Constitution Lectures 6: Who is the Ultimate Arbiter? (HD version)
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Constitution Lectures 6: Who is the Ultimate Arbiter? (HD version)


In order to have an effective Constitution,
there needs to be a process for determining whether or not its requirements have been
met, or if it’s limitations have been exceeded. This inevitably leads to the controversy of
the Ultimate Arbiter. Is there one Ultimate Arbiter of the Constitution whose word is
the final say? And if so, who is it? Let’s start by asking the question, “Who
can decide if an act is unconstitutional?” We’ll look at the three branches, starting
with the Legislative branch. Certainly if a new act is under debate, the legislators
can determine for themselves if it violates the Constitution, If so, they can vote against
it. They can also review laws already on the books
if they wish, and if they find them to be unconstitutional they can repeal them.
No one disputes the power of Congress to do this, although they hardly do it at all anymore. The Judicial Branch is generally where the
decisions of Constitutionality are made, and particularly in the Supreme Court. Article
III gives the Supreme Court and its lower courts jurisdiction in all cases arising under
the Constitution, so they can absolutely knock down any law in any case before them as being
unconstitutional. It doesn’t get removed from the books, but prosecutors know that
trying to prosecute them is a lost cause. The first case where this was determined was
in Marbury vs. Madison in 1803. It happened after the lame duck Adams administration tried
to stymie the incoming administration by appointing 16 circuit judges and 42 justices of the peace
loyal to him and not Jefferson. Not all of the appointments were delivered by the time
Adams left office, and Jefferson ordered his executives not to deliver them.
William Marbury, one of the appointees who was stopped from taking office, sued secretary
of state James Madison—and lost because the case law he was depending on was found
to be unconstitutional. The court ruled: “If both the law and the
constitution apply to a particular case,…the constitution is superior to any ordinary act
of the legislature; the constitution, and not such ordinary act, must govern the case
to which they both apply.” This means that the courts have not only the
power, but also the obligation to strike down any law in abeyance of the Constitution. But what of the executive branch? Does the
President have the authority to decide for himself if a particular law violates the Constitution?
If so, is he obligated to refuse to execute the law? Or is he obligated to follow all
laws passed by Congress, without the ability to decide on their constitutionality absent
a Federal court decision? Let’s look at the words of Supreme Court
Justice Joseph Story in his Commentaries on the Constitution: “Whenever any question
arises, as to the exercise of any power by any of these functionaries, such functionaries
must, in the first instance, decide upon the constitutionality of the exercise of such
power. The officers of each of these departments are equally bound by their oaths of office
to support the constitution of the United States, and are therefore conscientiously
bound to abstain from all acts, which are inconsistent with it. If, for instance, the
president is required to do any act, he is not only authorized, but required, to decide
for himself, whether, consistently with his constitutional duties, he can do the act.”
So the President, like the Supreme Court, not only has the power to refuse to execute
bad laws, he also has the obligation to refuse to do so. Okay, so any functionary, the President or
whoever, has to make the decision at the time as to whether or not his act contravenes the
Constitution. But this hasn’t really helped us determine who the Ultimate Arbiter is.
Who has the final word? To try and find the answer, let’s go through
the process the government must go through in order to convict someone. In the first place, a law must be passed.
No one can be prosecuted for breaking a law that doesn’t exist. As we saw in Lecture
3, Congress absolutely has the ability to not pass any law, or repeal any existing law,
they determine to be unconstitutional. But let’s say they don’t. Let’s also say that this particular law
has been upheld by the Supreme Court. There was a case some years ago, and the court found
it constitutional. Now a citizen is arrested for violating this
law. In order for this to happen, the arresting officer, who swears a constitutional oath
just like everyone else in government, must be satisfied that the law does not violate
the Constitution. Likewise, the prosecutor, having sworn the same oath, must feel that
the law is not contrary to the Constitution. But what if the prosecutor brings the person
into court anyway? Then it goes to a trial by jury. The defense
might be able to get the case thrown out on Constitutional grounds before it goes to trial—that’s
the right of the writ of habeas corpus, the foundation for all our other rights—but
if that doesn’t happen, all of the evidence is presented to the jury and it is in their
hands. Despite the fact that prosecutors claim to
represent the people, it is really the juries who do. The prosecution represents the government.
In order to put someone in jail, you have to run it by a jury of the defendant’s peers—the
representatives of the people—before you can lock him up.
Can the jury make the decision as to whether or not the law the defendant is accused of
breaking violates the Constitution? Or is the jury helpless in this regard, stuck with
whatever the judge instructs them? The idea that the jury can decide that the
