of Rights.⁷⁸

This is especially true given the Fourteenth Amendment’s nature. Its Framers’ conception of the role of the courts and judges was fundamentally different from the Founders’ conception: while the Founders feared the federal judiciary and circumscribed its reach, the Reconstruction Congresses empowered it.⁷⁹ Furthermore, the Fourteenth Amendment Framers shared a new vision of constitutional rights. Although the Bill of Rights, including the Sixth Amendment, was established partly to prevent self-dealing and corruption by a distant, possibly unrepresentative federal government and judiciary,⁸⁰ the Fourteenth Amendment transformed the Constitution and the Bill of Rights into a more nationalistic, minority-rights-protecting regime.⁸¹

These changes implicate nullification doctrine because they suggest a different allocation of authority between judge and jury. When the jury loses its right to decide questions of law, the law-deciding right accrues in the judiciary. At the Founding, when—as the Alien and Sedition Acts⁸² illustrated⁸³—the paradigmatic example of citizens in need of constitutional protection were localist critics of the federal government accused of violating Congress’s laws, prosecuted by the President’s agents, and tried under the pro-administration judiciary, the Constitution demanded strong jury rights to protect these citizens. During Reconstruction, however, the paradigmatic citizens who required constitutional protection were freedmen, Unionists, or women being persecuted by local majorities in the South or the West. Carpetbag federal judges appointed by a rights-protecting government in Washington became protectors of rights, while juries, particularly those nullifying criminal statutes, were considered the corrupt bodies that needed to be curtailed.⁸⁴ Disallowing nullification would prevent a local body—the jury—from challenging federal authority, just as Reconstruction was designed to ensure that localism could not trump nationalism.

In short, the Reconstruction-era context matters because it tells us what due process in relation to the law of judges and juries, civil rights, and federalism originally meant when the nation ratified the Fourteenth Amendment in 1868.⁸⁵ Although some might object to Reconstruction’s relevance by saying that the Reconstruction generation understood a Fourteenth Amendment term such as due process, or even terms in the original Bill of Rights, to refer to natural rights descended from the law of nature and enshrined with the same, unchanging meaning since the Magna Carta,⁸⁶ with respect to jury law, the Reconstruction generation understood that the substantive meaning of jury had evolved over time.⁸⁷ This Article shows that the Thirty-Ninth Congress had a different understanding of trial by jury with respect to the jury’s right to nullify than the First Congress did. This evidence casts doubt upon whether originalists should assume that the meaning of constitutional words remained constant over three-quarters of a century or that the Fourteenth Amendment’s Framers incorporated eighteenth-century meanings into their Reconstruction-era Amendment.

D. Reconstruction-Era Meaning and Jury Nullification

The intersection of jury nullification doctrine and the Fourteenth Amendment has been almost entirely absent in the scholarly literature.⁸⁸ No scholar has argued that the Fourteenth Amendment provides a robust textual and historical basis for Sparf’s holding, and at least one scholar has explicitly doubted that suggestion.⁸⁹ The lone notable treatment of the question is a brief snapshot provided by Professor Amar of how the original meaning of the Constitution’s criminal-jury clauses possibly could have been supplanted by the meaning imbued to them via the Fourteenth Amendment⁹⁰ and of how the Fourteenth Amendment might not have incorporated a Sixth Amendment right to nullify.⁹¹

Professor Amar, however, not only never endorses these tentative theses but actually rejects them as merely stronger defenses than the ones Justice Harlan offered of what he considers Sparf’s still incorrect holding.⁹² Since raising those suggestions about Sparf, Professor Amar has published several arguments in favor of the jury’s right to play a role in deciding questions of law and to nullify.⁹³ Most recently, he has suggested that juries have a Founding-era right to acquit against the evidence, which even today arguably encompasses the authority to acquit for reasons of constitutional scruple. He adds, Though twenty-first-century judicial orthodoxy frowns on these claims of constitutional competence, the right of . . . trial juries to just say no in certain contexts draws strength from the letter and spirit of the Bill of Rights.⁹⁴ Thus, Professor Amar is no advocate of the view that the Fourteenth Amendment constitutionalized the judicial disallowance of the right to nullify.⁹⁵

