Reconstruction and the transformation of jury nullification

University of Chicago Law Review

Volumn 78, Issue 4, 2012, Pages 1133-1201

  Bressler, Jonathan ^a  

^a Honorable Stephen Breyer   (United States)

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EID: 84860255583     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (381)

1. See Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 Ind L J 397, 398 (2009).
2. Sparf, 156 US at 102.
3. See Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 6 (Carolina 1998).
4. Although nullification is conventionally defined as a "jury's knowing and deliberate rejection of the evidence or refusal to apply the law," Black's Law Dictionary 875 (West 9th ed 2009)
5. the concept has been expanded to include single holdout jurors who "choose not to follow the law as it is given to them by the judge." Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw U L Rev 877, 881-83 (1999).
6. See Jeffrey L. Fisher, Categorical Requirements in Constitutional Criminal Procedure, 94 Georgetown L J 1493, 1516 (2006) (noting that originalism has "figured prominently" in recent constitutional criminal procedure cases);
7. Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Georgetown L J 183, 185 (2005) ("Originalism, in short, is a powerful force in criminal procedure.").
8. For examples of originalism as applied to testimony, see Giles v California, 554 US 353, 362-66, 377 (2008)
9. Crawford v Washington, 541 US 36, 42-51 (2004) (drawing on Founding-era cases to exclude previous statements that defendant's wife gave to police after she invoked the marital right to not testify at trial). For verdicts
10. see, for example, Jones v United States, 526 US 227, 244-48 (1999)
11. United States v Gaudin, 515 US 506, 511-15 (1995).
12. For sentencing, see, for example, Oregon v Ice, 555 US 160, 167-68 (2009)
13. Apprendi v New Jersey, 530 US 466, 476-85 (2000).
14. See Danforth v Minnesota, 552 US 264, 271 (2008) ("[Crawford] 'turn[ed] to the historical background of the [Confrontation] Clause to understand its meaning,' and relied primarily on legal developments that had occurred prior to the adoption of the Sixth Amendment to derive the correct interpretation.")
15. (citation omitted), quoting Crawford, 541 US at 42-51.
16. See also Blakely v Washington, 542 US 296, 306 (2004) (noting that without the sentencing restrictions required by Apprendi the jury would not exercise the control that the Framers intended").
17. Recent criminal procedure opinions for the Court written by Justices Ruth Bader Ginsburg, Antonin Scalia, John Paul Stevens, and David Souter have relied upon originalist analysis. See Ice, 555 US at 168-69 (2009) (Ginsburg)
18. Giles, 554 US at 2682-86 (Scalia)
19. Apprendi, 530 US at 477-83 (Stevens)
20. Jones, 526 US at 244-48 (Souter).
21. See, for example, James Forman Jr, Juries and Race in the Nineteenth Century, 113 Yale L J 895, 926-30 (2004)
22. Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 Cornell L Rev 203, 238-41 (1995).
23. see Federal Judicial Center, Benchbook for U.S. District Court Judges § 2.06(8)(d) at 93 (4th ed rev 2000)
24. juror oaths, see United States v Thomas, 116 F3d 606, 614 (2d Cir 1997)
25. jury instructions, see Eleventh Circuit Pattern Jury Instructions: Criminal § 2.1 (2010)
26. their power to remove nullifying jurors, see United States v Abbell, 271 F3d 1286, 1302-04 (11th Cir 2001) (per curiam).
27. See, for example, Crawford v Washington, 541 US 36, 67-68 (2004)
28. overruling Ohio v Roberts, 448 US 56, 66 (1980).
29. For example, one could argue that the accepted history that the disallowance was judicially driven conflicts with the Court's finding that the Framers did not leave the "definition of the scope of jury power up to judges' intuitive sense" because "they were unwilling to trust government to mark out the role of the jury." See Blakely v Washington, 542 US 296, 308 (2004).
30. See also Crawford, 541 US at 67-68.
31. See Jones v United States, 526 US 227, 246-48 (1999).
32. Neder v United States, 527 US 1, 30, 32 (1999).
33. See Nancy J. King, Silencing Nullification Advocacy inside the Jury Room and outside the Courtroom, 65 U Chi L Rev 433, 434 (1998)
34. Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America, 89 J Crim L & Criminol 111, 121 & n 44 (1998) (discussing the "powerful" originalist argumentation for nullification).
35. Raoul Berger, Justice Samuel Chase v. Thomas Jefferson: A Response to Stephen Presser, 1990 BYU L Rev 873, 889-90.
36. See, for example, Chris Kemmitt, Function over Form: Reviving the Criminal Jury's Historical Role as a Sentencing Body, 40 U Mich J L Ref 93, 106-07 & n 83 (2006) (criticizing Sparf)
37. Andrew J. Parmenter, Note, Nullifying the Jury: "The Judicial Oligarchy" Declares War on Jury Nullification, 46 Washburn L J 379, 417-19 (2007) (arguing that nullification originally was "part of our constitutional system").
