For those neophytes who have never heard of Spooner, let me simply quote Murray Rothbard’s description from the September 1974 Libertarian Forum: “[H]e was undoubtedly the only constitutional lawyer in history to evolve into an individualist anarchist,” and “of all the host of Lockean natural rights theorists, Lysander Spooner was the only one to push the theory to its logical—and infinitely radical—conclusion: individualist anarchism.”

The table of contents of Steve Shone’s book outlines the major areas of political philosophy and economics about which Spooner wrote: Natural Law, Private Mail, and Property; Poverty and Economics; Political Obligation; Jury Nullification; Slavery; and Religion, Morality, and the Legal Profession.

Spooner’s concern with natural law and justice manifested itself in his lifelong arguments against slavery; government monopolization of money, credit, and the post office; government licensure of lawyers and restrictions on juries; taxation; seizure and confiscation of private property; and government interference with the natural laws of intellectual property.

Just one example will suffice to demonstrate Spooner’s unique interpretation of the U.S. Constitution and the natural right of human beings to use their property peacefully as they see fit. Before Spooner’s own private postal delivery company was harassed and put out of business by federal authorities in 1844, he published “The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.” In it he noted that the Constitution did not grant Congress a sole and exclusive right to establish post offices and post roads. In other words, the power given to Congress did not allow it “to forbid similar establishments by the States or the people.”

Furthermore, Spooner noted that no branch of the government had ever questioned the right of American citizens to mint their own gold coins so long as they did not attempt to imitate current coins of the United States. Spooner argued it was just as much a common-law right to deliver private mail entrusted to one’s care as it was a right “to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they bring, in competition with the coin of the United States.”

Although the author bills his work as “the first full-length work devoted to the ideas of Lysander Spooner,” Spooner’s writings are so extensive and comprehensive that some of his most important commentaries are not mentioned. One, reminiscent of Spooner’s famous No Treason series, is the appendix to his 1852 book, Trial By Jury. This short, seven-paragraph addendum epitomizes Spooner’s outlook on the nature of government, even before the citizens of the southern states were beaten into submission by federal armies and navies. Spooner wrote:

It was a principle of the Common Law . . . that no man can be taxed without his personal consent. The Common Law knew nothing of that system . . . of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. . . .

. . . Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; . . . Taking a man’s money without his consent, is . . . as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as cover for the act, alter the nature of the act itself. . . .

. . . The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

For anyone interested in the antecedents of contemporary libertarianism and individualism, Lysander Spooner: American Anarchist is a good place to start. Be prepared to meet a man whose ideas are radical.

Still, if that’s what you think, you’re wrong.

The latest entry in the genre, Thomas Woods and Kevin Gutzman’s Who Killed the Constitution?, is something different. It’s well worth your while.

Unlike some other writers, Woods and Gutzman don’t just place the blame for our present situation on a handful of bad Supreme Court decisions. Instead, they show how, in the twentieth century, all three branches of the federal government have spun out of control, completely abandoning any pretense that the Constitution constrains them at all.

Woods and Gutzman demonstrate how the executive branch claims virtually unlimited power. President George W. Bush damaged the constitutional fabric significantly, and the authors demolish the dubious constitutional scholarship of Bush’s court intellectual, law professor John Yoo. They point out, too, that presidents never have trouble finding “scholars” like Yoo to rationalize their power grabs.

But the authors also show that Bush did not do much of anything new. All presidents since at least Harry Truman have assumed they could make war without a declaration from Congress. In fact, most presidents since Theodore Roosevelt have assumed, as he did, that they can do anything they want in the absence of a specific constitutional restriction on their power. (Gene Healy’s recent book, The Cult of the Presidency, reviewed in the March Freeman, offers much additional detail on this subject.)

A Litany of Abuses

One chapter in particular illustrates this by exposing one of the worst, but most overlooked, government crimes in U.S. history: Franklin Roosevelt’s confiscation of everyone’s gold. This discussion also gives the authors an opportunity to offer an important bit of economic education as they explain why gold was used as money in the first place.

You might expect the chapter titled “Roads to Nowhere” to offer a familiar list of pork-barrel projects funded by Congress. Instead, the authors show that the federal government shouldn’t be funding roads at all, no matter where those roads go. Early presidents assumed they would need a constitutional amendment to fund “infrastructure” projects. Unfortunately, today they just assume it’s within their power and that assumption goes unchallenged.

