A. Jury Nullification

There is some confusion as to what the precise definition of jury nullification should be. It is generally understood that nullification takes place whenever jurors refuse to apply the law to a given set of facts, but there are many different circumstances in which this might occur, and different motivations are at work in each. More precision is necessary.

By the time a law makes its way to a jury for application, it has gone through many mediating layers. Most primordial is the “intent” or “purpose” of the law that exists in the legislative body. Although these ideas—and their import—are controversial, it is common to talk of them when analyzing what statutes mean.Footnote ² Encapsulating intent and purpose is the text, but this text is also filtered by the time it reaches the jury: a judge's instructions give a new gloss. It is possible for a jury to reject intent and purpose, text, instructions, or any combination of the three.

While some commentators disagree, jury nullification only really takes place when intent and purpose, text, and instructions speak with one intelligible voice: there must be agreement amongst these sources of “law,” and it must be understandable by the jury. These requirements come from the definition of the word “nullification” more generally: to nullify something is to “render [it] of no value, use, or efficacy; to reduce to nothing, to cancel out.”Footnote ³ If the three sources of law noted above are not in alignment, then exercises of jury power that seem like nullifications may be nothing more than attempts to more truly fulfill or flesh out that law—vague or ambiguous text might be rejected out of a jury's desire to execute legislative purpose or intent, and so on. In cases like these, where the exercise of jury power is interpretive or equitable, the law is not “cancelled out” but is itself read to have a different meaning. Some commentators uncritically include these types of jury actions as instantiations of “nullification,” but this is imprecise.Footnote ⁴

Jury nullification reflects a different, more rebellious disposition—it is when a jury consciously puts itself at odds with the clear meaning of the text and the intentions and purposes behind it. The archaic definition of the verb captures this better: “To discredit, efface, or undermine.”Footnote ⁵ When the law's intended meaning and application are clear (and the sources of the law speak in agreement), a jury's refusal to give it effect is properly called nullification—it unmistakably evinces the rebellious disposition noted above.

This is possible in both civil and criminal actions, and in both convictions and acquittals. However, most people discuss the concept only in the case of criminal acquittals—this is the most interesting type, as in this instance the jury's decision is unreviewable.Footnote ⁶ “Only when the jury nullifies and acquits in a criminal trial does the jury's act of nullification have serious consequences: the judge cannot review the jury's verdict and the defendant is set free,” observes one commentator.Footnote ⁷ Thus we limit our discussion here to this: “Jury nullification, defined as a jury's ability to acquit a criminal defendant despite finding facts that leave no reasonable doubt about violation of a criminal statute.”Footnote ⁸

Within this category we find other distinctions; these mostly come from the different motivations behind the jury's action. First, a jury could choose not to apply the clearly understood law to a particular defendant, viewing either him or the circumstances of his conduct as somehow worthy of exoneration (even though the statutes provide for no such defenses). Of course, this category of motivation can also be subdivided further, given the array of reasons why a particular defendant would be sympathetic, or why a particular law ought not be strictly applied.Footnote ⁹ If this is done so as to fulfill legislative intentions, say, in the case of unintended or unforeseen consequences, then it falls into the category described above (interpretive or equitable exercises of jury power), but in many cases the refusal to apply the law to the particular defendant will be at odds with the clear meaning of the text and with the intentions and purposes that gave rise to it; this is nullification.

Nullification also occurs when the jury's motivation comes from an opposition not to the specific law as applied to the particular defendant but to the criminal justice enforcement system, either because of problems with 1) the individual case, or 2) the system more generally. In the first, a jury's nullification could function in the same way as the Exclusionary Rule of the Fourth Amendment, refusing to convict when flagrant prosecutorial or police misconduct had tainted the proceedings.Footnote ¹⁰ The second type involves the jury's critical response to systemic problems; Paul Butler's theory and the example of the “Bronx juries” illustrate this.Footnote ¹¹