38. Compare Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 157-58 (Oxford 2004) (stating that Founding-era juries had the right to decide questions of law)
39. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 98-103 (Yale 1998) (same)
40. Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 30-31, 37, 63-64, 75-76 (Basic Books 1994) (same)
41. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 40-41 (Kansas 1985) (same)
42. Matthew P. Harrington, The Law-Finding Function of the American Jury, 1999 Wis L Rev 377, 396 (same)
43. Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 Harv L Rev 582, 584-85 (1939) (same) with Krauss, 89 J Crim L & Criminol at 116-22 (cited in note 17) (arguing that it is not clear to what extent Founding-era juries had the right to determine questions of law).
44. See, for example, Akhil Reed Amar, America's Constitution: A Biography 581 n 73 (Random House 2005) (listing leading Americans who accepted the right of nullification).
45. See, for example, Kramer, The People Themselves at 163 (cited in note 20).
46. See also Conrad, Jury Nullification at 46-47 (cited in note 4)
47. Albert W. Alschuler and Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U Chi L Rev 867, 873-74 (1994).
48. See, for example, Howe, 52 Harv L Rev at 590-605 (cited in note 20)
49. Supreme Court justices regularly instructed jurors that they were the judges of law. See, for example, Georgia v Brailsford, 3 US (3 Dall) 1, 4 (1794) (Jay) (charging the jury that it had "a right to take upon yourselves to judge of both [law and fact], and to determine the law as well as the fact in controversy")
50. Van Horne's Lessee v Dorrance, 2 US (2 Dall) 304, 307 (CC D Pa 1795) (Paterson) (charging the jury that to decide "the law as well as the facts").
51. See, for example, Berger, 1990 BYU L Rev at 889 (cited in note 18) ("It borders on the inconceivable to attribute to the Founders an intention to leave their 'noble palladium' at the mercy of judges who, according to Justice James Wilson, they had regarded with 'aversion and distrust.'")
52. quoting James Wilson, The Subject Continued-Of Juries, in Robert McCloskey, ed, 2
53. The Works of James Wilson 503, 540 (Harvard 1967).
54. See Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), in Julian P. Boyd, ed, 15 The Papers of Thomas Jefferson 282, 283 (Princeton 1958).
55. See, for example, Conrad, Jury Nullification at v (cited in note 4) (dedicating the book to defense attorneys); King, 65 U Chi L Rev at 434 (cited in note 17) (discussing the growth of the pronullification Fully Informed Jury Association).
56. Brief of Amici Curiae States of New Mexico, et al, on Behalf of Petitioner, Kansas v Ventris, No 07-1356, *17 (US filed Nov 24, 2008) (available on Westlaw at 2008 WL 5026648) (accusing the Kansas Supreme Court of ignoring the United States Supreme Court's recent emphasis on preserving Sixth Amendment protections). Twenty-five states signed the brief.
57. United States v Pabon-Cruz, 391 F3d 86, 90-91 (2d Cir 2004).
58. citing Shannon v United States, 512 US 573, 587-88 (1994).
59. See Donald M. Middlebrooks, Reviving Thomas Jefferson's Jury: Sparf and Hansen v. United States Reconsidered, 46 Am J Legal Hist 353, 353-55 (2004).
60. See Jack B. Weinstein, The Many Dimensions of Jury Nullification, 81 Judicature 168, 170 (1998) (calling nullification "the stuff . . . of our somewhat romantic democratic tradition")
61. Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am Crim L Rev 239, 240, 244 (1993) (arguing that "[w]hen juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors").
62. United States v Polizzi, 549 F Supp 2d 308, 404, 449-50 (EDNY 2008)
63. United States v Polouizzi, 564 F3d 142 (2d Cir 2009).
64. In Apprendi and its progeny-Blakely v Washington, 542 US 296 (2004)
65. United States v Booker, 543 US 220 (2005)-the Supreme Court distinguished between which facts are elements of an offense that must be found by the jury and which are sentencing factors that may be found by the judge. The Court clarified which facts are in each category by looking at the division of labor between juries and judges at the Founding; those facts that Founding-era juries would have found were within the scope of the Sixth Amendment were therefore elements of the offense for contemporary purposes.
66. See also Sanjay Chhablani, Disentangling the Sixth Amendment, 11 U Pa J Const L 487, 512 (2009). Judge Weinstein reasoned that if nullification was within the jury's province at the Founding, it too would be ingrained in the Sixth Amendment.
67. Polizzi, 549 F Supp 2d at 421.
68. See Sparf, 156 US at 113 (Gray dissenting) (arguing that the judge's instruction unconstitutionally "denied [the jury the] right to decide the law").
69. Polizzi, 549 F Supp 2d at 421.
70. Polouizzi, 564 F3d at 160.
71. Howe, 52 Harv L Rev at 615-16 (cited in note 20).
72. Harrington, 1999 Wis L Rev at 380 (cited in note 20).
73. Articles of Impeachment Art I, § 3, in Report of the Trial of the Hon. Samuel Chase App 9 (Butler and Keating 1805).
74. Although scholars agree that the disallowance of nullification was a nineteenth-century judge-led process, they dispute when the jury's role was confined to fact finding, with some dating it to as early as 1810 and others to as late as the end of the century. See, for example, Kramer, The People Themselves at 164 (cited in note 20) (dating the disallowance to the 1820s and 1830s)
75. McDonald, Novus Ordo Seclorum at 290 (cited in note 20) (dating it to a generation after the adoption of the Constitution"); Alschuler and Deiss, 61 U Chi L Rev at 906-07 (cited in note 22) (dating it to "the second half of the century")
