Just Law Amendment
The people of the United States do not have much control over the laws they are expected to follow. Not only do many laws fail to represent the interests of the people, but they also fail to represent the will of the people. Most of the laws that exist were inhereted from previous generations, where in some cases, laws exist that no one alive today had an opportunity to agree or disagree with. From there other laws are created without consultation, input, or the consent of the public who is expected to abide by these laws.
Fundamentally, what is the purpose of the law? Why do we have laws? The human constant is liberty. In all settings everyone wants to do what they want to do. We agree not do things that impose on one another and abstaining from these acts causes us to be freer. Every law should prevent more imposition than it imposes.
There are many laws that can be shown definitively not to prevent imposition. A simple example would be seat belt laws. Why is a seatbelt law unjust? Because the act of a person not wearing their seatbelt does not create a risk for anyone else. No one is less safe other than the individual who should be free to assume the risk, therefore the law that a person must wear their seatbelt imposes the requirement, without preventing any imposistion. Of course seatbelt laws exist to create revenue for municipal governments, including where seatbelt laws are occasions for law enforcement officers to interact with the public where other legal infractions can be found.
Eventually, the goal is to create a functioning legal definition of the word liberty. As a substitute the Just Law Amendment I propose will make it incumbent upon the courts to allow a defendant in a criminal case, to inform the jury they may decide whether or not the law is just based on net liberty, and allow the defense to make arguments against the law itself.
There is already support for the idea. There are grassroots movements in different states to pass a statute which would accomplish what I hope will be accomplished through this kind of amendment to the constitution. The difference between the amendment I propose, and the statutes sought by others is the objective morality of liberty that can be used to measure whether or not a law is just from a place of objectivity, to eliminate individual jurors’ subjective sense of justice which can cause law itself to become arbitrary. Arguments for jury nullification would have to be limited to merits of liberty-based justice regarding the law. A just law challenge should not be based on efforts to create sympathy for the individual, rather a fundamental challenge to the law based on the law imposing without preventing imposition, or net liberty The prosecution in a just law challenge can argue the merits of the law. Meaning the defense does not gain any unfair advantage in proceedings.
A jury already has the power to find people not guilty for any reason they choose, of course they are not informed of this power, instead they are instructed to decide the case based on whether those facts constitute a violation of the law. A California dispensary owner appealed a marijuana conviction where he was sentenced to 18 years under federal law for operating front dispensaries to distribute marijuana outside of the dispensaries. His appeal was based on the court giving the jury strict anti-nullification instructions. The 9th circuit court of appeals ruled “The court had no duty to make the jury aware of its power to nullify, and properly instructed the jury that it could not 1: substitute its sense of justice for its duty to follow the law, or 2: decide whether a law is just or unjust.” (1)
1: Reason 06/20/2017 “Juries Can Acquit the Guilty 9th Circuit Court Says, But There Is No Right to Jury Nullification”, by Jacob Sullum. https://reason.com/2017/06/20/although-juries-can-acquit-the-guilty-9t/
A jury has the power, but not the right to nullify. A court has the right and usually an obligation not to inform the jury of this power, and the defense does not have the right to inform the jury of this power.
Consider how laws are created in this country. Generally, wealth and industry fund candidates in both parties that allow these candidates to be competitive. People vote for candidates without much understanding of who these candidates are or what laws they will propose or support. The average voter makes decisions based on rhetoric and platitudes and anything substantive they are voting for is addressing a subject they have very limited understanding of. Votes are cast based on an association with a party, and that party’s association with ideas the person likes.
The public has very little input and oversight over the laws they are to be governed by. For this reason, jury nullification is an important part of ensuring the morality of law, where all laws are subject to samples of popular oversight to ensure the laws represent the will and the interest of the people, so law doesn’t remain the instrument of a powerful few, to impose on the rest of the population. There is no difference between a king decreeing a law that is adverse to the interests of most people, and a group who has an interest in people being incarcerated, business or federal agency, who lobbies, promotes, and passes laws that do not serve the interest of the public. Furthermore, citizens should be protected from the ignorance of the population, where a law may reflect popular will, but where popular will is based on a faulty understanding of substance or morality. The ease with which consent can be manufactured through the mass manipulation is another reason citizens need to defend themselves against unjust laws. Either way, it is subjecting the wills of many to the tyranny of the few, and in both cases, the public has no standing to challenge the fairness of the law outside of the constitutional framework. A jury nullification amendment would act as a safeguard against unjust laws.
Just Law Amendment Preliminary Text:
Any person accused of a crime has the right to inform a jury of the jury’s power to nullify law on the basis of net liberty.
What the amendment does is allow the defendant to first inform the jury that they have the power to nullify the law, as John Jay stated in 1794, “to decide facts and law”, (2) but limits the arguments against the law to a basis of net liberty, where a law can only be thought of as being unjust if the law can be shown to impose more imposition than it prevents. In this, law is not reduced to the subjective sense of justice that may vary among the population, but an objective fool proof standard of determining the merit of a law.
2: Liberty and Law, 01/18/2018, “Juries Judge the Law As Well” by Devin Watkins https://www.lawliberty.org/2018/01/18/juries-judge-the-law-as-well/
Beyond liberating the population from potentially unjust laws they did not consent to or did not have oversight on, there are other potential benefits from the Just Law Amendment. Mainly in understanding true public opinion regarding laws. If a defendant charged with a crime is found not guilty due to nullification 70 or 80% of the time such charges go to trial, clearly it is in the interest of the state to no longer prosecute the crime, or for the state to change the law. It has the potential to save money in the cost of prosecution as well as the time and energy to prosecute crimes the public has rejected as being unjust.
Candidates are selected by money on boths sides, meaning no matter who is elected government functions to advance the interests of wealth and industry. This is by design, but it is difficult to imagine a way where the delegation of government is not corrupted by money. I accept this mode of function as a product not only of a market based economy, but as a product of market based behavior. The economy is but an extension of how human beings behave, where the value of interaction is a market where the currency is feelings instead of money. I put forth solutions to allow participation by the general public in a market based legislative process through Centers for Economic Planning, as well as an idea to increase the size of the congress to decrease the ability of money to persuade public opinion concerning candidate selection. I believe in the first idea much more than I do the second. The point being is the Just Law Amendment protects a citzen from laws that do not serve the interest of the public, which may come into being no matter how representative elected officials are of public interest.