Finally, and the most radical, is the type of nullification that is the subject of this article: a jury's substantive rejection of a law, absent any concerns outside that law's content.Footnote ¹² History has given us a few salient examples of this final species. Perhaps the earliest example noticed by scholars was English juries’ rejection of the “Bloody Code” during the eighteenth century: because the penalty for even minor crimes was death, prosecutions under these laws were routinely nullified.Footnote ¹³ The most popular example of substantive nullifications, though, are the Northern abolitionist juries’ nullifications of Fugitive Slave Act cases.Footnote ¹⁴ Immediately following the Civil War, this phenomenon also occurred more discretely amongst Mormon-dominated juries in Utah; within that jurisdiction, nullifications drained the Morrill Anti-Bigamy Act of any real force.Footnote ¹⁵ Finally, and more recently, the Prohibition laws of the 1920s were fiercely resisted by juries across the nation, and this pronullification sentiment meant that successful convictions were extremely hard to obtain.Footnote ¹⁶ In all these cases, it was a jury's substantive disagreement with the law itself that led to the nullification.

B. The Rule of Law

We now know what substantive jury nullification is, but there is still much to say about the “rule of law.” Obviously, legal scholars have written extensively on the rule of law, and in what follows I highlight only the most famous and salient presentations. Nearly all agree that the rule of law consists of a constellation of ideal characteristics that all legal codes should strive to attain. John Finnis writes that the rule of law is the “name commonly given to the state of affairs in which a legal system is legally in good shape.”Footnote ¹⁷ Joseph Raz helps to clarify the object of this “rule”: while it is certainly true that the plain meaning of “rule of law” suggests that it concerns itself with individual conduct, “in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and subject to it.”Footnote ¹⁸ What we are talking about, then, is some sort of desirable manner in which the creation and application of law is undertaken.Footnote ¹⁹ Lon Fuller lists these desiderata as eight: generality, publicity, clarity, consistency, feasibility, constancy, prospectivity, and congruence.Footnote ²⁰ Matthew Kramer helpfully fleshes these out:

1. 1. [Law] operates through general norms;

2. 2. its norms are promulgated to the people whose conduct is to be authoritatively assessed by reference to them;

3. 3. its norms are prospective rather than retrospective;

4. 4. the authoritative formulation of its norms are understandable (at least by people with juristic expertise) rather than opaquely unintelligible;

5. 5. its norms are logically consistent with one another, and the obligations imposed by those norms can be jointly fulfilled;

6. 6. its norms do not require things that are beyond the capabilities of the people who are subject to the norms;

7. 7. the content of its norms, instead of being transformed sweepingly and very frequently, remain mostly unchanged for periods of time long enough to induce familiarity; and

8. 8. its norms are generally effectuated in accordance with what they prescribe, so that the formulations of the norms (the laws on the books) are congruent with the ways in which they are implemented (the laws in practice).Footnote ²¹

With some additions and subtractions, most major theorists agree.Footnote ²² The whole point of the desiderata, it should be noted, is to maximize law's capability “of guiding the behaviour of its subjects,”Footnote ²³ giving some settled framework of expectations within which human freedom can be maximized.Footnote ²⁴ As said above, though, it is important to note that the rule of law is not the sole consideration in assessing the actions of a legal system; in some cases its value may be outweighed by other ideals.Footnote ²⁵

While many of the elements of the rule of law are relevant to the question of jury nullification, throughout this article my focus is the outcome-consistency aspect of that concept. This is really an amalgamation of Fuller's first and eighth desiderata: generality and congruence. Generality, because we expect like cases to have the same outcomes. Congruence, because we expect this consistency of outcomes to be determined by the authoritative norm and not some other source. “[T]hose people who have authority to make, administer, and apply the rules in an official capacity,” Finnis states, “do actually administer the law consistently and in accordance with its tenor.”Footnote ²⁶ Or as Kramer writes, the “laws on the books” must align with the “laws in practice,” and if this happens, identical cases will have identical results.Footnote ²⁷

A. Darryl Brown

The most systematic attempt is made by Darryl Brown. Brown begins by contrasting older formalist and textualist understandings of the rule of law with newer theories. The former erred in their assumption that the sources of law are purely positive and devoid of moral considerations.Footnote ²⁸ By contrast, contemporary legal theory accounts for law's “inextricable interaction with its larger social context.”Footnote ²⁹ Brown highlights a few individual theorists.