76. Harrington, 1999 Wis L Rev at 432 (cited in note 20) (dating it to "the end of the nineteenth century").
77. See Morton J. Horwitz, The Transformation of American Law, 1780-1860 141-44 (Harvard 1977).
78. See, for example, An Act Concerning Crimes and Punishment, 1821 Conn Pub Acts title 22, § 112 (providing that in criminal cases the court was merely "to state [its] opinion to the jury, upon all questions of law, arising in the trial . . . and to submit to their consideration both the law and the facts"), superseded by An Act Concerning the Trial of Criminal Cases and the Procedure Therein, 1921 Conn Pub Acts ch 267, codified at Conn Gen Stat § 54-89
79. An Act Relative to Criminal Jurisprudence § 176, 1827 Ill Laws 124, 162 (providing that "juries in all [criminal] cases shall be judges of the law and fact"), overruled as unconstitutional by People v Bruner, 175 NE 400, 406 (Ill 1931).
80. See Howe, 52 Harv L Rev at 589 (cited in note 20).
81. See United States v Wilson, 28 F Cases 699, 708 (CC ED Pa 1830) ("[Y]ou will distinctly understand that you are the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court.").
82. See United States v Shive, 27 F Cases 1065, 1066-67 (CC ED Pa 1832).
83. United States v Battiste, 24 F Cases 1042, 1043 (CC D Mass 1835).
84. See Howe, 52 Harv L Rev at 589-90 (cited in note 20).
85. See Commonwealth v Porter, 51 Mass (10 Metcalf) 263, 285-86 (1845).
86. See Sparf, 156 US at 71-86.
87. See Harrington, 1999 Wis L Rev at 380, 405 (cited in note 20).
88. See Alschuler and Deiss, 61 U Chi L Rev at 916-17 (cited in note 22)
89. Harrington, 1999 Wis L Rev at 380, 436 (cited in note 20).
90. See Harrington, 1999 Wis L Rev at 423, 427, 438 (cited in note 20)
91. Alschuler and Deiss, 61 U Chi L Rev at 917 (cited in note 22)
92. McDonald, Novus Ordo Seclorum at 41 (cited in note 20).
93. See Kramer, The People Themselves at 8 (cited in note 20).
94. See Horwitz, Transformation of American Law at 143 (cited in note 48).
95. In contrast to colonial-era criminal statutes enacted by Parliament, federal criminal statutes were enacted by Congress, and the Supreme Court established early on that there is no federal criminal common law. See United States v Hudson & Goodwin, 11 US (7 Cranch) 32, 34 (1812)
96. Ben Rosenberg, The Growth of the Federal Criminal Com on Law, 29 Am J Crim L 193, 195-96 (2002).
97. See David Alan Sklansky, Lecture Notes, The Missing Years: Nineteenth-Century History in Criminal Procedure *15-19 (AALS Workshop on Criminal Law and Procedure, June 14-16, 2006), online at http://www.aals.org/ documents/2006criminal/criminalworkbook2006.pdf (visited Nov 26, 2011).
98. See Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 145-47, 153, 161-66 (Yale 1997) (arguing that the "first principles" to which constitutional criminal procedure should return are the principles of the 1780s-90s, not the 1860s-70s).
99. Danforth v Minnesota, 552 US 264, 269-70 (2008)
100. quoting Palko v Connecticut, 302 US 319, 325 (1937).
101. Duncan v Louisiana, 391 US 145, 149-50 n 14 (1968).
102. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L J 1193, 1268 (1992).
103. Consider Michael B. Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L Rev 729, 731 (2008).
104. See also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L J 408, 500-09 (2010) (arguing that the Due Process Clauses had a different meaning in 1868 than in 1791).
105. See Harmelin v Michigan, 501 US 957, 975 (1991) ("Unless one accepts the notion of a blind incorporation . . . the ultimate question is not what 'cruell and unusuall punishments' meant in the [English] Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment.").
106. See Steven M. Shepard, Note, The Case against Automatic Reversal of Structural Errors, 117 Yale L J 1180, 1213 (2008) (noting that, in 2002, there were 35,664 felony jury trials in the 23 states that record trial data but only 2,843 felony or class A misdemeanor jury trials in federal courts).
107. See George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 Mich L Rev 145, 162 (2001).
108. See Richard A. Primus, Bolling Alone, 104 Colum L Rev 975, 976 (2004) (defining reverse incorporation as the doctrine by which "the Fifth Amendment's Due Process Clause was construed to incorporate at least some-and later all-of the equal protec tion guarantee of the Fourteenth").
109. See Amar, Bill of Rights at 269-78 (cited in note 20) (discussing how the Reconstruction amendments transformed the Sixth Amendment in terms of locality requirements and the racial composition of juries).
110. See also Akhil Reed Amar, Intratextualism, 112 Harv L Rev 747, 772-73 (1999) (discussing how the Fourteenth Amendment transformed the Fifth Amendment).
111. Or, in Bruce Ackerman's language, the jurisprudence of a text drafted and ratified during Time Two (Reconstruction) should be governed by a synthesis of the original meanings at Times One (the Founding) and Two. Bruce Ackerman, We the People: Foundations 94-99 (Harvard 1991).