law is wrong and vote to acquit a defendant anyway is called “Jury Nullification,”
and it has an old and honorable history going back before the founding of our country. Probably the earliest trial that established
Jury Nullification was when William Penn was arrested for preaching the Quaker religion
in 1670. His trial was presided over by the Lord Mayor of the City of London, who pressured
the jury to convict. When they acquitted Penn, the Lord Mayor threw them in jail for contempt.
They went without food, water, or access to toilet facilities for four days, but never
relented. Finally, the Lord Mayor had no choice but to let Penn and the Jurors go.
This set two important precedents: 1) that an acquittal from a jury cannot be overturned,
and 2) a jury cannot be punished for delivering a verdict the judge doesn’t like. Their
word is the last word, in that particular case. Of course, a jury verdict only applies to
that one case, but a pattern of jury nullification can have lasting effects. In 1734, newspaper
editor John Peter Zenger was arrested for seditious libel after printing an article
critical of the Governor of New York. At this point, truth was not considered to be a defense
to libel. His lawyer, Andrew Hamilton, convinced the jury that the law was wrong and Zenger
should not be faced with libel simply because he printed the truth. The jury agreed. This
set the ball rolling for a number of other instances of nullification of libel and slander,
and as a result, to this day truth as a defense to slander and libel is absolutely supported
in every court in America. Later on, American colonists such as John
Hancock were bypassing customs to avoid the Stamp Act. Jurors refused to convict them,
however, and this prompted the King to declare such matters under admiralty law, bypassing
the jury requirement. This is the reason for the trial by jury complaint in the Declaration
of Independence, and Hancock’s lawyer, John Adams, spoke most emphatically of the juror’s
ability to determine the legitimacy of the law.
At the time the Constitution was ratified, nullification was universally considered to
be a part of trial by jury. Remember from Lecture 2 that only an amendment can change
the meaning of the Constitution; the opinion of judges on nullification today doesn’t
matter. Juries still have this ability. It continued well into this country’s history.
Throughout the 1800s, jurors refused to convict runaway slaves and return them to their masters,
and they refused to convict those who helped them escape. The fugitive slave laws, allowed
by the Constitution at that time, had to keep being revised and strengthened as they faced
greater and greater opposition from juries. Slavery was ultimately repealed by the 13th
Amendment in 1865, but if it hadn’t been it seems clear that jury opposition to slavery
would only have grown stronger. Jury nullification continued in the labor
trials of the late 1800s. Workers who were mistreated by the big corporations that had
sprung up began to form unions and to strike. They were prosecuted under the law, but juries
refused to convict them. This is where the first salvo against jury
nullification was fired: in 1895, the Supreme Court, pressured by the large corporations,
ruled that courts no longer had to inform juries that they could veto an unjust law.
They didn’t have the power to remove the right of jury nullification, but they did
put a stop to the courts informing juries that they have this right. They also began
deliberately lying to the juries, saying that they may only consider the facts of the case
and not the law—in abeyance of centuries of precedent. They also stop defense lawyers
who try to inform juries of this right. Nonetheless, jury nullification continued.
During Prohibition, juries kept refusing to convict people accused of selling or consuming
alcohol. This was a major contributing factor in the repeal of Prohibition.
And it hasn’t stopped there. It was used during the Vietnam War to stop the persecution
of protesters, and it is used today in states where medical marijuana is legal to prevent
Federal conviction of medical marijuana patients. But it doesn’t happen as often as it should,
as not only are juries misinformed, they are also being instructed to inform the judge
whenever a juror is arguing for nullification. But it still happens. Because for everything
they’ve done, they still cannot change the fact that an acquittal cannot be overturned,
and a jury cannot be punished for its verdict. That is the essence of Jury Nullificaion. What this means is, the ultimate arbiter is
the people. The voice of the people through juries has been used many times before and
during our country’s history to stop bad laws, and to stop the abuse of legitimate
laws. Not only that, but the power of the people
to change the Constitution through the process of amendment gives them one more weapon. An
amendment can clarify the people’s position on how the Constitution reads, or change the
meaning of the Constitution altogether. Once again, you now have information that
most American citizens lack, and even Constitutional Law attorneys and professors. They’ve spent
so long telling us that we’re helpless and have no recourse but to follow the law no
matter what it is, that we’ve come to believe it. And as long as we believe it, it’s true.
But the day we reject it, the day we realize that all legitimate power comes from the people,
is the day that we can begin to take our country back again.
Every tyrant lives in fear of the day the people realize that they are stronger than
he is, and that he only rules as long as they allow him to. We have more power as people
in this country than any country before us; it’s time we started wielding it for ourselves
again. Until next time, stay strong and be free.