Dworkin's critique of Hartian positivism “broaden[s] the sources to which legal decisionmakers . . . should turn” and includes the “general principles . . . implicit in prior decisions.”Footnote ³⁰ Importantly, this allows for an importation of “principles of personal and political morality,”Footnote ³¹ and the necessary “integrity” of the law means that in the case of conflict, these principles will trump a positive law.Footnote ³² Brown also references the work of Margaret Radin, who argues that the rule of law is a “pragmatic, normative activity” and that “strong social agreement” determines a rule's relevance to a particular case.Footnote ³³ Also discussed are Randy Barnett and William Eskridge, all to support the idea that public morality, and not just positive text, is a foundation of the rule of law.Footnote ³⁴

Brown applies his readingFootnote ³⁵ of these thinkers to the case of substantive nullification and works toward a reconciliation. He begins by framing the question as one of nullifying an “unjust law,” what he calls a “response to norm violation.”Footnote ³⁶ His first answer is that “unjust” statutes are (or will often be) products of flawed legislative processes or governmental structure: if a positive law comes from “undemocratic” sources, it can and should be nullified.Footnote ³⁷ After this, Brown appeals to Dworkin—an “unjust” statute fails to have integrity, and by diverging from the deeper “personal and political morality” of the community it loses its obligatory status.Footnote ³⁸ Radin and Eskridge would agree, Brown thinks, because “the written statute . . . contravenes widely held social conventions and norms.”Footnote ³⁹ Overall, the idea is that an extratextual source—the morality of the community—informs and can sometimes trump the actual text, but that this source is ultimately more informative as to legal status than the latter.

B. Nancy Marder

Nancy Marder gives another in-depth treatment of the topic. She mentions the familiar historical “unjust law” examples discussed aboveFootnote ⁴⁰ but also draws attention to contemporary cases, such as “three strikes” laws and abortion-related nullifications.Footnote ⁴¹ Marder takes a “process view” of nullification and its place in the rule of law; in the context of “not applying a bad law,” she sees nullification as an appropriate “feedback” mechanism that “informs [other branches] when they have overstepped their bounds.”Footnote ⁴² Beyond this, substantive rejections have a salutary “moderating effect,” and ensure that the law “fits more closely with local views.”Footnote ⁴³ Finally, she argues that the system presupposes these nullifications, as the jury has always been seen (and valued) as the “conscience of the community.”Footnote ⁴⁴ It would also be particularly perverse, she thinks, to force jurors to serve, but to then demand that they act against their own consciences.Footnote ⁴⁵ When discussing traditional formalist objections to substantive nullifications, Marder notes that judicial and prosecutorial discretion already creates a great deal of “variation” in the substantive application of a law and that the effects of a single nullification are very limited.Footnote ⁴⁶ Even when a community's moral stance on a given law is unsettled—as with abortion—Marder still thinks that nullification is valuable as a “vehicle for expression” for a particular viewpoint.Footnote ⁴⁷

C. Jenny Carroll

A very recent article by Jenny Carroll echoes these themes. She draws heavily from Brown's work and cites the same modern rule-of-law theorists that enable Brown to achieve his own accommodation, arguing that when the law “confounds the citizen's notions of morality . . . [the citizen] will write a new meaning in his resistance.”Footnote ⁴⁸ The content of this moral meaning, of course, comes from the “community [law] commands” and “the citizen's own experience.”Footnote ⁴⁹ Thus, again we find the idea that the rule of law can and should allow for the trumping of positive text by community morality:

Carroll also hints at the “feedback” and “expression” justifications noted by Marder.Footnote ⁵¹

D. Summary

All of these recent theorists endeavor to accommodate jury nullification within the rule of law, and they do so by employing a version of the latter concept in which community morality is essentially determinative. For all, a direct conflict between positive law and settled community morality ends with the latter as victor. The rule of law surely encompasses the “legality” virtues that promulgated text provides, but for these theorists, this is less important than the morality that first inspired the text and sustains its legitimacy. They essentially expand what “law” is, construing a community morality's subversion of the text as an internal revision of law by law, and not a defeat of law altogether. Armed with such a conception of the rule of law, nullification of “unjust” laws seems to be no threat.