112. Moreover, in 1869 Congress created a new nine-member circuit court judiciary to carry federal judicial authority into the states.
113. See An Act to Amend the Judicial System of the United States § 2, 16 Stat 44 44-45 (1869).
114. Federal criminal trial courts were strengthened as well; the monumental Ku Klux Klan trials of 1871 and 1872 amounted to an unprecedented use of federal legal power over criminal law to secure new constitutional protection for blacks. See Kermit L. Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872, 33 Emory L J 921, 924-33 (1984).
115. See, for example, Federalist 83 (Hamilton), in The Federalist Papers 558, 564 (Wesleyan 1961) (Jacob E. Cooke, ed) (expressing doubt that trial by jury guarantees the court's integrity but concluding that "the trial by jury must still be a valuable check upon corruption")
116. Thomas Jefferson, Notes on the State of Virginia 140 (J.W. Randolph 1853)
117. See Amar, America's Constitution at 386-92 (cited in note 20).
118. Amar, Bill of Rights at 23 (cited in note 20).
119. See Amar, Bill of Rights at 242-46 (cited in note 20) (discussing how, with respect to the First Amendment, the Fourteenth Amendment may have transformed the due process theory of the Bill of Rights). Moreover, because criminal procedure was not merely incidental to the Fourteenth Amendment but was at its core-ingrained in the meaning of "due process"-it is possible to gain some insight into the Fourteenth Amendment's original meaning. Consider Nelson, Fourteenth Amendment at 6 (cited in note 47) (contending that whether the Due Process Clause was meant to preclude states from enacting antiabortion legislation "never occurred to the Reconstruction generation and hence cannot be answered by examining records of its actual thought").
120. Consider Murray's Lessee v Hoboken Land and Improvement Co, 59 US (18 How) 272, 276 (1855).
121. See also Andrew T. Hyman, The Little Word "Due," 38 Akron L Rev 1, 9-10 (2005) (arguing that the Due Process Clause had the same meaning in 1868 as it had in 1791).
122. See, for example, Cong Globe, 42d Cong, 2d Sess 822 (Feb 5, 1872) (Sen Sumner)
123. John Proffatt, A Treatise on Trial by Jury, Including Questions of Law and Fact § 376 at 440-41 (Sumner Whitney 1877):
124. The doctrine that the jury could take the law into their own hands was a popular one before and at the time of the Revolution. . . . But the doctrine was in due time discarded, the courts one after another holding it was the duty of the jury to be guided as to the law by the court. Francis Wharton, A Treatise on the Criminal Law of the United States § 3094 at 1115 (Kay & Brother 4th rev ed 1857).
125. For example, historical studies on nineteenth-century nullification doctrine and the jury's right to interpret the law do not address the Fourteenth Amendment or the Reconstruction Congresses at all. See, for example, Conrad, Jury Nullification at 98-99 (cited in note 4) (moving chronologically from the antebellum era directly to Sparf)
126. Alschuler and Deiss, 61 U Chi L Rev at 868-69 (cited in note 22) (noting that "[a]mong the topics that we have not considered [is] . . . the 'incorporation' of the right to jury trial in the Fourteenth Amendment's Due Process Clause").
127. See also generally Harrington, 1999 Wis L Rev 377 (cited in note 20)
128. Howe, 52 Harv L Rev 582 (cited in note 20).
129. Recent works on the Fourteenth Amendment's original meaning do not spend significant time on jury law. See generally James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment 252 (Praeger 1997)
130. Nelson, Fourteenth Amendment at 182-84 (cited in note 47)
131. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 204-05 (Duke 1986).
132. See King, 65 U Chi L Rev at 457-58 n 102 (cited in note 17).
133. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L J 1131, 1195 (1991): The strongest defense of [the Supreme Court's] holding [in Sparf] comes from provisions never cited by the Court, namely the Civil War Amendments. . . . [J]ury review would have created in fundamentally local bodies a power that approached de facto nullification in a wide range of situations. Existence of such a power in local bodies to nullify Congress' Reconstruction statutes might have rendered the Civil War Amendments a virtual dead letter. Thus it is plausible to think that these Amendments implicitly qualified the (equally implicit) power of local juries to thwart national laws.
134. See also Amar, Bill of Rights at 103 (cited in note 20) (same).
135. See, for example, Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says about Your Rights 94-114 (Free Press 1998) (arguing for the jury's right "to play a role in deciding some questions of constitutional law"); id at 106-07 (arguing that when the jury is deliberately kept "in the dark" about "the existence of a constitutional right" to nullify, "both the defendant and the jurors are effectively denied their rights")
136. Akhil Reed Amar, Sixth Amendment First Principles, 84 Georgetown L J 641, 685 (1996).
137. Amar, America's Constitution at 241-42 (cited in note 21).
138. Indeed, Professor Amar's new book, America's Unwritten Constitution (forthcoming, Basic Books 2012), explicitly advocates for nullification to have an open and legitimate role in modern criminal jury trials
139. See Amar, 101 Yale L J at 1266 (cited in note 72)
140. Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz St L J 1085, 1087-88 (1995).