Other chapters explore topics such as the Commerce Clause, which the courts have used to justify almost anything Congress does; the military draft, which violates the Constitution’s prohibition of slavery; presidential “signing statements” (written pronouncements by a president on signing a bill, often with the intent to modify the statute and especially to nullify its application to the executive branch), and President Truman’s attempt to nationalize the steel industry.

Two of the boldest chapters deal with what the authors call the “third rail of American jurisprudence”—Brown v. Board of Education and its aftermath. The authors show how Brown had no basis in the Constitution—and that the Supreme Court justices behind the decision knew it. Yes, the book’s authors actually say it: the Fourteenth Amendment’s text does not actually prohibit school segregation.

Even if that’s so, why attack this sacred cow when most everyone today opposes segregation anyway? Because if the Supreme Court can so utterly disregard the Constitution and the very idea of law in this decision to reach its own policymaking goals, then there really is no Constitution to speak of anymore. And that’s the point. As they say in their introduction, “the Constitution is dead.”

Beyond Redemption

Refreshingly, they don’t argue that the Constitution might be revived by electing the right people or bringing the right lawsuits. Indeed, they even suggest that our sorry result might have been inevitable—not only with this particular Constitution, but with any written constitution. After all, what do you expect will happen when you let federal officials determine the limits of the federal government’s power? That’s true regardless of who’s in office, or what they might say before being elected. Woods and Gutzman write: “People in power exercise all the power they can get, even after they have howled in the wilderness against legislating judges, imperial presidents, and the death of states’ rights.”

The authors also quote Lysander Spooner, who put the problem best when he wrote in the nineteenth century that the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

As Flint A. Lane, president of Paytrust commented, as a taxpayer, “I’m paying for advertising . . . for a competitor of mine.” Concerns are already being raised about whether the USPS will attempt to gain a position of legal privilege over certain e-services just as it asserts a monopoly over first-class mail.

The USPS is a government monopoly accustomed to operating at public expense. Although the USPS currently receives no direct cash transfers from the government, it is exempt from taxation and can borrow from the Treasury. Many people consider the main cost to be the inefficiency and expense wrought by the absence of competition. To such people, the Postal Service is a relatively benevolent expression of government, offering a vital service that would otherwise not exist on the free market.

The history of the USPS suggests something different, however. It chronicles centuries of civil-rights violations that began at the very birth of a national postal system and that have nothing to do with providing a service. Rather, the USPS promoted and protected the interests of those in power. In asserting the monopoly that allows it to do so, it has been indifferent or hostile to providing the best service at the lowest price. An infamous case of this hostility occurred in 1845, when private mail companies operated with relative freedom, including carrying first-class mail. One such venture was the American Letter Mail Company that had been established by the noted libertarian legal theorist Lysander Spooner. In his periodical Liberty (May 28, 1887), Benjamin Tucker described the situation that confronted his mentor: “In 1844, he [Spooner] started a private mail between Boston and New York, and soon extended it to Philadelphia and Baltimore, charging but five cents a letter between any of these points—a very much smaller sum than the government was then charging. The business was an immediate success and rapidly extending.”

Then, in 1845, in response to the fiscal threat posed by private companies, a congressional act imposed draconian fines on private carriers who dared to offer better service at lower rates. Tucker explained, “as the carrying of each letter constituted a separate offence, the government was able to shower prosecutions on him [Spooner] and crush him in a few months by loading him with legal expenses.”

Spooner had been so effective in demonstrating the superiority of private mail, however, that the post office was virtually compelled to lower its rates significantly thereafter. Thus Tucker dubbed him “the father of cheap postage in America.”

In his pamphlet, “The Unconstitutionality of the Laws of Congress Prohibiting Private Mails,” Spooner highlighted the inefficiency guaranteed by the act of banning competition in postal service. Once there was an enforced monopoly, he stated, postal officials would “feel few quickening impulses to labor” or “to move at the speed that commercial interests require.” The consequence would be “a cumbrous, clumsy, expensive and dilatory government system” that would be “nearly impossible to modify or materially improve” except by opening it up once more to “rivalry and free competition.”