A. Nonsubstantive, Process View of the Rule of Law

The problem is that these cases have been analyzed with the moral qualities preassigned: an “unjust” law and a “just” community morality. Instead, the phenomenon of nullification as substantive rejection of law must itself be assessed without regard for the substance of the law at issue.

This is true because the rule of law is itself nonsubstantive; it is a vehicle for producing outcomes in a certain manner, but the outcomes themselves need not be defined. The rule of law really embodies process values, not substantive values. One look at its precepts makes this clear: a general, public, clear, consistent, feasible, constant, prospective, and congruent system of wickedness is entirely conceivable. As Raz notes, “[T]his conception of the rule of law is a formal one. It says nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality, or justice.”Footnote ⁵³ Rawls, too, concludes that the rule of law is “compatible with injustice,”Footnote ⁵⁴ noting that the precepts “impose rather weak constraints on the basic structure, but ones that are not by any means negligible.”Footnote ⁵⁵ The rule of law, then, is a constellation of procedural values—a set of means that can be used to serve both just and unjust ends.

This has two implications for our discussion. First, it means that any analysis of the rule of law's compatibility with nullification cannot depend upon the substantive quality of the law or the jury action at issue. The justice or injustice of a law or a nullifying jury cannot be determinative—it is the effect of the nullification on the eight procedural desiderata that matters, not its effect on justice. Second, it means that we must conduct the rule of law analysis in each and every possible type of substantive nullification, regardless of the substance. We cannot limit our frame of reference to only one case, as the rule of law will be affected in all of them. Because the rule of law is nonsubstantive, the scope of inquiry must be widened to encompass all versions of the phenomenon being discussed, and not just one species of it.

Some accommodationists commit an error with respect to the first conclusion—they mistakenly allow for the moral qualities of the law to be determinative in their rule-of-law analysis. This becomes clear when their responses to what I call the “inverse scenario” are juxtaposed alongside their approbation of the paradigmatic case. That is, they express disapproval when a just law is nullified by an unjust jury, but approval when an unjust law is nullified by a just jury. How can they distinguish between the two, though, without appealing to the moral qualities of the law—something that we agree is extraneous?

Brown discusses the “inverse scenario” in the context of Southern juries’ refusal to convict white defendants accused of violence against blacks, but his treatment is problematic.Footnote ⁵⁶ First, he attempts to avoid the question posed above by framing the Southern juries’ actions as mere biased applications and not substantive rejections, but this provides us with no real answers.Footnote ⁵⁷ When at last confronted by the problem, Brown's answer is frank but deeply unsatisfying:

Brown admits that the quality of the “morality” does all of the delineating work. As we say above, though, a nullification's moral quality has no bearing on its comportment with the rule of law—the rule of law “says . . . nothing about justice.”Footnote ⁵⁹

Other accommodationists do not attempt to distinguish between the unjust-law nullification and the “inverse scenario”; instead, they seem to take the more consistent (but more intuitively problematic) approach of accepting the inverse scenario as compatible with the rule of law. They make an error with respect to the second conclusion from above (that all possibilities must be analyzed). Marder, for example, concludes that all substantive nullifications serve as a valuable “vehicle for expression” for a particular viewpoint.Footnote ⁶⁰ But what value is advanced by clearly immoral nullifications? Why, say, should racism be afforded any vehicle by which it can be expressed? Her theory depends upon an acceptance of all viewpoints as having at least some value, but only the most committed moral relativist would go this far. Carroll also raises the possibility of the inverse scenario but fails to appreciate that her observation significantly undermines her larger thesis: “But we are also a dangerous force when our own concept of justice is grounded in prejudice or ‘cruel, cruel, ignorance.’”Footnote ⁶¹ It is precisely this ability of individual communities (and juries) to define for themselves what “justice” is that threatens most seriously the rule of law.

