Consent of the Governed & Informed Juries

Jury Nullification Jefferson
Jury Nullification Jefferson

Montana – -(Ammoland.com)- Thomas Jefferson was prominent among those who declared that our American system of governance was based entirely on “consent of the governed.”

This concept is further articulated in Article II, Section 1 of the Montana Constitution, which says, “All political power is vested in and derived from the people.”

This is a great concept, but how does it actually work?

It's always been a mystery to me how some people in the 1700s could have consented for me to be effectively subservient to the omnipresent and powerful federal monster-machine that exists in 2018.

There is the ephemeral theory that if I participate in modern affairs, I actively give my consent to be governed — the “social contract” theory. If I travel on public roads, if I have a sheriff's department available to respond to my need, or if I eat eggs for breakfast that may have been checked by the ever-helpful federal egg inspector, then I have consented to the myriad of ways that all levels of government affect me.

Honestly, I've never been able to cozy up to this oh-so-elastic theory.

Then there is the argument that by voting for people to represent me in legislative bodies, the city council, county commission, state legislature or Congress, I have expressed my consent for these people to enact laws with which I am bound to comply, because I have consented by voting. And, I am informed, I may also be punished if I fail to comply with these laws, punishment to which I have also consented in advance by voting.

However, there is one available mechanism whereby consent of the governed, or lack thereof, may be expressed very directly. That is through the power of informed juries.

It used to be a common understanding in American civics that jurors had the prerogative, even the duty, to vote in the privacy of the jury room to acquit an accused person if the juror believed that the person was being tried for violating an unfair or improper law, or under a law improperly applied.

Unfortunately, this principle is no longer taught in civics classes. Rather, judges tell jurors that their votes for guilty or not guilty must be based only on the facts of the case, and only the judge may consider the propriety of the law.

Despite this misinformation from judges, jurors still know about and jurors still act upon their unquestionable power to vote the juror's conscience in the privacy of the jury room. This is one way the consent of the governed may actually be applied in our modern era.

When northern juries refused to convict their neighbors of violating the Fugitive Slave Act before the Civil War, for aiding runaway slaves, these juries were withholding the consent of the governed. Fast-forward to current times, when a district court judge could not find enough jurors to constitute a jury, jurors willing to convict someone for simple possession of marijuana, he had no choice but to dismiss the charge. These prospective jurors were simply withholding their consent to be governed in this particular way.

Although just how consent of the governed is applied in our modern era remains less than clear, certainly one shining example of that principle is informed juries that refuse to enforce bad laws, laws for which jurors simply refuse the consent of the governed.

Gary Marbut is president of the Montana Shooting Sports Association, accepted as an expert in state and federal courts concerning self defense and use of force, and the author of “Gun Laws of Montana.”


Read more at Jury Nullification – The Second Amendment’s Last Stand.

  • 3 thoughts on “Consent of the Governed & Informed Juries

    1. governing went OUT before the Civil War and was the CAUSE OF IT, NOT SLAVERY as those IGNORANT FOOLS SPEW.
      go back and check AT LEAST 15 YEARS OF HISTORY BEFORE that war and the REVOLUTIONARY WAR AS WELL.today we the people are RULED BY A DETERMINED COMMUNIST CORRUPTED TREASONOUS AND CRIMINAL ENTERPRISE CALLED GOVT.
      who MEAN TO RULE PERIOD, don’t think so? then explain the NOW MILITARIZED POLICE, WHO ENFORCE RULES NOT LAWS.
      and the STATES ARE LITTLE IMAGES OF THE FEDERAL GOVT.
      who also RULE FROM THE BARREL OF THE GUN, like their BIG DADDY.
      the AMERICAN PEOPLE DON’T EVEN KNOW WHAT FREEDOM IS ANY MORE.

    2. Yes, juries are wonderful as long as they are not rigged. Following a motor vehicle accident that a good friend of mine was involved, in which he/she sustained permanent injuries to their spine when a careless motorist backed out of a driveway into their path with no room to stop, the jury deliberated exactly one hour, just in time to go home to lunch. They found the person backing out of the driveway 43% at fault, and the driver who was legally proceeding and had the right of way 57% at fault. There was no monetary recovery for the injured party who brought the suit, and none of the jurors had to explain their reasoning for this miscarriage of justice. The jury trial lasted several days during which many doctors testified as to the injured parties injuries. The next day, which was a Saturday, the injured party was in their front yard behind some bushes when they witnessed one of the jurors drive by slowly and crane his neck so as to scope out the house and up the driveway. As the injured party was processing this info, about 10 seconds later the insurance agent who sold the auto insurance policy to the injured party, also slowly drove by and craned their neck in the exact same way. Now, what is one to suppose from that ? Since I totally believe what this person told me, and because I know what a snake both of those drive by dirt bags are, I think that more often than not juries are tampered with by monied interests, or others with evil agendas.

    3. In 2012, the governor of New Hampshire signed into law a fully-informed-jury bill. Even though the law wasn’t to take effect until January of 2013, in September of 2012 a New Hampshire jury acquitted a 59-year-old Rastafarian man who grew marijuana for his own medicinal and religious use. The juror who convinced the jury to acquit was a shy, quiet woman whom I know, a member of the Free State Project. Our license plates display the state motto, “Live Free or Die,” and many of us take that seriously, whether the subject is fully informed juries or gun rights.

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