But Spooner objected to a postal monopoly not merely or primarily because it cheated the public by requiring an extravagant fee for an inadequate service. His main objection lay in the argument that the monopoly violated individual and constitutional rights in at least three ways. First, Article I, Section 8, of the Constitution authorized Congress “to establish post offices and post roads,” but it didn’t bar others from doing so as well. The power to create was not a power to prohibit. The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Second, freedom of the press included—and, indeed, required—the right to privately distribute material to whoever wished to read it. A government postal monopoly would be able to ban periodicals from using virtually the only legal channels of distribution. This control constituted a direct affront to the First Amendment.

Third, a monopoly post office that can control the flow of information inevitably would be used to political advantage by those in authority. In “Private Mails,” Spooner argued, “Its immense patronage and power, used, as they always will be, corruptly, make it [the monopoly post office] also a very great political evil.” Tucker concurred and added that the reduction in rates that followed Spooner’s legal persecution had been a “sop” thrown to the public to keep them from calling for abolition of the monopoly.

Beyond the Superficial

Thus in viewing the current USPS, Spooner’s criticism would go far beyond superficial facts, such as the 4.6 percent increase in postage that went into effect in January. Certainly he would have pointed to the folly of propping up a government service with an expected fiscal loss of more than a billion dollars in 2001 when private companies are eager to compete. But he would have emphasized the civil-rights abuses—for example, the USPS’s obligation to share information with police and other law-enforcement agencies.

Consider Spooner’s claim that a postal monopoly constitutes a standing threat to freedom of the press and freedom of speech. This observation did not originate with Spooner. In colonial America the founding fathers were acutely aware of the censorious role that British control of the post office played. Sam Adams urged the creation of a parallel and private system so that information could flow freely from colony to colony and so establish political cohesion. He insisted that the colonial post office deceived the people into believing it was a public utility when its real purpose was to stop “the Channels of publick Intelligence and” aid “the measures of Tyranny.”

It was no coincidence that one of the first resolutions passed by the Second Continental Congress led directly to establishing the Constitutional Post as a reliable means of spreading information. Article IX of the Articles of Confederation (1781) granted the “United States in Congress” “the sole and exclusive right and power of . . . establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of said office.” An ordinance established the working rules of the post office, including a provision for licensing post riders to carry newspapers.

But reliability of delivery would not be the only goal of the new postal service. In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing “inspections” caused prominent men, such as George Washington, to complain of mail tampering. According to Unmailable: Congress and the Post Office by Dorothy Ganfield Fowler, the Continental Congress was soon debating whether some communications should be deemed “unmailable” because their content was too dangerous.^[1]

In practical terms, certain types of political expression were already experiencing problems with mailability. After the Constitution was drafted, it was sent to the states for ratification. During the bitter political debates, an ideological war broke out between the Federalists (who were pro-ratification) and the Anti-Federalists (who were anti-ratification). The Federalists dominated in the cities through which mail flowed. As a result, Anti-Federalists’ communications seemed to disappear or be strangely delayed. The Federalist Postmaster General Ebenezer Hazard came under particular attack for allegedly stopping the flow of Anti-Federalist information, especially between newspapers in different states that were eager to reprint one another’s articles. Under the penname “Centinel,” an Anti-Federalist wrote, “Attempts to prevent discussion by shackling the press ought to be a signal of alarm to freemen.” He continued, “every avenue to information is so far as possible cut off, the usual communication between the states through the medium of the press, is in a great measure destroyed by a new arrangement at the Post Office, scarcely a newspaper is suffered to pass by this conveyance.”

In 1797, with the new Constitution in force, Congress enacted the first law limiting what could be mailed. It was a modest prohibition against newspapers with wet print being posted because they tended to damage accompanying mail. But the definition of “unmailable” soon acquired political meaning.

In Andrew Jackson’s first annual message to Congress as President (1829), he declared of the Post Office: “In a political point of view this Department is chiefly important as affording the means of diffusing knowledge . . . . Through its agency we have secured to ourselves the full enjoyment of the blessings of a free press.”^[2] By 1835, however, Jackson’s address to Congress struck a different note concerning the post office and freedom of the press. Antislavery dissension was already apparent and contributing to the tensions that would eventually lead to civil war. Some Southern politicians and postmasters called for a ban of seditious literature—namely, antislavery literature—from the mails. Jackson recommended that Congress pass a law to allow the prohibition. A bill attempting to do so was defeated in the Senate on its third reading by a vote of 19 to 25. On a federal level, antislavery material was deemed “mailable.” On the state level, however, various Southern legislatures passed resolutions to restrict its circulation. Thus some Southern postmasters were placed in the position of having to break state laws restricting antislavery literature if they wished to obey a federal order to circulate it.