141. See, for example, Amar, 80 Cornell L Rev at 203-04 (cited in note 9)
142. Forman, 113 Yale J at 910 (cited in note 9).
143. Forman, 113 Yale L J at 934 (cited in note 9).
144. See, for example, Act of Apr 20, 1871 ("Ku Klux Klan Act of 1871") § 5, 17 Stat 13, 15 (excluding certain persons from jury service in Ku Klux Klan Act prosecutions)
145. See, for example, Cong Globe, 41st Cong, 2d Sess 2148 (Mar 22, 1870) (Rep Blair).
146. Section 1's language is notoriously ambiguous, see Nelson, Fourteenth Amendment at 61 (cited in note 47) (discussing "the vagueness and ambiguity of section one's language and the failure of the framing generation to settle how it would apply to a variety of specific issues"), and it mentions nothing explicitly about juries. Moreover, its legislative history provides little assistance because most congressional debate on the Fourteenth Amendment addressed § 2 and § 3, and the debates generally focused on practical questions of politics rather than on theoretical questions about the juristic meaning of the amendment's prov sions.
147. See Bond, No Easy Walk at 8 (cited in note 88).
148. No congressional debates on the Amendment, to my knowledge, specifically addressed the jury's law-deciding right or power. Furthermore, the state ratification debates are a dead end. "Most of the legislatures that considered the Fourteenth Amendment kept no record of their debates, or their discussion was so perfunctory that it does not shed light on their understanding of its meanings." Curtis, No State Shall Abridge at 145 (cited in note 88). The accounts that survive are typically from newspaper sources that are not known for accuracy.
149. See Bond, No Easy Walk at 8 (cited in note 88). Consequently, "there are few studies of the state ratification debates . . . . [N]one thoroughly explores the understandings of politicians and citizens who participated" in them
150. See Nelson, Fourteenth Amendment at 5 (cited in note 47) (emphasizing the centrality of legislative records to Fourteenth Amendment scholarship and deeming the congressional debates to be "[a]n unusually extensive and rich body of materials").
151. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va L Rev 947, 953 (1995).
152. Professor Amar does not limit his brief nullification theory to the Fourteenth Amendment but rather invokes all three Reconstruction amendments. See Amar, 100 Yale L J at 1195 (cited in note 90)
153. Amar, 80 Cornell L Rev at 204 (cited in note 9). But it is difficult to see how the Thirteenth or Fifteenth Amendments would apply to nullification. Only the Fourteenth Amendment provides due process protection and incorporates other rights. It may guarantee a right of protection of the law at the heart of the Congresses' jury-related legislation, and Reconstruction-era members of Congress spoke in terms of the Fourteenth Amendment affecting jury rights.
154. See, for example, 2 Cong Rec S 974 (Jan 28, 1872) (Sen Edmunds) ("The fourteenth amendment allows Congress to require that colored men shall sit upon juries.").
155. For example, when Professor Berger called for a restoration of the jury's right to nullify, he did not distinguish between federal and state cases. See Berger, 1990 BYU L Rev at 887-91 (cited in note 18).
156. Compare, for example, Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan L Rev 5, 78 (1949) (arguing that selective incorporation lacks historical support)
157. Louis Henkin, "Selective Incorporation" in the Fourteenth Amendment, 73 Yale L J 74, 76-77 (1963) (same)
158. with Amar, Bill of Rights at 141-43 (cited in note 20) (arguing that the Framers of § 1 understood their Amendment to achieve a version of selective incorporation)
159. Curtis, No State Shall Abridge at 4-9 (cited in note 88) (same).
160. See US Const Amend XIV, § 1.
161. For example, Thomas Cooley, the leading Reconstruction-era constitutional treatise writer, defined "due process" to include criminal "trial" and added that, generally, "an accused person will be entitled to the judgment of his peers." Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 224-25 (Little, Brown 1880). In 1868, he wrote that "The trial of the guilt or innocence of the accused must be by jury," a principle that he noted dated back in America to the earliest extant Plymouth Colony legislation.
162. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 319 & n 1 (Little, Brown 1868).
163. Chester James Antieau, The Intended Significance of the Fourteenth Amendment 142 (Hein 1997).
164. See Bond, No Easy Walk at 256 (cited in note 88).
165. See, for example, Cong Globe, 41st Cong, 2d Sess 176 (Dec 16, 1869) (Sen Edmunds) (stating that, "under a civil government," trial by jury "of course is the only method of punishing crime").
166. See also Bond, No Easy Walk at 256 (cited in note 88).
167. See, for example, Thomas, 100 Mich L Rev at 215 (cited in note 76).
168. See Amar, Bill of Rights at 185-86 (cited in note 20)
169. Curtis, No State Shall Abridge at 112-13 & n 36 (cited in note 88).
170. See, for example, Cong Globe, 42d Cong, 2d Sess 844 (Feb 6, 1872) (Sen Sherman) (stating that the "right to be tried by an impartial jury is one of the privileges included in the fourteenth amendment; and no State can deprive any one by a State law of this impartial trial by jury")
171. Cong Globe, 39th Cong, 1st Sess 2765 (May 23, 1866) (Sen Howard) (stating that among the fundamental guarantees made binding upon the states was the "right of an accused person . . . to be tried by an impartial jury").
172. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-77 258 (Harper & Row1988).
173. See Amar, 100 Yale L J at 1186-87 (cited in note 90) (discussing the Founding-era perception of "jurors as pupils," in which "[c]itizens would learn self-government by doing selfgovernment").