While it may seem as though these theorists are consistent in their approval of all substantive nullifications regardless of moral quality, their treatment of the inverse scenario is really so light that it constitutes an evasion. The vast majority of their discussions involve the palatable case of the unjust-law nullification, with the inverse scenario addressed in only one or two sentences. Because, like Brown, they forget that the rule of law is a procedural value and not a substantive one, they essentially limit their arguments to one substantive possibility—the unjust law and the just community morality. Recall, though, that the rule of law's procedural character means that it can be advanced or threatened in any substantive setting. Marder and Carroll err by failing to account fully for all possible permutations of law quality and jury quality. The accommodationists narrow the scope of the observed phenomenon, cherry-picking one unobjectionable species from what is a larger and more differentiated genus.

This is probably because no one could really believe that an unjust jury nullifying a just law would be compatible with the rule of law; none of the accommodationists’ theories make sense once the inverse scenario is introduced. Their arguments rest upon an implicit assumption that the community morality being stifled by the positive law is itself more salubrious. If it is granted that the community is wicked, then the liberation of that morality seems far less desirable, and appeals to Dworkinian “principle” and “integrity” become inapposite. By incorporating this assumption, though these theorists import considerations that are extraneous to the rule of law. These considerations help to narrow the scope of the inquiry to only the most palatable case, but do so mistakenly.

B. Bifurcated Morality

The accommodationists make a second major mistake: they take too simplistic a view of “community” morality. A bifurcated understanding is necessary, because the morality of the area bound by the law need not always align with that of the area from which the jury panel will be selected, and, because the morality of the jury is determinative, the possibility of nonalignment has consequences for the rule of law.

With respect to nullification, one must speak of the “community morality” in two senses and not only one: the conventional morality of the jurisdiction that has input over and is affected by the legislation (jurisdictional morality), and the conventional morality of the area from which a venire—and ultimately a jury panel—will be selected (vicinage morality). These two communities of morality need not always be in agreement. Interests, values, and opinions can diverge between people and groups, often sharply and often geographically. One need look no further than recent electoral maps, where “red” and “blue” counties generally come in large, geographically based clusters.Footnote ⁶² There are many examples of this geographic moral divergence, where different locales take opposing views on the acceptability of conduct.Footnote ⁶³ The accommodationists err in their undifferentiated account of “community” morality; their theory relies upon a somewhat naïve assumption of universal agreement that does not bear out in our pluralistic society.

More seriously, this incorrect assumption leads them to miss out on the highly problematic implications that divergent moralities can have for the rule of law. Localistic nullifications can arise when a vicinage morality diverges sharply from that of the larger jurisdiction (aberrant localism) and also when it takes an entrenched position on what is still an unsettled question at the jurisdictional level (quasi-representative localism). Localistic nullifications in these cases threaten the rule of law, and the accommodationists have only weak replies to these objections.

In his discussion of race-based Southern nullifications, Brown notes that these scenarios “seem to occur largely when local norms and sentiments strongly conflict with statutes and principles reflecting the consensus of the larger, national community.”Footnote ⁶⁴ After raising this possibility of localistic divergence, though, and concluding that these nullifications violate the rule of law, he refrains from abstracting any lesson from it beyond the specific context of racism.Footnote ⁶⁵ Surely there are other pernicious types of localism besides racism, many of which are equally threatening to rule-of-law values. Moreover, it is not clear that the Southern United States example is a good example of “localism.” As Brown himself admits, this was an extraordinary case where a very large percentage of the population was living somewhat outside of the rule of law.Footnote ⁶⁶ Localistic nullifications can arise in more ordinary circumstances, but Brown's theory does not address these.

