WildAlaska said:
I beg to differ. Stare decisis is nothing more than a logical and philosophical recognition that once an issue is determined, it is determined. It's an extension of judicial, legal and philosophical finality, and is in fact a rule of analysis or a guideline for orderly change, if change is indeed required.
I believe you have just made a logical error in this definition. If stare decisis is, "a logical and philosophical recognition that once an issue is determined, it is determined." then it cannot at the same time be "a guideline for orderly change." Logical opposites, that.
The essense of the argument by us "anti nullifiers" is that it entails disrespect for the system.
That would be an excellent argument except for this:
Only when those rules are MANIFESTLY unjust or unfair BECAUSE of the system should those rules be broken.
Because that is exactly what the Jury veto is all about. In a specific case, with a specific circumstance, for a specific defendant, the Jury finds that the rule is MANIFESTLY unjust. By its veto power, the Jury restores justice.
Please note that I do not call for indiscriminate Jury veto. Rather as Lysander Spooner says:
"For more than six hundred years – that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of such laws." "An Essay on The Trial By Jury," 1852
Of course, in the eyes of the ABA, Mr. Spooner was dead wrong... As was the passage I quoted from Elliots Debates.
There is something wrong, when we discuss constitutional issues and we neglect the history by which any meaning may be embedded. In this discussion of the Jury power of veto, we are not discussing a blank slate. That tablet was well written upon, before the Courts began to tinker!
note bene: During the October ABA Jury Symposium, a panel on Jury Reform, chaired by Professor Stephan Landsman, a jury historian and member of the ABA jury reform committee, was asked whether the committee had considered historical norms in assessing their suggested reforms. The answer was resoundingly no!
Now it is beyond the scope of this thread to dwell upon those reforms, other than to say that these reforms were drawn up, without benefit of peer review, and were in fact, written as if the slate was blank.
And you worry about a jury exercising its historical powers entails disrespect for our Judicial system? I worry that such tinkering would lead to further diminished respect for juries and diminished use of the jury system. I believe it would lead to an even more pronounced decrease in the willingness of jurors to appear for jury duty.
I posit that the Jury veto does not render the entire framework, useless. Rather, it points to a probable problem within the framework, thereby allowing correction (legislatively).
When you have a vehicle for change given to you, it should be driven, not disregarded.
Exactly. However, I believe we view the vehicle differently.
To lie to thwart governmental power...
See? Therein lies the rub. Between voir dire (Remember? The Government gets two shots to disqualify a potential juror) and the supposed jurors oath, we have at one stroke made Juries nothing more than puppets for the government. Further, it shows complete disrespect to the concept of a Jury by the legal profession, and it also shows utter disdain to the jurors and their own independence. Again, I bring to your attention the quote from Elliots Debates.
Now, as to actually lieing to the Judge, I won't and I haven't. Nor will I take an oath that serves only the government. Those are
my standards and principles. I don't suspect they are every bodies.