But this Article provides substantial evidence that the Fourteenth Amendment could have constitutionalized the nineteenth-century precedent that disallowed the Founding-era right to nullify. It thus offers a textual and historical basis grounded in the Fourteenth Amendment for disallowing the Sixth Amendment’s original right of nullification by transforming⁹⁶ the meaning of the Sixth Amendment’s right to jury trial through the prism of the Fourteenth Amendment. The Fourteenth Amendment is read in light of its Framers’ understanding of it, which was that (1) the judicial disallowance of jury nullification had been sufficiently established by 1868 so that the Amendment did not incorporate the right to nullify against the states, and (2) because jury nullification was incompatible with certain guarantees of the new Amendment, the Amendment and its enforcement legislation would or could empower federal courts to protect those rights by prohibiting nullification.

In addition to its theoretical component, this Article also challenges the scholarly consensus that the Reconstruction era was principally one of jury empowerment. The few scholars who have addressed how Reconstruction generally affected jury law have tended to look at how Reconstruction affected juries by adding blacks through prohibitions on racial discrimination⁹⁷ rather than at how Reconstruction affected juries by purging certain whites—which omits half the story. For example, Professor James Forman’s recent Yale Law Journal article argues that in response to nullification by white Southerners, the Reconstruction Republicans tried to perfect the jury principally by providing for full black participation.⁹⁸ He finds no proposals to restrict the Sixth Amendment jury trial rights and that ideology—specifically, the longstanding commitment to juries that had been enshrined during abolitionism—played a restraining influence and made it unthinkable to attempt to limit the power of even overtly hostile juries.⁹⁹

This Article, in contrast, finds that an important response to widespread nullification was to purge nullifiers from the jury boxes, whether they were whites in the Southern states in cases with black victims or Mormons in the Utah Territory in cases with women victims. Leading Republicans thought that those who either indirectly counseled lawbreaking or even just believed that a federal criminal statute was unconstitutional were unfit to serve as jurors, and they advocated highly restrictive juror exclusion bills that would exclude majorities of local populations in multiple regions from serving as jurors.¹⁰⁰ In turn, their opposition repeatedly charged them with jury packing.¹⁰¹ Some Republicans went so far as to repudiate the right to nullify even in the abolitionist context.¹⁰² Republicans were so hostile to nullification that they not only would alter federal statutory and constitutional law but would also reclassify their own abolitionist legacy to curtail it.

Although deciphering the Due Process Clause’s effect on the Bill of Rights can be difficult, particularly when assessing the Clause’s effect on jury law,¹⁰³ it is not impossible. Practices in the federal and state courts during the Reconstruction era as well as Reconstruction-era treatises and dictionaries would show whether Americans would have understood the right to jury trial still to include, as it did at the Founding, the right to nullify. Moreover, there are the Reconstruction-era congressional debates, which are the principal source for most Fourteenth Amendment scholarship.¹⁰⁴

I have reviewed, at least briefly, every use of the terms juror or jurors and jury or juries in these sources from the Thirty-Ninth through the Forty-Third Congresses, covering the period from December 1865 through March 1875.¹⁰⁵ In using the debates as evidence, this Article draws upon the model of Professor Michael McConnell’s scholarship, which has used Reconstruction-era congressional debates to interpret the Fourteenth Amendment’s original meaning.¹⁰⁶ McConnell justifies these debates as evidence because the Reconstruction-era congressional debates were conducted, often in constitutional terms, by officers sworn to uphold the Constitution and because the Fourteenth Amendment was, far more than other amendments, a congressional creation.¹⁰⁷ These debates, federal enactments, and other Reconstruction-era sources may illustrate the Fourteenth Amendment process through which the United States experienced a constitutional criminal procedure revolution—one grounded in protecting the rights of blacks and, to a lesser extent, women—that redefined the Bill of Rights.

