In order to reply in an intelligent manner, I must break down the arguments into its components.
STAGE 2 said:
Al, given that there is nothing in the constitution regarding the power of juries,
Given the fact that the power(s) of the Jury was a known and commonplace thing, that it was not defined within the Constitution should not lend an opinion one way or another.
It can be expressed thusly: The Constitution lays out the framework of a central government. It expressly grants certain powers while implying that all other powers belong to other parties, be they state governments or individual citizens. The Jury, not being a governmental construct, is left undefined. That being the case, we must needs look elsewhere for any such definition. The (now) 800 year history of the Jury in common law is the place where the answers reside.
... and both the fed and states have the express power to establish courts and the rules that govern them,
Rules and procedures that govern a court (a government construct) do not necessarily govern a non-governmental agency. Nor should it. Consider, for a moment,
voir dire. It has a very dark history.
It started with the Fugitive Slave Act, as noted in the "brief history." A judge would question the jurors, before seating them, to discover if they held anti-government views. This is in fact, Jury Stacking. This has evolved to what we have today. Many in the legal profession consider it a fair way to discern the discriminatory views of an individual, and excuse that individual if his views are contrary to that of the prosecution or defense. But. The Judge still has a role and gets first "crack" at questioning the perspective Jury pool.
Despite the assurances of the legal profession, we still have the government, in the form of a Judge and a prosecutor, having two attempts to stack the Jury against the defense.
This all became precedent, during the 1850's. A precedent with a dark and evil beginning. A precedent that became doctrine, that should never have been allowed in the first place. It is anathema to the practice of a having a "fair and impartial" Jury despite the assurances of the legal profession to the contrary.
... is it not then a correct statement of the law that in places where the jury is instructed to be only a finder of fact, that they are limited to this power.
No.
Under what express grant of authority does a legislature or a (on a lessor note) Court have that that makes such a determination? If it is not an express power granted by the Constitutions of the central government or the States, then it is a usurpation of power.
The question of States Constitutional Powers, can wait for the moment, however.
There is no such thing as federal common law, so pointing to the history of english tradition doesn't really help for todays purposes.
Actually, there is. And it does.
The Constitution is silent upon Juries, their composition (other than the number of members) or their powers.
Art. III, section 2, clause 1:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,
Nothing in the above detracts from the common law powers of the Jury. There is, however, an implication of those powers, albeit for civil trials: Amendment VII:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VII establishes a Federal Common Law as regards a certain aspect of the operation and power of the Jury. By an explicit statement, an implicit understanding is preserved. Juries operate under the Common Law and neither Federal statute nor Court regulation may change this. To do so is an usurpation of power.
Having pointed this out, we can now move on to the States themselves. Any State statute or Constitution that violates the Federal Constitution (Supremacy Clause; Art. VI, clause 2) is null and void.
The only other determining factor here is the notion that by moving away from these Constitutional norms, simply shows how far our governments have deviated from those express and implied powers, set forth in the defining document for the structure of our governments.
publius42 said:
If the Congress steps "way out of bounds" and "votes as they see fit" outside of their delegated authority, how is that acting "under the law"?
STAGE 2 said:
If they do step out of bounds, its the job of the supreme court to reign them in.
Theoretically, this is correct. At least since
Marbury v. Madison has never been overturned.
On the more substantial and practical level, the Court has long fallen upon its own laurels. When a Court is able to pick and choose which cases and controversies it will take and which it will not, many decisions are left up to the inferior courts. The Second Amendment is just one aspect where the Court has abdicated its responsibility.
Which brings us right back to:
STAGE 2 said:
Furthermore, given judicial precedent, what john jay said some 200 odd years ago probably has been overruled by implication to some extent. Whether people agree or disagree with this isn't the issue. Just as easily as Jay wrote this into law with his opinion, other decisions have written it out.
Since John Jay quoted the Common Law, as enshrined in the Federal Constitution, writing this out is an act of usurpation of power by the Courts, aided and abetted by the Federal Legislature and the Federal Executive.
The Law is the Law. We either hold to that highest law, the Constitution of the United States, or we do not. Regardless, even in spite of, what you perceive or were taught. Stare Decisis is mere doctrine. Where it conflicts with dogma (The Constitution) it should hold no weight whatsoever.