52 Comments

  • omegavalerius

    But isn't what you described at the end, talking about the ultimate arbiter, democracy? At least in my vocabulary democracy means that the ultimate power in all three branches of power is with the people. If its representative democracy the power vested in the people is used by a body of representatives (a Parliament). Further the constitution can only be changed if the people or their representatives so choose, whether it is by amendment or by revising it in other ways.

  • Shane Killian

    We're not a democracy, though. We're a republic. I once calculated that the Constitution could be amended by as little as 11% of the population, if they were distributed just right.

  • omegavalerius

    So what is the difference then between a republic and a representative democracy? In both cases the ultimate power is with the people who choose who represent them in some system of Parliament. In both cases you can base the legitimacy can be founded on a constitution and popular suffrage and in both cases you can have a separation of powers.

    Indeed I learned that James Madison described a republic as a representative democracy as opposed to a direct democracy.

  • Shane Killian

    You can be a republic with any kind of government (although it's harder with something like a dictatorship). Even though we're a representative democracy, neither the people nor the ones they elect are supposed to be able to do whatever they want just because it's the will of the people. We're a government of laws, not men.

  • RyuDarragh

    That's right. Violation of their Oath and their Contract are the only consequences for the LEO. "I was only following orders" was not accepted at Nuremburgh as a defense and can't be accepted by any officer of any orginization.

  • omegavalerius

    @shanedk
    Fuck I hate this new comment system.
    Anyways back to the point. Any western
    representative democracy is a
    constitutional democracy. It doesn't
    change the fact that the people have
    ultimate power and if they so choose,
    can alter the law as they please (given
    the required majority of course).

  • Harvey Cotton

    What?! 2/3rds of both Houses of Congress and 3/4ths of the state legislatures. There is no way you can do that with 11%. Please explain.

  • Shane Killian

    @clownpenisfart So you need majority voters in 3/4ths of the states. So eliminate the 12 most populous states. Then count only the registered voters. Then consider that the usual turnout is 40%. Then consider you only need 51% of that 40%. Last time I did the math, it ended up being about 11% of the population.

  • Marine4God

    omegavalerius, What is called a Constitutional Democracy else where does not make it the same as the U.S. Constitutional Republic we have in America. Calling a Constitution the same as another Constitution would be like saying red is red, the paint supply houses would beg to differ. Remember the ultimate power is with the states, not the people else we would not have an electoral college to elect the President. There has been several times when the popular vote did not pick the wining President.

  • BunnyProle

    FINALLY! It's about time I see someone informing the public on this matter. Actually, to my discredit, I knew and did nothing. But this video made me want to hand out information pamphlets about this outside our county court-house. The rest of the country needs to be informed. Thanks Shane!

  • Shane Killian

    @undercover343 Yes: you were using a cheap ploy to discredit the argument instead of refuting it properly. It's a common tactic among creationists, moon hoaxers, and other peddlers of insane garbage.

  • Shane Killian

    @undercover343 Going with what the Constitution actually says is NOT being "closed-minded." So, there's one more way you're like the creationists: this is EXACTLY what they say about people who insist that evolution is true!

  • Shane Killian

    @undercover343 No one is "believing in" the Constitution, asshole. The Constitution is THE SUPREME LAW OF THE LAND. It's the document that forms our government and gives it its powers. Saying that Congress can just ignore it whenever they want is to say that the law doesn't apply to them.

    If you don't like it, propose an amendment. How many religious books get to be amended, asshole?

  • Shane Killian

    @undercover343 See, THERE'S that assumption–same assumption of the religious and other dogmatists. Who says ANYONE should be doing it?

  • Shane Killian

    @undercover343 Child rape IS illegal. Don't change the subject from your despicable original claim; this is the first time you've even MENTIONED child rape, and your claim was that ALL religious practices should be banned.

  • Shane Killian

    @undercover343 They don't recognize circumcision as genital mutilation, and that is NOT based on what religion you are!