II. NONINCORPORATION OF THE RIGHT TO NULLIFY

Whether the Fourteenth Amendment’s Framers, ratifiers, original interpreters, and original enforcers understood due process or the right of jury trial to encompass the right to nullify may affect whether the Constitution’s original meaning protects or incorporates jury nullification, at least in state cases. This Part shows that Reconstruction-era history provides an argument that the Fourteenth Amendment neither directly protects nor incorporates the jury’s right to nullify.

A. The Fourteenth Amendment and the Right to Criminal Jury Trial

The Fourteenth Amendment is relevant to jury nullification, of course, only if it affects the right of criminal jury trial. Otherwise, it could not protect or incorporate the right to jury and thus the right to nullify—but it could not plausibly transform or supersede the Sixth Amendment’s original meaning. The term jury nowhere appears in the Fourteenth Amendment;¹⁰⁸ if the Fourteenth Amendment protects the right to criminal jury trial, it must do so implicitly, just as, at the Founding, the constitutional right to criminal jury trial implicitly protected the jury’s right to nullify.

For our purposes, Sparf’s critics and supporters concur that the Fourteenth Amendment should be understood either to protect directly or to incorporate the right of criminal jury trial in state cases.¹⁰⁹ From a nineteenth-century perspective, moreover, there are substantial reasons for understanding § 1 to require trial by jury. The incorporation question and other such debates have been covered extensively in the literature,¹¹⁰ so a short sketch here suffices.

First, the Fourteenth Amendment contains a direct textual basis for requiring states to comply with the right of jury trial. Section 1 unambiguously requires state judicial proceedings to observe due process of law,¹¹¹ and the historical evidence shows that the Reconstruction-era meaning of due process implicitly included a right to criminal jury trial.¹¹² Indeed, the right to criminal jury trial for serious crimes was already recognized, according to one count, in the constitutions of at least twenty-five of the twenty-seven states ratifying the Amendment.¹¹³

Second, the Fourteenth Amendment mandates criminal jury trial through either incorporation or its fundamental-rights alternative. The latter theory is that § 1 was understood to protect only certain limited natural rights common to all free government rather than specific guarantees of the Bill of Rights.¹¹⁴ Among the natural rights understood to exist in 1868 was the right of criminal trial by jury.¹¹⁵ Even academic foes of incorporation argue that while the Fourteenth Amendment was not understood to mandate all of the criminal procedure rights enumerated in the Bill of Rights, it was understood to require states to provide a fair process for deciding criminal cases, including a jury trial right.¹¹⁶

The strongest originalist case for a Fourteenth Amendment right to criminal jury trial comes through incorporation of the Sixth Amendment’s explicit jury clause. Professors Amar and Michael Curtis have marshaled much evidence that the Reconstruction Congresses understood the Fourteenth Amendment to make the Sixth Amendment right to jury trial binding on the states.¹¹⁷ In addition to their many statements advocating general incorporation of the Bill of Rights, Republicans spearheading the Amendment specifically understood incorporation to include the right of criminal jury trial.¹¹⁸ Because the right of criminal jury trial was among those being violated in the South in 1866, Republicans especially wanted to give constitutional sanction to the states’ obligation to guarantee that right.¹¹⁹

The Fourteenth Amendment’s Framers thus understood their Amendment to provide a federal guarantee, whether directly through due process or natural rights theory or indirectly through incorporation, of the long-established right to criminal trial by jury. But did they, like the Founders who ratified the Constitution and the Sixth Amendment, understand the right to criminal jury necessarily to encompass the jury’s right to nullify? Or, despite the protection or incorporation of the right to jury trial, was the right to nullify not protected or incorporated along with it?

B. The Right to Nullify in Reconstruction-Era Courts

For scholars of the Founding era, one measure for determining whether the existing conception of juries entailed nullification is to look at state and federal court practices. In the late eighteenth century, the virtually universal practice was to allow criminal juries to determine law as well as fact. Founding-era judges, lawyers, and, importantly, jurors¹²⁰ experienced the constitutional right of jury trial as encompassing by definition the jury’s right to decide questions of law. Because of the antebellum judicial disallowance of nullification, this practice of submitting legal questions to the jury was not universal during Reconstruction—but it had not been disallowed everywhere either, and the 5–4 Sparf decision suggests that it may have been a close question. Although jury practices in Reconstruction-era courts cannot definitely tell us the understanding of the Fourteenth Amendment’s Framers, ratifiers, interpreters, and enforcers, they nonetheless offer us some clues as to what Fourteenth Amendment due process and its right to criminal jury trial originally meant.

