Sanctuary Cities and Nullification

Sanctuary cities are but the latest in a long train of citizen nullification in America.
Sanctuary Cities and Nullification
By: George Noga – August 23, 2017
       Sanctuary cities are examples of citizens nullifying laws they deem objectionable. Our history reveals myriad examples as far back as the Salem witch trials in 1692 which ended for one reason only, i.e. jury nullification. There were 52 consecutive acquittals and/or hung juries before prosecutors quit bringing cases. Other notable instances of citizen jury nullification are fugitive slave laws, labor union strikes, prohibition, Vietnam protesters and sodomy laws. Jury nullification is traceable to English common law, Magna Carta, the American Constitution and the Bill of Rights.
       Last year an Oregon jury delivered a devastating nullification to the DOJ in the Bundy case. During the protesters’ occupation, federal agents descended on the nearby town of Burns and mounted license plate scanners on utility poles, flew drones overhead and monitored communications. Most startling was the revelation that paid government informants outnumbered defendants. After a prosecution costing taxpayers $100 million, the jury acquitted all defendants of every charge despite the evidence.
     Citizen grand juries, traceable to 12th century England, are another form of nullification. Our founders intended citizen grand juries to be a fourth government branch as a buffer between citizens and government. In the 18th and 19th centuries any citizen could bring complaints directly to a grand jury which conducted its own investigation. Only recently have prosecutors taken over the grand jury system.
      Yet another form of nullification is the longstanding theory that states have the right to nullify federal laws and acts of the federal government. This is traceable to Thomas Jefferson’s notion that individual states have a right (even a duty) to abrogate laws that are unconstitutional or usurp powers not granted to the federal government. Southern states threatened (but never actually invoked) such nullification during the pre civil war era. State nullification has oft been threatened but never implemented.
      This brings us to the present controversy about sanctuary cities, which is nothing more than another form of citizen nullification whereby states, counties or cities refuse to enforce federal law. As with other forms of nullification, this form has a lengthy provenance – back to 1798 when Kentucky and Virginia refused to enforce the Alien and Sedition Acts within their boundaries. Of course, many northern states refused to enforce federal fugitive slave laws. Moreover, sanctuary cities are not the only nullification issues active today. Several states refuse to enforce federal drug laws and have enacted contrary laws. Likewise, many states decline to enforce federal gun laws.
      The legal situation is fairly clear. The Supreme Court has ruled that the feds cannot compel state or local officials to spend money to enforce federal law. The Court also ruled that the feds may contemporaneously (but not retroactively) attach strings to money for states provided there is a rational nexus such as linking highway funds to lower speed limits. Therefore, the Trump Administration can withhold money from sanctuary cities only under future legislation that contains an appropriate nexus.
      Citizen nullification has a rich history and tradition in America with many forms and antecedents. It provides an effective tool for local resistance to federal tyranny. Remember: there are two sides to the nullification coin. A federal government with the power to force sanctuary cities to enforce federal immigration law also has the power, inter alia, to force cities to make abortions and euthanasia available on demand, to dictate transgender restrooms and to impose the entire gamut of liberal phantasms.

Our next post scheduled for Sunday contains more Montana Moments

Reviving the Citizen Grand Jury

By: George Noga – June 20, 2014
        Grand juries trace their inception back to 12th century England. King Henry had problems with the pope’s ecclesiastical courts which, in Henry’s view, failed to charge or indict to his satisfaction. King Henry therefore instituted a citizens grand jury. Fast forward to the USA. The Bill of Rights (5th Amendment) states: “No person shall be held to answer for a capital, or otherwise infamous, crime unless on the presentment or indictment of a Grand Jury.” The Bill of Rights introduces grand juries although they are never mentioned in the main body of the Constitution. Hence, grand juries are a constitutional construct in their own right. The founders intended them as a fourth branch of government that belongs  solely to the American people and serves as a buffer between the people and the government.
“Any citizen could bring a matter directly before a grand jury.”
       In the decades immediately following ratification of the Constitution, grand juries played a major role in public life. Any citizen or layman could bring a matter directly before a grand jury including complaints about the conduct of public officials. Grand juries then could (and did) conduct their own independent investigations; if they found sufficient evidence to bring charges and if the act was a crime under law, the grand jury would return an indictment. Of course, the grand jury also screened out charges which were unfounded or of malicious inspiration.
“A prosecutor can get a grand jury to indict a ham sandwich.”
       It was not until the second half of the nineteenth century that the current paradigm emerged in which prosecutors control grand juries. Today there is so much abuse of grand juries by prosecutors with an agenda that it has given rise to a now-famous bon mot linking grand juries and ham sandwiches. The origin of this aphorism can be traced to comments made by Supreme Court Justice Robert Jackson in 1940. However, many attribute it to Judge Saul Wachtler who stated: “A prosecutor can get a grand jury to indict a ham sandwich.” Once empanelled however, grand juries have independence and great power; they occasionally go off on their own – thus giving rise to the term “runaway jury“.
Movement to Return Grand Juries to Citizens
       The widespread abuse by politicians of the grand jury system has led to a growing movement to return grand juries to ordinary citizens – much as they functioned in the first half century of our republic. In fact, six states currently allow citizen (or common law) grand juries in one form or another. These function in different ways. In Oklahoma citizens can petition to request a county grand jury to convene. Montana law allows judges to call grand juries. In other states, citizen grand juries can report their findings to prosecutors or to regularly empanelled grand juries.
        Current state laws do not go near far enough for many. There is a powerful movement afoot to revive the citizen grand juries of the 19th century – not under the control of prosecutors. In recent years a  number of such self-styled citizen grand juries have been formed – including at least one in (Ocala) Florida. One case in Gallatin County, Colorado garnered much attention with over 30 law enforcement officers representing 10 agencies on hand for one proceeding. In Montana different groups are forming advisory grand juries to report findings to judges and also to publish them for the record.

       There are a number of organizations competing to revive the common law grand jury in the USA. They range from the serious and well organized to some with marginal (at best) credibility. For the time being however, citizen grand juries are limited to advisory and public relations roles. Although it is unlikely grand juries will return to their 19th century roots anytime soon, it is not hard to discern that some major changes – such as the following – may come in the years ahead.

  • The beauty of our federal system is that there are 50 states and citizen grand juries may need to catch on only in one or two states to spread like wildfire. Also there are over 3,000 counties and since most grand juries operate at the county level, it is possible significant changes could even originate at the county level.
  • The movement could inspire more and more regularly convened grand juries to become runaway juries.
  • Significant marginal changes are possible. At one time ordinary citizens were allowed to pass information directly to a sitting grand jury. Bringing back this feature could really shake up politicians prone to abuse their power.
  • It is easy to foresee rapid growth in citizen grand juries with an advisory role, i.e. they could report their findings to a regular grand jury and/or independently publish their findings – similar to the present situation in Montana.
       At bottom, the movement to resurrect citizen grand juries is a manifestation of a much broader and more significant reaction by a growing number of Americans against the size, power and arrogance of government. As such it is a welcome trend and could play a significant role in bringing about more liberty and less government in America.