Controlling Public Morality

The censorship exercised by the post office—sometimes officially, sometimes unofficially—was not merely aimed at quashing political dissent and supporting political authority. Often the postal muscle was flexed to control public morality and to prevent social reform.

In 1874 second-class postal rates were granted to newspapers and magazines that met four requirements. They had to: issue at regular intervals of no less than four times annually; state the place of publication; have subscribers; and disseminate “information of a public character, or [be] devoted to literature, the sciences, or some special industry.”

The last requirement would be used as a basis for granting low rates to desirable mail and denying it to the undesirable. A year before, the Comstock Act of 1873 had provided a penalty of up to ten years’ imprisonment for intentionally mailing obscene material. Ominously, “obscene” had not been defined. But Anthony Comstock, a moving force behind censorship in late nineteenth-century America, had acquired broad power to interpret the Act named for him. He defined obscenity in such a manner as to include birth-control information and discussion of sexual issues, such as whether forced sex within marriage was rape.

Thus the post office exercised tremendous power over freedom of the press and the public expression of sexual morality. Birth-control information was especially targeted by two of the most infamous state persecutions in libertarian history. In 1877, Ezra Heywood, editor and publisher of The Word, was arrested for distributing a birth-control pamphlet titled “Cupid’s Yokes,” which advocated the abolition of marriage and contained a scathing personal denunciation of Comstock. Heywood was fined and received a two-year prison sentence but—under extreme public pressure, including a petition reportedly signed by 70,000 people—President Rutherford B. Hayes pardoned Heywood.

Undaunted, Comstock successfully arrested others who distributed the pamphlet and continued to persecute the editor for years thereafter. In 1890 Heywood was once again found guilty of mailing obscene material to subscribers and received two years at hard labor, which he served in full.

In 1887, the editor and publisher of Lucifer the Light Bearer, Moses Harman, was arrested for publication of a letter that identified forced sex within marriage as rape. The grand jury indicted Lucifer on 270 counts of obscenity under the Comstock Act; the charges were eventually discarded. Not to be thwarted, the district attorney procured a new set of indictments, 216 counts in all. Due to public controversy, however, the case was continued over until 1890, when Harman was finally sentenced to five years’ imprisonment, then released on a technicality. In January 1891 Harman was sentenced to one-year imprisonment on another obscenity charge, with another writ of error ensuing. The legal persecution continued for years.

Postal harassment preceded Harman’s final arrest in 1896. Lucifer had been denied the use of second-class mail rates until the matter had been successfully appealed to the authorities in Washington. Even then, the Chicago post office—the city in question—confiscated and destroyed individual issues that it independently declared “obscene.” One issue was destroyed because it contained an article by the venerated feminist Alice Stone Blackwell, which had been reprinted from the conservative Woman’s Journal.

Finally, at age 75 Harman was sentenced to and served one year at hard labor. From Cook County jail in Chicago, Harman had explained that the cause of his persecution had been Lucifer‘s mission “to help woman to break the chains that for ages have bound her to the rack of man-made law, spiritual, economic, industrial, social and especially sexual, believing that until woman is roused to a sense of her own responsibility on all lines of human endeavor, and especially on lines of her special field, that of reproduction of the race, there will be little if any real advancement toward a higher and truer civilization.” It was in reference to Harman’s imprisonment under the U.S. postal laws that the British playwright George Bernard Shaw coined the term “Comstockery.”

The post office routinely used repressive tactics against socialist and labor periodicals in the late nineteenth and early twentieth century to control the flow of radical information. Such Comstockery continued past World War II as a policy of the Cold War. On October 11, 1962, for example, the Cunningham Amendment—designed to restrict the circulation of communist literature that originated in a foreign country—became law. On a less official basis, the Post Office Department began to keep a list of everyone who received the questionable mail. In 1965, the Supreme Court ruled that the Cunningham Amendment was unconstitutional because it limited the First Amendment rights of the addressees.

