by Thomas L. Knapp
May 13, 2010
Among advocates of the stateless society it is considered a truism is that there’s no past “golden age” in which a limited state eschewed the temptation of tyranny and fulfilled its alleged promise as guardian of people’s rights.
It does not follow from that, however, that there is no continuum of evil along which states travel from bad to worse in terms of actual/ongoing (rather than potential/future) behavior. There is indeed such a continuum, and there are probably empirical methods for establishing a state’s position on it.
Let’s imagine that continuum.
At one end is a hypothetical ultra-minimal state which somehow manages to secure rights without violating them. I’m unaware of any such actual state in mankind’s history, and doubt that such a state is even possible, but no matter — its purpose here is to serve as a left-end anchor.
The right-end anchor is the ultimate totalitarian state. That state, or something approximating it, is a lot less hypothetical (think Soviet Russia, East Germany, North Korea), but instead of dealing with possible anomalies, let’s keep it hypothetical and go with Orwell’s Oceania: Everything in the state, nothing outside the state; violation of rights as policy, not side effect; even one’s thoughts are subject to supervision and to punishment for deviation from the party line.
All real-world states fall somewhere along this described continuum, and are at any given moment moving in one direction or the other along it. The middle of that continuum represents the tipping point at which a state becomes more likely to violate rights than to protect them.
How do we tell which side of that tipping point a particular state falls on? In the case of the United States, I suggest that the state’s attitude toward “jury nullification” may be the indicator we’re looking for.
Jury nullification is a practice firmly established in law since the late 17th century (and developing toward that establishment for centuries prior). Its basis is simple: Juries are empowered to try not only the facts of a case, but the justice of the law alleged to have been broken. This acts as a safeguard of rights against bad law.
In America, juries nullified the fugitive slave laws of the mid-19th century by refusing to convict persons accused of harboring and aiding runaway slaves. They also largely nullified alcohol prohibition by refusing to convict bootleggers and the operators of “illegal” drinking establishments. At some point those laws became “null and void” for lack of enforceability. The police could arrest and charge someone with breaking them, but they’d ultimately be freed by a jury which refused to convict.
A state more concerned with securing rights than with violating them would presumably cherish jury nullification as a safeguard against its own tendencies to respond to the siren song of tyranny. A state at the “balance point” of the issue might not carefully educate its jurors as to their prerogatives, but neither would it hide those prerogatives from them.
The state which actively conceals the prerogative of nullification from jurors can certainly be said to have moved to the right of the “tipping point of tyranny.”
This has been the case in the United States for decades now. Judges routinely instruct juries that they are required to apply the law as he or she gives it to them, without regard to their personal convictions on the subject of the law’s rightness or wrongness.
The next tick mark toward tyranny would become noticeable when the state actively works to prevent non-state actors from informing prospective jurors of their right to judge the law as well as the facts. We’re well past that point, too — and notice the Soviet-style approach. No jury would ever convict someone accused of attempting to protect jurors’ rights, so the solution is to treat the advocate as insane and drag him off for involuntary “treament.”
Donnelly was kidnapped off the streets of Allentown, Pennsylvania (interestingly, a state named for a man who helped establish the principle of jury nullification as a defendant!) by agents of the federal state earlier this week, and at this time remains caged in his abductor’s lair.
Donnelly’s “crime” was not declining, as a juror, to merely apply the law rather than follow his conscience.
Nor was his “crime” attempting to inform prospective jurors of their right to do so themselves.
Donnelly’s “crime” was shooting video of state agents as they attempted to intimidate activists who were distributing jury nullification literature.
This state doesn’t just conceal jurors’ prerogatives; it doesn’t just persecute those who advise jurors of their prerogatives. It kidnaps those who document its persecutions. That’s how far the agents of the state are willing to go to keep jurors ignorant — and that’s one BIG tick to the right on the tyranny continuum.
For more information on jury nullification, visit fija.org.
To find out how you can help free George Donnelly, see this action alert at Fr33 Agents.
reposted from Center for a Stateless Society