In the federal courts, the Supreme Court did not disallow nullification until the Sparf decision in 1895, a full generation after Reconstruction. Since the 1830s, however, lower courts, often with Supreme Court justices sitting on circuit, had consistently instructed jurors that they had no right to nullify. By 1868, federal courts in Philadelphia, Boston, the District of Columbia, San Francisco, and New York had all denied that the Constitution’s guarantee of the right to trial by jury bestowed on the jury a right to determine law as well as fact.¹²¹ Other federal judges considered these precedents persuasive, even if not binding.¹²² These opinions suggest that by 1868 the practice in the lower federal courts, and particularly in the most significant cities, was not to allow the jury to decide questions of law.¹²³

According to the treatise writers, state court practices were more mixed. In 1857, Francis Wharton counted eleven states that were unite[d] in the doctrine that the jury must take the law from the court and five states that held the opposite view;¹²⁴ he said nothing about the law in the remaining fifteen. In 1876, John Proffatt found that thirteen states prohibited nullification, six allowed it, and five had unclear or conflicting rules;¹²⁵ he did not address the other thirteen. A half-century later, Professor Howe, reviewing a dozen states, wrote that six had disallowed nullification by 1871 but that the other half allowed it for at least another decade.¹²⁶ In addition to the lack of uniformity among the states, there is an additional problem in that Wharton, Proffatt, and Howe occasionally assessed state practices differently.¹²⁷

Yet there is one point upon which Wharton, Proffatt, Howe, and modern scholars concur: during the nineteenth century, the clear and overwhelming trend, in both federal and state courts, was to disallow nullification. They agree that on the eve of Reconstruction, at least with respect to the judiciary, the growing weight of authority was that the right to jury no longer encompassed the jury’s right to nullify. But a mere judicial trend does not establish whether the Fourteenth Amendment’s Framers’ conception of jury trial included the right to nullify.

First, a trend shows direction but not universal practice. During Reconstruction, some state courts still considered nullification a right, even as judges vented their disapproval. In a Connecticut case from 1873, for example, the state supreme court approved of a trial court that had submitted the constitutional question whether a state liquor statute was constitutional to the jury while informing the jury that the supreme court had previously held the statute valid, presumably hoping the jury would follow that precedent.¹²⁸ In a Tennessee case from 1874, moreover, the state supreme court acknowledged that criminal juries had the right to judge the law, over a three-judge dissenting opinion that called nullification wrong, and unsupported by the constitution, or sound principles of law and policy.¹²⁹ According to Howe, in Pennsylvania, Vermont, Connecticut, and, of course, the Supreme Court, the judiciary did not disallow nullification until a generation after Reconstruction.

Second, a judicial trend shows only what the judiciary thought the jury right entailed, and, just as antebellum state legislatures clashed with the courts, so did Reconstruction-era state legislatures. After the Georgia Supreme Court held, in 1870, that the jury must accept the law from the court,¹³⁰ the state passed an amendment (subsequently ignored by the judiciary) providing that the jury in all criminal cases, shall be judges of the law and the facts.¹³¹ After the Louisiana Supreme Court began curtailing the jury’s right to nullify in 1871,¹³² and its chief justice even called nullification a legal heresy and moral wrong,¹³³ the state constitution was amended to provide that the jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence.¹³⁴

But the driving force behind the Fourteenth Amendment and its original meaning was Congress, not the states. The critical question therefore may be whether, in guaranteeing the right of trial by jury through the Fourteenth Amendment, Congress thought that jury meant a body of citizens permitted to decide both fact and law. The legal treatises from which Congress was likely to draw its understanding of the jury and that illustrate how intelligent and informed Americans ratifying the Fourteenth Amendment understood the jury, in addition to the words spoken in the Reconstruction Congresses, show that Congress did not understand the criminal jury right to include the jury’s right to nullify.