174. See United States v Shive, 27 F Cases 1065, 1066 (CC ED Pa 1832)
175. United States v Battiste, 24 F Cases 1042, 1043 (CC D Mass 1835) (Story)
176. United States v Stettinius, 22 F Cases 1322, 1327 (CC DDC 1839)
177. United States v Greathouse, 26 F Cases 18, 21 (CC ND Cal) 1863)
178. United States v Riley, 27 F Cases 810, 812 (CC SDNY 1864).
179. For example, in 1851, sitting in the same court in which Justice Story had decided Battiste sixteen years earlier, Justice Benjamin Robbins Curtis noted that "Justice Story pronounced an opinion on this question" of nullification. "He denied that this right existed, and gave reasons for the denial of exceeding weight and force." United States v Morris, 26 F Cases 1323, 1335 (CC D Mass 1851). Although Justice Curtis noted his agreement with Justice Story, he still proceeded to answer the question independently, conducting his own originalist analysis of Founding-era history and concluding that the jury had no right to nullify. See id at 1334-35.
180. See Wharton, Criminal Law §§ 3100-01 at 1120-21 (cited in note 87).
181. Proffatt, Trial by Jury §§ 377-81 at 441-45 (cited in note 87).
182. Howe, 52 Harv L Rev at 591-612 (cited in note 20).
183. See State v Buckley, 40 Conn 246, 249 (1873).
184. See Withers v State, 1 Shannon 276, 282 (Tenn 1874).
185. See also Howe, 52 Harv L Rev at 599 (cited in note 20).
186. See Brown v State, 40 Ga 689, 697-98 (1870).
187. Ga Const of 1877, Bill of Rights Art I, § 2, 1 (superseded 1945) ("The jury in all criminal cases shall be the judges of the law and the facts.").
188. See State v Tally, 23 La Ann 677, 678 (La 1871).
189. State v Johnson, 30 La Ann 904, 905-06 (La 1878) (Manning concurring).
190. La Const of 1879 Art 168.
191. Francis Wharton, A Treatise on the Law of Homicide in the United States: To Which Is Appended a Series of Leading Cases 722-23 (Kay and Brother 1875) (discussing the court's charge to the jury in Sherry's Case).
192. Compare Hilands v Commonwealth, 2 A 70, 72 (Pa 1886) (stating that jurors "are not only the judges of the facts . . . but also of the law")
193. with Commonwealth v McManus, 21 A 1018, 1019-20 (Pa 1891) (compelling the jury to take the law from the court, although not permitting the judge to "give[] them a binding instruction upon the law").
194. Wharton, Treatise on the Criminal Law §§ 3093-3108 at 1115-25 (cited in note 87).
195. Wharton, Treatise on the Criminal Law § 3094 at 1115 (cited in note 87).
196. See Kermit L. Hall, The Magic Mirror: Law in American History 222 (Oxford 1989)
197. Jerome C. Knowlton, Thomas McIntyre Cooley, 5 Mich L Rev 309, 312-14 (1907).
198. Cooley, Treatise on the Constitutional Limitations at 322 (cited in note 112).
199. Cooley, Treatise on the Constitutional Limitations at 323-24 (cited in note 112).
200. See Law Decisions, NY Times 3 (May 17, 1880)
201. Obituary Notes, NY Times 2 (July 23, 1879).
202. Proffatt, Treatise on Trial by Jury § 359 at 426-27 (cited in note 87).
203. Proffatt, Treatise on Trial by Jury § 375 at 439-40 (cited in note 87).
204. Henry Flanders, An Exposition of the Constitution of the United States 217 (Butler 1860).
205. Consider Tennessee v Lane, 541 US 509, 559 (2004) (Scalia dissenting) (relying on the 1860 edition of Webster's American Dictionary of the English Language to define "enforce" in the Fourteenth Amendment).
206. Noah Webster, 2 An American Dictionary of the English Language at "jury" (Converse 1828).
207. Philip P. Gove, ed, Webster's Third New International Dictionary of the English Language Unabridged 6a (Merriam 1967).
208. Noah Webster, An American Dictionary of the English Language 732 (G. & C. Merriam rev and enl ed 1865) (Chauncey A. Goodrich and Noah Porter, eds).
209. See Horace White, The Life of Lyman Trumbull 152, 223-24, 257-60 (Houghton Mifflin 1913).
210. See Foner, Unfinished Revolution at 246 (cited in note 119).
211. See Cong Globe, 39th Cong, 1st Sess 1039 (Feb 27, 1866).
212. See Cong Globe, 39th Cong, 1st Sess 1132-47 (Mar 2, 1866).
213. Cong Globe, 39th Cong, 1st Sess 1042 (Feb 27, 1866) (Sen Dixon).
214. See Bertram Wyatt-Brown, The Civil Rights Act of 1875, 18 W Polit Sci Q 763, 763 (1965).
215. See Cong Globe, 38th Cong, 1st Sess 521 (Feb 8, 1864).
216. See Civil Rights Act of 1875, 18 Stat 335, invalidated as unconstitutional by Civil Rights Cases, 109 US 3, 24-26 (1883)
217. See also Ronald B. Jager, Charles Sumner, The Constitution, and the Civil Rights Act of 1875, 42 New Eng Q 350, 361-63 (1969).