Over and over again, the goals of the USPS have come into conflict with the First Amendment that assures freedom of the press and speech. Civil libertarians demand to know whether freedom of speech extends to privately written words in letters as well as to public written words in newspapers. And if not, why not?

Arguably, the USPS has also violated the Fourth Amendment, which guarantees the right of people to be secure against unreasonable search and seizure. The postal prerogative to open and examine letters raises this question. If the USPS did not have the privileges of a legal monopoly, it could not enforce policies that violated the rights of its customers.

A recent attempt by the USPS to maintain its monopoly control was embodied in Postal Bulletin 21994 (March 1999). The bulletin targeted one of the USPS’s major competitors—private mailbox providers that serve millions of people, especially people with small businesses or who wish to preserve their privacy. The bulletin orders mailbox providers to have each customer fill out a new form requiring two types of identification and various other personal data. For example, the form for businesses requires the home addresses of officers and directors. The bulletin also states that if a business deals “with the public,” anyone walking in off the street has a legal right to view the business’s data.

Material addressed to a private mailbox is required to have the acronym “PMB” (Private Mail Box) on a separate line preceding the box number itself. The bulletin’s stated purpose is to reduce mail scams, but the USPS either could not or would not provide data linking private mailboxes to fraud. Jere Glover, chief counsel of the Office of Advocacy of the Small Business Administration (SBA), insisted, “There is no indication that using a “#” or “PMB” in an address will in any way deter fraud.” The Office of Advocacy has asked the Justice Department to review the rule, which is scheduled to go into effect August 26, 2001.

The USPS never mentions two of the main impacts of this measure. First, it provides the government with the names and addresses of every individual and business who rents a private box. Individuals to whom privacy is critical—for example, women living apart from abusive, violent spouses—will no longer trust the confidentiality of private mailbox providers. (Although the USPS promises confidentiality, the mailbox companies advise people not to use credit cards as the recorded identification.)

Second, many small businesses are discouraged from using private mailboxes with a designation—PMB—that stigmatized them as “second class” (non-storefront) ventures. Thus another competitor of the USPS is placed at a disadvantage in the marketplace. (For more on this issue, see PostalWatch, www.postalwatch.com, a not-for-profit organization that alerts the private sector to intrusions by the USPS.)

Those who argue that the worst sins of the USPS are its inefficiency and high cost may be overlooking the possibility that an efficient and cheap mail service is not its primary function. If it were, the USPS would have relinquished the function to the private sector long ago. Its primary political purpose is to control the flow of information by defining what is “unmailable.” During periods of war, that purpose emerges openly. For example, “un-American political doctrines” were declared unmailable during World War I. Broadly defined “subversive propaganda” received similar treatment during World War II. Enforcing those prohibitions required widespread interception, monitoring, and censorship of private correspondence. It required monopoly.

The question posed by Spooner over a century and a half ago remains unanswered: from which passage of the Constitution can Congress claim this right?

Notes

1. Dorothy Ganfield Fowler, Unmailable: Congress and the Post Office (Athens, Ga.: University of Georgia Press, 1977).
2. Fowler, pp. 21-22.

What do nineteenth-century anarchist Lysander Spooner,^[1] the O. J. legal defense team, some elements of the militia movement,^[2] the Los Angeles juries that failed to convict the Menendez brothers of murdering their parents and that acquitted the brutal assailants of Reginald Denny, and the activists who promote the idea of “fully informed juries”^[3] have in common?

They all symbolize the notion that juries can and should refuse to heed the instructions given them by the trial judge, and that jurors should instead follow their own consciences and “nullify” those instructions by doing what they personally feel is just.

Jury instructions are the applicable legal rules communicated to the jury by the trial judge. In virtually every jurisdiction, jurors take an oath at the beginning of the case that they will consider only the evidence presented and the instructions of the court. The “instructions” are, therefore, laws that society has duly enacted through either the legislative process or the common law judicial process. In either event, the laws derive legitimacy from our democratic political traditions.

As citizens, we may not agree with all the laws on the books, but in a system of representative government we are bound to follow them. It is inherent in the concept of the State that there will not be unanimity in all matters, but that the views of the majority will prevail. This “coercion” or “oppression” of the dissenting minority has long perturbed anarchist philosophers such as the aforementioned Spooner, who objected to the “social compact” rationale for the state as well as the institution of the jury.^[4] Jury-power activists sometimes cite Spooner as a proponent of “jury nullification,” but he is best known for his more fundamental objection to constitutional government.