C. The Reconstruction-Era Meaning in Treatises and Dictionaries

The best examples of what informed Americans would have understood the jury’s role to be are Francis Wharton and Thomas Cooley, the two great nineteenth-century American treatise writers who wrote about the jury’s law finding right during the late antebellum and Reconstruction eras. Wharton, a Pennsylvania Democrat, published the fourth edition of A Treatise on the Criminal Law of the United States in 1857, less than a decade before the Fourteenth Amendment was drafted. Cooley, a Michigan Republican, published the first edition of A Treatise on the Constitutional Limitations in 1868, the year the Amendment was ratified. In addition to these treatises, John Proffatt’s classic A Treatise on Trial by Jury, published in 1877, also illuminates jury rights and duties during the Reconstruction era. Although Wharton was the most emphatic, he, Cooley, and Proffatt all agreed that, under the then-existing state of the law, juries no longer had the right to nullify and instead were required to take the law from the court.

Wharton, a Yale-educated lawyer who began his career as a state prosecutor, first published his Treatise on the Criminal Law in 1846, and revised it many times thereafter. As a young prosecutor in 1845, he had benefited from a state judge’s instruction that it was the jury’s duty to receive the law for the purposes of this trial from the court,¹³⁵ even though the Pennsylvania Supreme Court did not mandate this rule until a half-century later.¹³⁶ As a treatise writer, he paid special attention to the jury’s right to decide the law; the fourth edition, for example, contained over ten pages on the subject.¹³⁷

Wharton’s conclusion was that juries had no right to decide the law. When a case is on trial, he wrote, the great weight of authority now is that the jury are to receive as binding on their consciences the law laid down by the court.¹³⁸ He conceded that the jury had the power to nullify because an acquitted defendant could not be retried in spite of the evidence. Nevertheless, this exception arises, he insisted, not from the doctrine sometimes broached that the jury are the judges of the law in criminal cases, but from the fundamental policy of the common law which forbids a man when once acquitted to be put on a second trial for the same offence.¹³⁹ Aside from this lone exception, it could be hardly doubted that judges, as the only rightful law deciders, must set aside verdicts that contradicted the law.¹⁴⁰

Wharton understood that during the Founding era the jury had the right to nullify. For some time after the adoption of the federal constitution, he acknowledged, a contrary doctrine, it is true, was generally received.¹⁴¹ But it was not long before it was found necessary, if not entirely to abandon the rule, at least practically to ignore it.¹⁴² The problem was that if juries have any moral right to construe the law, there could be no settled law because juries’ notions on fundamental questions varied and juries could not bind one another on interpretations of the law.¹⁴³

[I]n practice, however speciously the doctrine may be asserted, it is, except so far as it may sometimes lead a jury to acquit in a case where the facts demand a conviction, practically repudiated, and since its only operation now is mischievous, it is time it should be rejected in theory as well as real[i]ty. For independently of the reasons already mentioned, an attempt to carry it out in practice, would involve a trial in endless absurdity.¹⁴⁴

Wharton made it clear that he believed, at least a decade before Reconstruction, that nullification was antithetical to a legitimate system of jury trial.

Thomas Cooley agreed, though he was more cautious than Wharton was. Appointed the University of Michigan Law School’s first dean in 1859 and elected to the Michigan Supreme Court in 1864, Cooley established himself as perhaps the nation’s leading constitutional scholar with the publication of his Treatise on the Constitutional Limitations, the most important of his many works.¹⁴⁵ The treatise appeared while states were ratifying the Fourteenth Amendment, making it among the best sources for determining the original meaning of jury rights implicit within the Amendment and of the jury’s right to nullify.

