Jury Nullification and the Constituent Power of the People

Robert P. Burns*

*Corresponding author for this work

Research output: Contribution to journalComment/debatepeer-review

Abstract

Nullification constitutes a small, though important, part of what makes jury trial decision-making distinctive. The increasing bureaucratization of American criminal law means that what was thought to be the exercise of ordinary jury judgment has been transformed into nullification. Understandings that locate “We the People’s” constituent power in sovereign will tend sharply to distinguish the extraordinary moment of constitution creation from the business of ordinary legality. Consequently, those understandings have difficulty imagining a nullifying jury’s doing anything other than defying the will of the people. Hannah Arendt provides an understanding of the founding of the Constitution in the prerevolutionary political practices of the colonists that offers an understanding of jury nullification as more continuous with those practices and more continuous with ordinary jury decision-making.

Original languageEnglish (US)
Pages (from-to)394-403
Number of pages10
JournalLaw, Culture and the Humanities
Volume17
Issue number3
DOIs
StatePublished - Oct 2021
Externally publishedYes

Keywords

  • constitutionalism
  • Hannah Arendt
  • jury
  • nullification
  • trial

ASJC Scopus subject areas

  • Cultural Studies
  • Arts and Humanities (miscellaneous)
  • Law

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