On what basis do advocates of jury nullification attempt to justify the lawlessness that ignoring the court’s instructions entails? Advocates advance two principal explanations, neither of which is persuasive: (1) civil disobedience, or the moral right or obligation to resist enforcement of an unjust law,^[5] and (2) populist opposition to tyrannical actions by an unresponsive government.^[6] Let’s consider these explanations.

Civil Disobedience

Civil disobedience is a misnomer in the context of a seated juror refusing to follow the law. Civil disobedience, properly understood, is resistance to unjust government action as a last resort—when disobedience is the only alternative to becoming a participant in an objectionable act. This will never be the case with a seated juror. A potential juror who objected to service could refuse to report to court or serve on a jury. A person with a moral objection to enforcing a particular law (say, punishing a defendant charged with private drug use or blockading abortion clinics) could disclose that objection during voir dire and be excused from serving in the case.

But, after a juror has reported for service, been screened through voir dire, been seated and sworn to follow the law according to the instructions of the court, there is no room for “civil disobedience.” A juror reneging on his oath is an outlaw, a scofflaw. A renegade juror cheats the parties to the case out of their right to have the matter decided according to the law, on the basis of which the evidence and arguments have been presented.

Despite proponents’ fondness of quoting Henry David Thoreau on civil disobedience,^[7] a lawless juror is no more heroic than a rogue policeman violating the law or a politician accepting a bribe. If a juror (or any other member of the political community) feels that a particular law is unjust—and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust—the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

Populist Opposition

The other frequently cited justification for jury nullification—the need to rein in abusive government power—is even more specious. An honest anarchist such as Lysander Spooner would refuse to serve on a jury because he wouldn’t believe in the concept of mandatory jury service or even governmental proceedings to enforce the law. Let’s not forget that a trial, whether civil or criminal, is government action. Enforcing democratically enacted laws is one of the basic purposes of government. When a juror considers defying his oath and deciding a case based on his personal feelings rather than the court’s instructions, the alternative is not between liberty and coercion, but between coercion informed by the rule of law and coercion at the whim of 12 jurors.

And what is a jury acting outside of the law but a 12-person mob, like modern-day vigilantes? Although the jury-power activists point to historical events where juries refused to enforce the Fugitive Slave Act,^[8] there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. Moreover, there are no counterparts to the Fugitive Slave Law in a civil case. Furthermore, nullifying the law strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a jury that has rejected the law.

It disturbs me to see libertarians and conservatives—whom I generally regard as allies—embrace the jury nullification cause. The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century’s pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion.^[9] In Hayek’s words: “[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.”^[10] Thus, it is the universal, non-selective nature of law that allows us to be free.^[11] In Hayek’s view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case “that it can be said that laws and not men rule.”^[12] Jury-activist pamphleteers in front of the courthouse would do well to heed Hayek’s admonition that “few beliefs have been more destructive of the respect for the rules of law and of morals than the idea that a rule is binding only if the beneficial effect of observing it in the particular instance can be recognized.”^[13]

Yet that is exactly what advocates of jury nullification espouse—following the law only if they agree with it in a particular case. I am not unsympathetic to concerns about unjust laws and government overreaching. The solution is grassroots political activism and reforms such as fewer federal mandates and expanded use of the initiative and recall devices, not shortsighted demagoguery in the form of jury nullification. Jurors ignoring the law accomplish nothing but anarchy in a microcosm—nullifying the rule of law.

1. Lysander Spooner, An Essay on the Trial By Jury (1852).

2. “Militias Are Joining Jury-Power Activists to Fight Government,” Wall Street Journal (May 25, 1995), p. A1 (hereinafter “Militias”).

3. Ibid.

4. Lysander Spooner, No Treason: The Constitution of No Authority (1870).

5. Michael Pierone, “Requiring Citizens to Do Evil,” The Freeman (July 1993), p. 261.

6. “Militias,” p. A8; N. Stephan Kinsella, “Legislation and Law in a Free Society,” The Freeman (September 1995), pp. 561, 563.

7. Pierone, note 5, p. 262.

8. Ibid.

9. Friedrich A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), pp. 72-79.

10. Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 153.

11. Ibid., pp. 153-54.

12. Ibid., p. 153.

13. Ibid., p. 159.