[I]t is still an important question, Cooley began his four-page discussion of nullification,

whether the jury are bound to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty to follow it if it accords with their own convictions, or to disregard it if it does not.¹⁴⁶

He considered the issue complicated. When the jury acquits on the law against the evidence, the acquittal is final, which suggests that the jury is the judge of the law; but when the jury convicts on the law against the evidence, the judge sets aside the verdict, which suggests that the jury may not judge the law.¹⁴⁷ Nonetheless, he continued:

[I]t is clear that the jury are no more the judges of the law when they acquit than when they condemn, and the different result in the two cases arises from the merciful maxim in the common law, which will not suffer an accused party to be put twice in jeopardy, however erroneous may have been the first acquittal.¹⁴⁸

This led Cooley to reason that the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court, though, of course, the jury have the complete power to disregard it.¹⁴⁹ Thus, Cooley concluded that jury had the power but not the right to decide questions of law, and he added that although there were opposing decisions, the current of authority supported his conclusion.¹⁵⁰

Although John Proffatt’s Treatise on Trial by Jury was not published until 1877, it too illustrates the understanding of the right to jury during the Reconstruction era. Proffatt was a prominent San Francisco lawyer who authored or edited several legal works, including a multivolume series of the most important state court decisions since the Founding.¹⁵¹ His Treatise on Trial by Jury naturally devoted much attention to the practice surrounding the jury’s law finding power.

Proffatt opened his discussion by acknowledging a wide divergence of opinion.¹⁵² In many places it has been claimed for the jury that they may rightfully disregard the instructions of the court in matters of law so that they are the ultimate, rightful and paramount judges of the law as well as the facts in criminal cases.¹⁵³ Even a multitude of authorities, of old and recent date, of very respectable weight and learning supported this assertion of a jury’s right to nullify.¹⁵⁴ Proffatt, however, disagreed with those authorities, and he did not believe that they represented the state of American law during Reconstruction.¹⁵⁵

Although he conceded that juries in criminal cases have the power, which is often too freely exercised, to decide upon the law in criminal cases, Proffatt added that if the question be as to their right to decide the law, it is an entirely different matter. It may be safely asserted that in a large majority of our States this right is denied.¹⁵⁶ Like Wharton, Proffatt acknowledged that nullification doctrine was popular at the Founding but had been discarded during the antebellum era. He also agreed that the disallowance of nullification was not just a descriptive fact but also a normatively justifiable policy.¹⁵⁷ Mirroring Wharton and Cooley, Proffatt ultimately concluded that the preponderance of judicial authority in this country is in favor of the doctrine that the jury should take the law from the court and apply it to the evidence under its direction.¹⁵⁸

Nor were Reconstruction-era scholars the only ones to understand the jury as a fact finding, but not law-deciding, body. Like legal treatises, dictionaries also illustrate that, by Reconstruction, the understanding of the right to criminal jury trial did not include the right to nullify. For example, one dictionary of the Constitution, intended for laymen, defined jury as a body of men selected to try questions of fact in civil and criminal suits, and who are under oath or solemn affirmation to decide the facts truly and faithfully, according to the evidence laid before them.¹⁵⁹ Criminal juries thus tried only questions of fact and only according to the evidence.

The leading nineteenth-century American dictionary provides even more conclusive evidence.¹⁶⁰ Noah Webster, a Yale-educated lawyer like Wharton, first published his American Dictionary of the English Language in 1828. In this first edition’s definition of jury, Webster noted, Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions.¹⁶¹ This definition of jury thus included the criminal jury’s right to decide the law. After Webster died in 1843, George and Charles Merriam acquired the rights to Webster’s Dictionary and hired Webster’s son-in-law Chauncey A. Goodrich, a Yale alumnus and professor of rhetoric, to oversee new editions.¹⁶² In the 1865 revised and enlarged edition, current when the Fourteenth Amendment was adopted, no distinction was drawn between civil and criminal juries, and no mention was made of any jury’s law-deciding right. A jury was defined as a body of men, selected according to law, impaneled and sworn to inquire into and try any matter of fact, and to declare the truth of it on the evidence given them in the case.¹⁶³

