Originally uploaded at SSRN.

Abstract

Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the facts of a case and offer solid, though mixed, support for the longstanding doctrine against the jury’s right to nullify statutes on the basis of its own constitutional view.

The Article furthermore makes a case for the jury’s unique “constitutional competence.” Composed of a diverse group of lay people, the jury brings popular values to bear on the application of constitutional law. By deferring to the jury’s reasonable constitutional judgments, courts make room for popular constitutional norms on a case-by-case basis without forgoing the responsibility to “say what the law is.” The resulting constitutional construction is a middle ground between judicial supremacy and judicial abnegation that promises a more symbolically and substantively democratic constitutional law.

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