Marder seems to equally miss out on the problematic implications of localism. She says that “this form of nullification may result in national or state laws being tailored according to more regional or local views,” but sees no problem with that.Footnote ⁶⁷ In fact, she calls it an “advantage,” and understands this to be licensed by the Constitutional demand that juries be locally composed.Footnote ⁶⁸ First, it is wrong to conclude that nullification will “tailor” the implementation of a law; as discussed in the beginning, nullification totally rejects or cancels that law. Beyond this, that the Constitution values juries’ local composition does not mean that it values local opinion with respect to the substantive content of the law. Again, we are thrown back to the original question: What is the role of the “jury,” decider of law or of fact, as written in the Seventh Amendment? With what theory of Constitutional interpretation would we decide this question—originalism, and so on? Marder's invocation of the Constitution introduces a host of questions that go unanswered, and it may even work against her theory.Footnote ⁶⁹

Carroll, too, seems unaware of the problems of localism. “That the citizen juror's sense of justice may be inconsistent with or in direct conflict with a larger national sense does not undermine its value or displace it as a possible source of law,”Footnote ⁷⁰ she argues. It is unclear how she can support this. Perhaps she believes that the “rule of law” can exist at a local level and need not be uniform across the legislative jurisdiction, but this seems highly improbable.Footnote ⁷¹ How can a “rule of law” admit of private senses of justice that “direct[ly] conflict” with the national morality that has motivated the promulgation of the text? Again, Carroll has committed the same error that Brown candidly admits to—she limits her thinking to a palatable example in which she agrees with the outcome, and does not consider less salutary possibilities. If taken at face value, though, her proposition is really “the passage that ate the rule of law.”Footnote ⁷² Surely we would not allow private “sense[s] of justice” to trump universal rules if these private senses directly undermined the most basic presuppositions of liberal society.Footnote ⁷³

If we accept the possibility of a bifurcated and divergent local and jurisdictional morality, then the determinative, unreviewable character of local views (through the jury) means that nullification can threaten the rule of law through localistic nullifications.

A. The Case of the Broken Compromise

No nullification

We can call this possibility the case of the broken compromise. When an issue at the jurisdictional level is very contentious, law—as emanation of the political process—settles that issue in some sort of a compromise, with the disagreeing sides agreeing to abide by the outcome of that give-and-take deliberation (or in any event they are forced to abide by it).Footnote ⁷⁴ If a vicinage morality happens to be settled on the issue, though, jury nullification breaks that jurisdictional compromise.

One could think of almost any hot-button issue. Americans are sharply divided about the legal status of homosexuality, for example. Questions of marriage, adoption, and criminal sentencing (for hate crimes) fail to garner a substantial majority of opinion for a given position.Footnote ⁷⁵ Again, though, certain propositions win out through the political process and become law. Hate crime laws are perhaps the most successful (and most relevant to the nullification context). Even though citizens may disagree about the morality of homosexuality or about the distinctly different moral status of a “hate crime,” once the law is passed all must accept the legislative outcome.

Law has settled these issues and prohibits us from acting according to our private judgments about the permissibility of the conduct, despite our deeply felt and widespread disagreement. Larry Alexander and Emily Sherwin describe how “disagreements about moral rights and duties can produce considerable strife and turmoil, even among people of goodwill.”Footnote ⁷⁶ Even when basic norms are agreed upon at an abstract level, their detailed implementation, as well as the standards that apply in determining factual questions, can produce sharp disagreement.Footnote ⁷⁷ Only through authority (normally law) can these problems of coordination and agreement be settled—law chooses a common path, and all are obliged to follow.Footnote ⁷⁸ This is especially necessary in a pluralistic nation.

This settlement function takes place at the jurisdictional level, and it is obviously threatened by the broken compromise nullifications of a vicinage morality: the congruence between promulgated law and actual outcomes is destroyed. While nullification in these contexts will come from at least quasi-representative localism (a substantial portion of the citizenry holds the view of the settled vicinage morality), it still harms the rule of law if the larger jurisdictional morality is unsettled and divided. If nullification is accepted here, homophobic vicinage pools could acquit hate crime counts, and strongly progay communities might refuse to enforce whatever criminal sanctions might be leveled against willful violators of marriage or adoption laws (say, contempt charges). All this ruins the settlement function of the rule of law—settlement and compromise demand congruence between promulgation and application.