Between 1828 and 1865, therefore, the dictionary seems to have understood the meaning of jury to have changed from one in which criminal juries decided questions of fact and law to one in which law-deciding was not in the definition of any jury. Dictionary definitions do not change lightly, so the 1865 edition provides significant evidence that the meaning of jury had evolved. Goodrich was not law trained himself, but he understood the significance of precise legal definitions. In his preface, he wrote that the Judge J.C. Perkins, who [] had long experience as editor of various law publications . . . revised the terms of Law and Jurisprudence.¹⁶⁴

Wharton, Cooley, Proffatt, and Webster’s Dictionary concurred: the jury’s right to nullify, inherent in the meaning of jury in the Founding era, was largely incompatible with the Reconstruction-era meaning of jury. These sources suggest that informed Americans in 1868 would not have understood the Fourteenth Amendment to protect the right to nullify either through incorporation or through its § 1 language. Members of the Reconstruction Congresses were likely familiar with Wharton, Cooley, and Webster’s Dictionary. To determine how they viewed jury nullification, we may also turn to their own words.

D. The Reconstruction-Era Meaning in Congress

The Reconstruction-era congressional debates suggest that most members of Congress, and particularly Republicans who designed the Fourteenth Amendment’s agenda, understood the right to criminal jury trial not to include the jury’s right to nullify. The jury-based analogies they invoked, the bills relating to jury service they proposed, and the state-court jury practices they discussed show almost no support for a constitutional right to nullify and much antagonism toward it. Among those who both played instrumental roles in framing the Reconstruction amendments and commented on jury practices are Senators Lyman Trumbull, Charles Sumner, Frederick Theodore Frelinghuysen, and William Morris Stewart.

Senator Trumbull, a moderate Republican from Illinois, chaired the influential Judiciary Committee, coauthored the Thirteenth Amendment,¹⁶⁵ and authored the Second Freedmen’s Bureau Act¹⁶⁶ and Civil Rights Act of 1866,¹⁶⁷ which the Fourteenth Amendment sought to constitutionalize. In February 1866, Republicans united to support his two bills as necessary amendments to President Andrew Johnson’s Reconstruction plan, viewing them as a prelude to readmitting the South to Congress.¹⁶⁸ President Johnson, however, vetoed the Freedmen’s Bureau Bill partly because he did not think Reconstruction matters should be decided while the eleven Southern states remained unrepresented.¹⁶⁹ The House responded with a resolution that no former Confederate state shall be represented in Congress until Congress declared the state entitled to representation.¹⁷⁰

The Senate concurred after acrimonious debate.¹⁷¹ Among those who objected was James Dixon of Connecticut, who agreed with Johnson that each house could judge the particular qualifications of its members but could not outright disqualify an entire state.¹⁷² Trumbull countered that while each house could judge individual qualifications, the entire Congress could determine which states were qualified to send members to Congress.¹⁷³ When Dixon responded that the Senate could still admit even a member chosen by a treacherous state, Trumbull replied:

If the Senator means to ask me if the Senate has not the physical power to admit anybody, elected or not, I admit they have the same right to do it that twelve jurymen would have, against the sworn and uncontradicted testimony of a hundred witnesses, to bring in a verdict directly against the evidence, and perjure themselves. . . . We might admit a man here from Pennsylvanian avenue, elected by nobody, as a member of this Senate; but we would commit perjury in doing it, and have no right to do it.¹⁷⁴

Trumbull thus understood the jury to have the power, but no right, to bring a verdict against the evidence. He recognized no exception for nullification. Jurors deciding cases were analogous to senators who had sworn to uphold the Constitution; acting contrary to the law was perjury.

Like Trumbull, Senator Sumner of Massachusetts is an appropriate figure by which to measure the Fourteenth Amendment’s meaning to Republicans. Although a radical, he still was among the leaders of congressional Reconstruction.¹⁷⁵ His proposed alternative to the Thirteenth Amendment was a precursor to § 1 of the Fourteenth Amendment,¹⁷⁶ and his civil rights bill to enforce the Fourteenth Amendment finally won his Senate colleagues’ approval in 1874 and passed the House, in amended form, the following year.¹⁷⁷ In short, he represented the Fourteenth Amendment’s rights-protecting agenda and thus shines light on whether its meaning included the jury’s right to