218. See Cong Globe, 40th Cong, 1st Sess 481 (July 5, 1867) (Sen Anthony).
219. See Cong Globe, 40th Cong, 1st Sess at 498 (cited in note 178) (recording that the Senate vote was 23-9 with 21 absent and Sumner voting against).
220. Civil Rights Act of 1866 § 1, 42 USC § 1982.
221. Cong Globe, 42d Cong, 2d Sess 822 (cited in note 178) (Sen Sumner).
222. 2 Cong Rec 3455 (Apr 29, 1874) (Sen Frelinghuysen).
223. See Civil Rights Act of 1875 § 4, 18 Stat at 336; Forman, 113 Yale L J at 930 & n 182 (cited in note 9).
224. See, for example, 2 Cong Rec 1326 (Feb 9, 1874) (Sen Merrimon) (noting, in reference to the 1874 amendments to the Bankruptcy Act of 1867, that in both federal and state courts "the judge charges [jurors] as to the law and their duties").
225. Test-Oath Act of 1862, 12 Stat at 502
226. repealed by Act of May 13, 1884 § 2, 23 Stat 21, 22.
227. See Cong Globe, 40th Cong, 2d Sess 1145 (Feb 13, 1868) (Sen Sumner).
228. See "Trumbull, Lyman," in United States Congress, Biographical Dictionary of the United States Congress, 1774-1989, 1957, 1957 (GPO bicentennial ed 1989).
229. See Cong Globe, 40th, 2d Sess at 1146 (cited in note 191) (Sen Trumbull).
230. See Xi Wang, The Making of Federal Enforcement Laws, 1870-1872, 70 Chi Kent L Rev 1013, 1023 n 36 (1995).
231. Cong Globe, 40th Cong, 2d Sess 1174 (Feb 14, 1868) (Sen Stewart).
232. See "Stewart, William Morris," in United States Congress, Biographical Dictionary at 1877 (cited in note 192).
233. See Cong Globe, 40th Cong, 2d Sess 1271 (Feb 19, 1868) (recording that the Senate's vote was 27-20 in favor of rejecting Thomas, with 6 absent).
234. Ind Const Art I, § 19.
235. See Proffatt, Treatise on Trial by Jury § 380 at 443 (cited in note 87).
236. See also Beavers v State, 141 NE2d 118, 121-23 (Ind 1957).
237. See Normal W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan L Rev 1931, 1961 & n 170 (2008).
238. See Cong Globe, 40th Cong, 2d Sess 981 (Feb 5, 1868) (Sen Howard).
239. See "Hendricks, Thomas Andrews," in United States Congress, Biographical Dictionary at 1172 (cited in note 192).
240. Cong Globe, 40th Cong, 2d Sess at 982-83 (cited in note 203) (Sen Hendricks).
241. See Howe, 52 Harv L Rev at 596-97 n 57 (cited in note 20) (noting that in 1881, the Virginia Supreme Court began explicitly requiring juries to follow the judge's legal instructions in criminal cases).
242. Cong Globe, 39th Cong, 2d Sess 1465 (Feb 16, 1867) (Sen Van Winkle) (noting the particular hardship for Virginia's nullification laws on freed blacks in that state).
243. See Cong Globe App, 40th Cong, 2d Sess 85 (Jan 13, 1868) (Rep Williams).
244. Cong Globe, 39th Cong, 1st Sess 62 (Dec 14, 1865) (Sen Morrill).
245. Cong Globe, 40th Cong, 2d Sess 2277 (Apr 8, 1868) (Sen Davis).
246. Cong Globe, 39th Cong, 2d Sess 1465 (Feb 16, 1867) (Sen Davis).
247. Consider Rappaport, 45 San Diego L Rev at 731 (cited in note 73) (discussing the Takings Clause and arguing that the meaning at the time of the Fourteenth Amendment's passage may have been different)
248. Williams, 120 Yale L J at 414 (cited in note 73) (discussing the Due Process Clauses in a similar manner).
249. Consider Hyman, 38 Akron L Rev at 10 (cited in note 86) (arguing that the Fourteenth Amendment's Framers would not have been inclined "to alter the meaning of the venerated Bill of Rights").
250. See William C. Davis, Jefferson Davis: The Man and His Hour 652-53 (HarperCollins 1991) (describing how efforts to try Davis in a military commission were rendered impossible when he was cleared of involvement in President Abraham Lincoln's assassination).
251. See Harrington, 1999 Wis L Rev at 402-03 (cited in note 20).
252. Cong Globe, 39th Cong, 1st Sess 338 (Jan 22, 1866) (Sen Doolittle).
253. S 464 § 2, 40th Cong, 2d Sess (Mar 26, 1868).
254. See Cong Globe, 40th Cong, 2d Sess 2277 (Apr 8, 1868).
255. HR 418, 39th Cong, 2d Sess (Mar 22, 1866) (emphasis added).
256. Cong Globe, 39th Cong, 2d Sess 24 (Dec 5, 1866) (Rep Lawrence) (emphasis added).
257. See, for example, William Blackstone, 1 Commentaries on the Laws of England 59 (Chicago 1979) ("[W]here words are clearly repugnant in two laws, the latter takes place of the elder.").
