Jury Nullification and the Constituent Power of the People

16 Pages Posted: 10 Apr 2017

Date Written: April 6, 2017


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.

Keywords: Jury, Trial, Nullification, Hannah Arendt

JEL Classification: K10, K30

Suggested Citation

Burns, Robert P., Jury Nullification and the Constituent Power of the People (April 6, 2017). Northwestern Public Law Research Paper No. 17-10, Available at SSRN: https://ssrn.com/abstract=2948934 or http://dx.doi.org/10.2139/ssrn.2948934

Robert P. Burns (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-6613 (Phone)
312-503-8977 (Fax)

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