I spent 5½ hours Tuesday warming a bench and cooling my heels in federal District Court. I had been summoned for jury duty.
I don't begrudge the obligation of making oneself available for a turn in the jury box, but luckily my number was not called. I remained in the back pew, unquestioned as voir dire winnowed the pool to a manageable number.
I say "luckily" because the trial at hand was a federal drug case. All the potential jurors in the rows in front of me were being queried as to whether they had any opinions that would make it difficult to follow the applicable federal drug laws the fellow before us was accused of breaking. The judge also explained he would determine the law -- the jurors merely the facts.
There were the usual problems in the pool: language difficulty, pressing job concerns, past convictions, relatives who were victims of crime. But not a single person had so much as a qualm or a quibble about sending someone to prison for violating federal drug laws or following the judge's orders.
Maybe it is an occupational hazard, but I have lots of opinions about such things. Luckily, I never got to express them and potentially pollute the pool with legal heresy.
You see, I can't recall any passage in the Constitution that grants Congress the power to prohibit the possession, use or commerce in certain kinds of drugs. Tax them, maybe, but ban them?
I know those of us who try to apply the literal meaning of the 10th Amendment are presumed to be crackpots and hopeless nostalgists, but there had to have been a reason the Anti-Federalists insisted on the Bill of Rights.
"The powers not delegated to the United States by the Constitution" are reserved to the states and the people. The Constitution delegates no such power.
But such simpleton notions were dismissed out of hand without so much as an effort to explain why when the Supreme Court in 1921 ruled: "The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question."
For some inexplicable reason, they found no reason to apply the same standards to drugs as had been applied to alcohol the year before under the 18th Amendment. Congress had no power to ban alcohol without changing the Constitution, but it could allow what started out as a tax on opiates to morph into a de facto drug prohibition.
I'd say I have an opinion on that.
As for following instructions as to the law, there's an opinion and a qualm there, too. As a practitioner of the dark journalistic arts, I have been exposed to and infected by that most celebrated case of jury nullification, the case of John Peter Zenger.
In 1735, a Colonial jury acquitted newspaper printer Zenger of libel because they found the anonymous article in his paper criticizing the governor of New York to be true. Under the law at the time, truth was not a defense. Mere criticism was the libel.
John Adams, Founder and second president, once said of the juror, "It is not only his Right but his Duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."
John Jay, co-author of the Federalist Papers and first chief justice of the U.S. Supreme Court, may have been a bit ambivalent on this topic, but he, too, tipped his hat to the juror, writing in a 1794 jury instruction "that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. (B)oth objects are lawfully, within your power of decision."
Luckily, no one asked my opinion.
Thomas Mitchell is editor of the Review-Journal and customarily writes about the role of the press, free speech and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell @reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.