    Now, stop with the dishonest weaseling and support your original assertion.

  • Shane Killian

    @undercover343 Yes, you did! You said: "The first amendment needs to be changed, that part where it says that governments will not make any laws that forbid the practice of any religion, needs to be removed!" With NO exceptions! You want government to be able to make ANY law they want to forbidding ANY practice of ANY religion!

  • Shane Killian

    @undercover343 Look, you can make human sacrifice illegal without getting into First Amendment issues, as long as you make it illegal for EVERYBODY. The First Amendment is about not favoring ANY one group over others based on religion. Eliminate that, and the door is WIDE OPEN.

    A protestant could get into power and say that Catholics can't use the Post Office. A Catholic could get into power and say that Jews can't drive on Federal roads. Wide open!

  • Shane Killian

    @undercover343 No, genital mutilation needs to be illegal. Make it illegal for everybody, and you don't go against the First Amendment! What about this can't your pathetic bigoted mind understand?

  • Shane Killian

    @Luigi84289 Genital mutilation IS NOT PERSONAL FREEDOM!!!

    "If I want to cut mmy balls off that is my right"

    We're not TALKING about doing it to yourself! We're talking about parents having innocent babies strapped to the table and mutilated, usually without ANY anesthesia!

  • Shane Killian

    @vspqbd Everywhere in jurisprudence, jury nullification refers to the jury nullifying the law and acquitting an innocent person railroaded under a bad law.

    Judges can overrule the decision of a jury if the jury convicts under a set of evidence where no reasonable jury would find guilt, but a judge can NEVER EVER reverse an acquittal.

  • Gregory Bogosian

    You have it backwards, we know that evolution is true because it really is true, not the other way around. No one can know that something is true unless it really is true.

  • HondoLane76

    Your Judicial Review comments may be inaccurate: 1 No where in Art III does the constitution provide for Judicial Review 2 MarvMad despotically claims this power for itself 3 this power was made politically by the federalists in resopnse to Jefferson becoming president and not under the constitution. Also I note you don't mention the 10th amendment wich may provide for an argument that the states may have some power in dermining constitutionality. v/r Hondo

  • Shane Killian

    "No where in Art III does the constitution provide for Judicial Review"

    Section 2 clause 1 gives them judicial power over all cases arising under the Constitution. And one could also that the oath judges (and all other government agents) swear under Article VI does, too.

    The problem is not saying the Supreme Court can strike down unconstitutional laws; it's saying that the other branches CAN'T. ALL government agents are DUTY BOUND to refuse to violate the Constitution.

  • Shane Killian

    And yes, that includes the states. They have the power of nullification, and are duty bound under their Article VI oath just like the rest.

    Seems like someone didn't watch the video!

  • HondoLane76

    How do you get from "judicial power over all cases arising under the Constitution" to the power to resolve the conflicts between congressional law and the constitution and what to do when there is such a conflict? Also, if the "oath" provides for judicial review powers wouldn't that mean that all branches (and even police and military) have the power of judicial review, not just the SC? Baring further info I'm inclinded to site the states and people with judicial review and not the Sup Cort.

  • Shane Killian

    "to the power to resolve the conflicts between congressional law and the constitution and what to do when there is such a conflict?"

    Because that's included in "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

  • Shane Killian

    "Also, if the "oath" provides for judicial review powers wouldn't that mean that all branches (and even police and military) have the power of judicial review"

    Well, not judicial review, because they're not judges, but their own review, yes. Each and every one should evaluate if what they're doing violates the Constitution, and refuse to do it if it does. Remember the idea is that unconstitutional laws were never really the law to begin with.

  • HondoLane76

    You're the first constitutionalist I've run into to argue that judicial review is constitutional. What is meant by "under their authority?" Why does the rest of A3S2 articulately define the cases the SC can hear but does not mention judicial review? What about Marshal's conflict of interest? Why did Hamilton pull away from the federalist papers opinion and not press for JR to be spelled out in the text of the constitution (b/c it wouldn't have been ratified with it in there).