B. The Case of the Lone Believers

Acceptable or congruent nullification; “Paradigmatic Case.”

When positive law diverges from the larger jurisdictional morality, there are two possibilities: one acceptable (for the rule of law), and one problematic. If the vicinage morality itself aligns with the jurisdictional morality, this might be nothing more than the “just” jury nullifying the “unjust” law. This situation is what the commentators exclusively focus on in their attempts to reconcile nullification with the rule of law. The common examples mentioned above are all sufficient to describe it: the universal rejection of the Prohibition laws by juries and the nullifications of the “Bloody Code” in England.Footnote ⁷⁹ Of course, another manifestation might be the “inverse scenario”—a wicked jury nullifying a just law (say, the Southern racist nullifications).

For present purposes, we can agree that these nullifications do not threaten the rule of law—instead, the accommodationists are correct here (although they ought to have incorporated the inverse scenario, which is also compatible with it).Footnote ⁸⁰ When the positive law is completely at odds with a settled jurisdictional morality, the system is not working as it should. In a democracy or republic, this could be the result of a catastrophic failure of the representative institutions, with a greedy or iniquitous minority determining outcomes based on narrow self-interest. Alternatively (as with the inverse scenario), it may be that an enlightened and active political elite has managed to change the law so as to effect the common good in the face of popular ignorance or prejudice. In either case, the widespread moral consensus (for good or bad) will result in consistent nullifications of the law and therefore congruence. This point has already been made, though,(and made persuasively) by the accommodationists. Their error is not in the making of this conclusion, but in giving it too much significance for nullification generally.

Before moving on, it is worth noting that there may be some cases that undermine the rule of law even when VM and JM align in nullifying a divergent PL. This could happen when the positive law is the product of some sort of countermajoritarian institutional arrangement. Madisonian checks and balances, of course, allow for once-popular laws to survive even after they have lost their public support. This could happen for other reasons as well.Footnote ⁸¹ In this case, a law that is set up for the protection of minority rights would survive only because JM cannot muster enough backing to undo the PL. This difficulty would be part of the point, and substantive nullifications here would undo the countermajoritarian balance that had been struck. While the democratic paradigm suggests otherwise, the American experience has ever affirmed that it is often the case that majoritarian sentiments and morality should not directly correlate with political outcomes. The same nuance should be remembered when giving our approval to jury nullifications. These cases might promise consistent outcomes but they would still violate other rule of law precepts, in that these consistent outcomes are inconsistent with the larger countermajoritarian institutional scheme at work. The absence of congruence here takes place with respect to a higher frame of reference—the structural principles of the Constitution.

Now we can turn to the second possibility when there is a divergence between positive law and jurisdictional morality: when the vicinage morality nevertheless aligns with positive law. We can call this the case of the lone believers. Here, a particular geographic community finds itself at odds with the larger national opinion, but the locality happens to have the law's text on its side. We will not dwell on how this might come about; the idea of a powerful minority interest group is probably sufficient to describe the cause, but it might also be that this locality is particularly wise or enlightened in the context of an unjust national community. In this case, the problem does not come from nullification—these local juries will agree with the law, after all. Instead, the rule of law is undermined by the context of this obedience. Because nearly all other juries in the jurisdiction will vote to nullify, the lone believers’ obedience takes place amongst a backdrop of overwhelming disobedience. Thus, in this rare case, faithfulness to the text actually creates more uncertainty and inconsistency in legal outcomes.

