Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.
The wording of this resolution raises a few questions. After all, jury nullification already is used in the status quo in the face of perceived injustice. The U.S criminal justice system has documented many examples of its use through the last 240 years in the context of some potential miscarriage of justice. But, jury nullification is not a constitutional right, nor is it actively encouraged, at least not on the federal level, in 2015/2016. So one may wonder, is the intent of this resolution to suggest it should be legitimized in the form of a law authorizing its use? I don't believe so. The facts as I have seen them is, the power of the jury to nullify the law is discouraged throughout the criminal justice system and while the U.S. courts have never openly punished a jury for exercising the power, it has ruled it illegal. Additionally, there have been steps taken to guard against its use, including not informing jurors of the power, and removal of jurors who promote nullification. For this reason, I think it is correct to view the resolution as a call to continue to permit the practice as a valuable and legitimate response to 'perceived injustice'. Is it possible the government would actually abuse its citizens? It is possible in 21st century U.S.A. the laws and their associated penalties could be used by courts to unfairly target certain individuals or groups for unfair or improper treatment? Nah, now go back to sleep and let the older kids debate this topic.
The Founders Supported Nullification
Students of jury nullification will no doubt read of the famous Bushnell's case in which William Penn (founder of Pennsylvania) and William Mead were tried for illegally discussing a religion other than the Church of England. The jury refused to convict despite the preponderance of the evidence. The judge incarcerated the jurors for contempt but a Judge Vaughan released them as he believed it was improper to punish a jury for rendering a decision the court did not agree with.
According to many scholars, the majority of Founding Fathers were in agreement with Judge Vaughan.11 Approval of the jury’s right to nullify is found in “the writings of some of the most eminent American lawyers of the age – Jefferson, Adams, Wilson, Iredell, and Kent, to mention just a few.” Thus, it was not only Anti-Federalists who sought to use the jury as a check against the government, but also well-established Federalists, including even the first Chief Justice of the Supreme Court, John Jay.[412-413]
Certainly any number of activist sources commonly promoting jury nullification will be quick to remind you of a statement from U.S.A.'s first Justice, John Jay, "The jury has a right to judge both the law as well as the fact in controversy." and the sentiment repeated by Justice Oliver Wendell Holmes in 1902, "The jury has the power to bring a verdict in the teeth of both law and fact." These kinds of expressions convey the fact it was commonly believed the role of the jury was to not only discover the facts of the case (evidence, testimony, analysis) but also to render a verdict on the applicable law.
This vision of jurors and their ole as political actors is present in the Founders’ discussion of the Constitution and the role of the law in postRevol utionary America. They conceived of the jury as the space where the law met the governed and, in so doing, became whole. To the men writing and contemplating the ratification of the Constitution, the jury was a forum where justice emerged because citizens could decide the meaning of the law (as opposed to having the meaning dictated to them by a judge or some other formalized body such as a legislative or executive branch). In this vision, the law was not a static text but a moving one that depended on citizen interpretation, debate, and even dissention in order to survive. It was a true common law. The ordinary man knew it and gave it meaning through his interaction with it, the application of his own moral values upon it, and his acceptance of it. Encompassed in this vision was a right of nullification [670-672]
As Carroll deftly points out in her essay, "The right to a jury is the only right present in both the body of the Constitution and the Bill of Rights." [Carroll:673] and it was would have been in keeping with their revolutionary spirit to establish a citizen body to check the power of an overreaching authority which leads us to the next contention.
The Jury as Bulwark Against Tyranny
In the case of Duncan v Louisiana (1968), a black youth charged with assault of a white teenager was denied his request for a jury trial. This, denial was eventually appealed to the U.S. Supreme Court where Justice Byron White very clearly explains the purpose of the jury.
Justice White (via Clarke) 1968:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.
It should not be surprising the devices utilized to limit the oppression of tyrants in the U.S. finds its roots in the mindsets of the Founding Fathers and in the idealism birthed in the American revolution. Tyranny raises it's head in many places, from the obvious power-grabbing dictator to the subtle but equally oppressive tyranny of a dominate ideology or culture, to an oppressive, rigid justice system.
The importance of the right to a trial by jury in civil cases was also eloquently defended by the late Chief Justice of the United States William Rehnquist when he stated, “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Indeed, it is fair to say that the “tyranny” from which American and Texas citizens sought constitutional protection was, at least in part, from the judiciary itself. 
Nullification Enhances Law
No doubt since the early days of the nations foundation, the system of laws and jurisprudence has matured and strengthened through a natural process of judicial review and public opinion. In many ways today's system of law is a highly formalized and rigid structure designed to withstand challenges and judicial scrutiny while providing for some discretion by adjudicators in deciding the fate of a guilty defendant. The criticism of law lies in its perceived lack of discretion with respect to individual circumstances or community standards which may justify a different interpretation of fairness or justice. This would require a system that is less formal and more functional.