  • HondoLane76

    If JR is constitutional who gets to "check and balance" the SC's JR? JR gives the SC supreme power. In Jefferson's words, JR "would make the Judiciary a despotic branch." I'd be interested to watch a video by you explaining your views on how JR is constitutional. v/r Hondo

  • HondoLane76

    How can an oath of a judge be different than the oath of a senator? I don't think that would fly in the face of the constitution. However, I do agree emphatically that every govt official (especially police and military) must perform their duty in accordance with the constitution. I'm a huge supporter of oathkeepers (dot) org and its founder stewart rhodes (a decorated and accomplished constitutional scholar). v/r Hondo

  • Shane Killian

    No, because ALL of the government has that same power: to not enforce acts that are repugnant to the Constitution. Again, the problem is the idea that it's somehow unique to the judiciary.

  • Shane Killian

    "How can an oath of a judge be different than the oath of a senator?"

    It isn't, that's the point! If judges can't do this they'd be the ONLY government agents who couldn't! What sense does that make?

  • HondoLane76

    If the SC strikes down a repugnant law can the president strike down the SC ruling….NO, neither can the congress. Therefore if you are claiming that the oath the SC takes allows them to invalidate a repugnant law passed by congress you would be claiming that the oath of the SC has a different meaning and related powers than the oath taken by everyone else (otherwise the pres could invalidate a SC ruling). Google Jefferson on this and see what he has to says. v/r Hondo

  • HondoLane76

    btw I appreciate and value all your opinions on this as I'm NOT a lawyer or historian. I'm just trying to understand things. You have different opinions in a few key areas (such as JR) than most I've studied (like Judge Andrew P. Napolitano and Stewart Rhodes). v/r Hondo

  • Shane Killian

    "If the SC strikes down a repugnant law can the president strike down the SC ruling."

    Learn how nullification works. As soon as one party says, "This is unconstitutional, I'm not doing it," EVERYTHING stops. It doesn't matter if it's the President, a cop, a prosecutor, or a judge. The SC is the "ultimate" arbiter only in the literal sense of the word: the last in sequence, since there's nowhere to go after that.

  • HondoLane76

    We are not talking about nullification, we are talking about the despotic and unconstitution power of judicial review bestowed upon the SC by itself which you are saying (by your interpreation) IS included in the constitutional partly becuase of the oath the SC takes. RE: nullification, if the Pres. says he thinks a bill is unconstitutional he vetos it. However, the congress can still pass it. So actually NOTHING stops. The laws is passed and …to the clink you go!

  • Shane Killian

    When the SC strikes down an unconstitutional law, nulliication is what they're doing.

    "Pres. says he thinks a bill is unconstitutional he vetos it. However, the congress can still pass it. So actually NOTHING stops."

    The President can and should refuse to enforce an unconstitutional act.

  • HondoLane76

    Wait a minute. I'd like to redact the "RE: nullification" clause of my previous stmnt. Isn't nullification the right of the state to strike any federal law it believes unconstitutional?

  • HondoLane76

    I agree that the Pres should refuse to enforce it. Do you know of any cases where this has actually happened?

  • Shane Killian

    Thomas Jefferson refused to enforce the Alien and Sedition Acts. James K. Polk refused to enforce Congress's declaration of war against Canada to set the Canadian border at the 54°40' parallel, instead negotiating the Oregon Treaty to set it at 49°. I'm sure there are more examples.

  • Shane Killian

    Nullifcation is the right of ANY government agent to refuse to enforce a law they consider to be unconstitutional.

  • Article Vorg

    Care to explain this one to folks? It is hard to do.
    http://www.examiner.com/article/u-s-house-finally-adopts-rule-to-count-article-v-convention-applications

  • Funky Euphemism

    I am confused. I am familiar with your history/summation of what nullification is and how it works; except at the end when you say that jurors are instructed to inform judge of any jurors arguing for nullification.
    I can personally attest to the fact that judges and prosecutors will never acknowledge such a concept exists and will aggressively silence defendants at the mere mention… However, I have never sat on a jury, nor heard of the instruction to snitch on jurors. How can the court warn the jury to report jurors arguing for nullification without acknowledging this concept exists. I mean, they will not even mention nullification for the purpose of saying "there is a specious concept called nullification, that should have no bearing on your judgment."

  • Clarence Rankins

    What law says that the jury has to obey the law instead of the facts of the case? This is crucial because i have heard a judge tell the jury look at the facts of the case. They omitted the part tellibg the jury not to look at the law.

  • Charley Dan

    To think the thirteenth amendment was to release slaves is false. All it did was deny people to own slaves and transferred them to government slaves and now allowed all Americans to be slaves.
    Jury nullifying, use it and see how fast your removed by the judge. So if you disagree. Do it with out saying Milligan.

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