It is not hard to think of examples. Surely there were certain juries in Evangelical counties—perhaps those who initially led the Prohibition movement—that voted to convict in alcohol cases. Even today there are some “dry” counties in the United States (almost all made so by public referendum), and in these bastions of temperance there would be little resistance to Prohibition-type convictions, despite widespread national opposition to such a view.Footnote ⁸² There, we could impanel a jury that would convict, but not so in Manhattan or Los Angeles. Think also of the colonial experience: small and isolated pockets of obedience in the central capitals were lost in a larger sea in which the colonizer's laws were inefficacious. We could also take note of contemporary drug laws, especially marijuana. In certain western jurisdictions, a substantial majority of the population might disagree with the purportedly moralistic ban on the drug, leading to widespread nullification. Isolated, holdout communities of staunch conservatives, though, would function as the lone believers. We need not make assessments as to who is wrong or right in their judgments—the locality or the nation—because what matters for the rule of law is not justice but consistency. Random acts of enforcement in the context of nonenforcement (no matter what is being enforced) threaten the rule of law.

C. The Case of the Aberrant Locality

No nullification, no rule of law problem. (This is how it is supposed to work!)

The final scenario again presents two possibilities, one threatening the rule of law and the other compatible with it. In the first, everyone agrees on the issue, and the positive law reflects that agreement. This is how the rule of law is supposed to work: widely held moral positions are codified in the text and are applied without reservation. No one seriously disagrees with the prohibition against premeditated murder, for example, and both legislatures and juries are willing to enact and apply this law (in the abstract).

While total alignment presents the most unobjectionable scenario, the other possibility is perhaps most worrisome for the rule of law. This is when a local morality diverges from the larger, national morality, as well as the text that codifies the latter. The cases of the broken compromise and the lone believers are bad enough, but with the aberrant locality the otherwise universally agreed-upon norm (and text) is supplanted and rejected. Just as the rule of law exists to create settlement and compromise in the case of contentiousness, so, too, does it exist to suppress antisocial outliers—it makes obligatory certain widely held mores.Footnote ⁸³ In less extreme cases, it suppresses those small minorities that have decisively lost in the political process. What would that process mean, after all, if even the losers could have their cake and eat it too? Again, it may even be that the aberrance of the locality is something that we view as objectively good, with the majority taking the mistaken position, but the congruence of the legal system (and therefore the nullification's comportment with the rule of law) depends not on taking the right position but on everyone accepting the same position.

We could begin with a rather extreme hypothetical. Imagine a cult, the core tenets of which demand that its acolytes regularly perform certain conduct that is otherwise universally regarded as evil (say, sacrificing newborns). This cult garners a larger and larger following, and it decides that it would like to incorporate a new municipality in an empty tract of land in an American state.Footnote ⁸⁴ Murder, of course, is prohibited by the state, and one presumes that the state's population (and legislature) is fully supportive of the laws against homicide. Still, it will be impossible to impanel a jury in the cult city that will convict one of their own of murdering a child. Can anyone seriously argue that these nullifications fit within the rule of law in that state?

Because it will be easy for some to dismiss this hypothetical as fanciful, a less extreme example should also be mentioned. We could recall the experience of the Morrill Anti-Bigamy Act after the Civil War. Despite widespread moral support for the prohibition of polygamy at the national level and positive law effecting that sentiment, Utah's extremely high population of Mormons led to near-uniform nullification of any prosecutions in that state.Footnote ⁸⁵ We might still find examples of this type of aberrant localism in small pockets of Fundamentalist Latter Day Saints churches.Footnote ⁸⁶ Can these flagrant violations of the larger community's norm (and its implementing legal text) exist within the rule of law? Congruence seems manifestly absent here.

Substantive nullifications allow for aberrant localism to undermine what is otherwise the clear nomos of the community, both textually and extratextually, and are thus a great threat to the rule of law. They are nothing more than blatant refusals to submit to the law, and the niceties of a pluralistic or interpretive legal theory can do nothing to change that. Accommodationist commentators do not account for this problematic possibility, and by limiting their discussion to more palatable examples, they ignore that the rule of law also has a suppression function.Footnote ⁸⁷ Even if the nomos has settled on a position that is objectively unjust, courageous or heroic localism in this context is still aberrant—it still destroys congruence.