Alternatively, one can reconstruct the theory of the rule of law around notions of functionalism, as opposed to formalism. In this construction, the rule of law expands to encompass competing visions and legal interpretations. The definition of what is law is shifted from the static text alone to the enforcement and endorsement of that text within the community. This reconceptualization of the rule of law strikes a compromise between what one might call the “rule of text,” which can be static and overly rigid, and the “rule of man” (at the other end of the theoretical spectrum), which can be too unstable and left to every individual to decide. This happy medium recognizes that the law must and will be interpreted in order to achieve larger goals of justice and equity. Sometimes this process of interpretation will confound the text of the law, requiring its modification or even abandonment. But without such a process, the law will lack genuine meaning. [693-694]
Thus we see the jury as an active component of the law, giving it a human face and enhancing its ability to be effective in accordance with community standards. The law, at the right time and under certain conditions, exhibits a needed flexibility through the use of jury nullification.
In Dworkin's view, general principles provide a stable source of guidance to decide both individual cases for which no rule is directly on point, and cases in which seemingly literal rule application would yield a result widely considered unjust.
If people accept that they are governed not only by explicit rules laid down in past political decisions but by whatever other standards flow from the principles these decisions assume, then the set of recognized public standards can expand and contract organically, as people become more sophisticated in sensing and exploring what these principles require in new circumstances, without the need for detailed legislation or adjudication on each possible point of conflict.
Citizens, then, must discern and act upon the moral principles implicit in prior decisions in addition to explicit rules from courts and legislatures. "Rights and responsibilities flow from past decisions and so count as legal not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification." If we assume that laws are justified and made coherent only by the assumption of underlying principle, we can "treat... internally compromised statutes... as unprincipled, and we then have a reason for arguing that no official should contribute to his state's unprincipled acts." Dworkin's approach to law as "integrity" requires that "each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions. Integrity therefore fuses citizens' moral and political lives: it asks the good citizen.., to interpret the common scheme of justice ..... [1163-1164 Ellipses appear in original text]
The Inherent Value of Justice
In consideration of the fact this is Lincoln Douglas debate I would be remiss if I did not move beyond the contention level debate and look to the values inherent in the Affirmative position. The most prominent value which stands out and the one I think most novice debates can fashion convincing arguments is justice. We can accept the widely used (though over-simplified) Aristotelian interpretation of justice as "giving each her due". This brings to mind the concept of "just deserts" which is ingrained into the practice of retribution in the criminal justice system. It is the jury which assumes the role of the last check between the accused and her loss of property, liberty or life.
When I use the phrase, “the moral jury,” I mean to evoke a sense that the jury must play, and as an historical matter has always played, a critical role not only in deciding factual guilt but also in deciding moral guilt—that is, gauging, in some fashion, the seriousness of the crime and the justness of the desert. In its most dramatic form, the jury might actually impose the specific sentence. In less dramatic forms, it might issue an advisory sentence, make findings that allow the judge to aggravate the sentence, distinguish between levels of culpability, or even nullify. But in any retribution-based system that is not completely determinate, the jury, which represents a microcosm of social response that single judges never can, must continue to have some voice in expressing the moral judgment inherent in any criminal sentence. [455-456]
The view of the law as a highly formalized, immutable force will be carried in the Negative contentions if indeed they debate "rule of law" and is implicit in the Affirmative contentions which reinforces the need for a rational mind or minds to evaluate all of the nuances of a situation which justifies nullification. The Affirmative position is one of putting a human face and hope of rationality on the cold metal of institutionalized justice. A pragmatic analysis by the young debater will do well.
The Consequentialist Framework
Finally I wish to close this discussion of the Affirmative position with a discussion of the consequentialist framework. In the ideal sense, jury nullification is viewed as a power for protection of the natural rights. The U.S. criminal justice system is based upon the presumption of innocence and burdens the government or plaintiff with proving their case "beyond a reasonable doubt". The standard is high because the worst possible outcome arises when an innocent person is deprived of her natural rights. Studies suggest society views good outcomes less favorably if the procedures by which they are attained were unfair. Nevertheless, a bad outcome in the context of criminal justice is a violation of the protection of the innocent which is seen as expression of the social contract. Thus we hold to an ends-based principle of justice. Even under such a framework, the procedure which flies in the face of the rule of law and may be perceived as improper is jury nullification of the law. But acceptance of the Affirmative case imbues legitimacy to the procedure and thus imparts a sense of fairness upon the procedure which resulted in good outcomes.
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