258. Consider Williams, 120 Yale L J at 504-05 (cited in note 73) ("If the language of the two Due Process Clauses reflected some sort of actual conflict such that the competing understandings of the two generations of ratifiers could not be honored simultaneously, there would be a fairly strong argument that the meaning of the later-enacted provision should control.").
259. See Deirdre A. Harris, Note, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U L Rev 968, 976-1003 (1978)
260. Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L J 170, 192 (1964).
261. See Note, 74 Yale L J at 175 n 31 (cited in note 228).
262. See Act of Mar 12, 1808, 1808 Mass Acts ch 139, § 15.
263. 9 Stat 462.
264. See Note, 74 Yale L J at 177 n 47 (cited in note 228).
265. See An Act Concerning the Duties and Rights of Jurors, 1855 Mass Acts ch 152, codified as amended at Mass Ann Laws ch 278, § 11.
266. See Richard E. Ellis, The Union at Risk: Jacksonian Democracy, States' Rights, and the Nullification Crisis 50, 75-76 (Oxford 1987)
267. William W. Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1616-1836 210-11, 271-73 (Harper & Row 1966).
268. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War 129-30 (Oxford 1995)
269. quoting the Republican Party Platform of 1856.
270. Act of July 1, 1862 ("Morrill Anti-Bigamy Act"), 12 Stat 501, repealed by Act of Nov
271. 1978 § 2, Pub L No 95-584, 92 Stat 2483, 2483.
272. Morrill Anti-Bigamy Act § 1, 12 Stat at 501.
273. See Amar, America's Constitution at 361-63 (cited in note 21).
274. See, for example, William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv L Rev 780, 821 (2006) ("The [Fourteenth] Amendment's authors wrote those provisions to correct a democracy deficit: the tendency of Southern officials to deny newly freed slaves the 'protection of the laws.'")
275. Wilson R. Huhn, The State Action Doctrine and the Principle of Democratic Choice, 34 Hofstra L Rev 1379, 1403 (2006)
276. [C]onsider the way the Clause reads if the adjective 'equal' is omitted: 'No State shall . . . deny to any person . . . the . . . protection of the laws.' . . . This reading of the Equal Protection Clause, although unfamiliar to contemporary Americans, was the standard understanding of the Framers of the Fourteenth Amendment, who were concerned with the lack of protection accorded to Unionists and newly-freed slaves in the Reconstruction South. Lawrence Rosenthal, Policing and Equal Protection, 21 Yale L & Pol Rev 53, 71 (2003) ("[W]hile we have become used to thinking of the concept of equal protection as a right of the individual against the state, its original meaning had much more to do with guaranteeing that law enforcement would be equally effective against all threats to public peace and safety.")
277. Evan Tsen Lee and Ashutosh Bhagwat, The McCleskey Puzzle: Remedying Prosecutorial Discrimination against Black Victims in Capital Sentencing, 1998 S Ct Rev 145, 150 ("[O]ne of the core, historical objectives of the Equal Protection Clause . . . was to require southern states to protect newly freed slaves from private violence by southern whites.")
278. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888 349 (1985) ("Against this background [of violence against freedmen] equal protection seems to mean that the states must protect blacks to the same extent that they protect whites: by punishing those who do them injury.").
279. See, for example, Akhil Reed Amar, Book Review, Three Cheers (and Two Quibbles) for Professor Kennedy, 111 Harv L Rev 1256, 1261-62 (1998) ("A core purpose of the 1866 Equal Protection Clause was to affirm the rights of black victims of crime.")
280. Richard L. Aynes, Constitutional Considerations: Government Responsibility and the Right Not to Be a Victim, 11 Pepperdine L Rev 63, 77 (1984) ("While equal treatment was certainly an important concern of those who framed the fourteenth amendment, the clause also speaks of 'the equal protection of the laws.' It is this aspect of the equal protection clause which has particular relevance to the victims of crime.").
281. See Steven J. Heyman, The First Duty of Government: Protection, Liberty, and the Fourteenth Amendment, 41 Duke L J 507, 546 (1991).
282. 14 Stat 173 (1866).
283. Freedmen's Bureau Act § 14, 14 Stat at 176 (1866).
284. Cong Globe, 39th Cong, 1st Sess 1293 (Mar 9, 1866) (Rep Shellabarger).
285. Cong Globe, 39th Cong, 1st Sess 1757 (Apr 4, 1866) (Sen Trumbull).
286. See, for example, Heyman, 41 Duke L J at 555-57 (cited in note 242).
287. 6 F Cases 546 (CC ED Pa 1823).
288. Slaughter-House Cases, 83 US (16 Wall) 36, 75-76 (1873).
289. Corfield, 6 F Cases at 551-52.
290. Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-enactment History, 19 Geo Mason U Civ Rts L J 1, 3 (2008).
291. See, for example, Heyman, 41 Duke L J at 557-63 (cited in note 242).
292. Cong Globe, 39th Cong, 1st Sess 1833 (Apr 7, 1866) (Rep Lawrence).
293. Cong Globe, 39th Cong, 1st Sess 1294 (Mar 29, 1866) (Rep Wilson).
294. But consider King, 65 U Chi L Rev at 457 n 102 (cited in note 17): The suggestion that the Fourteenth Amendment implicitly repealed the power of the jury, assuming such power once existed, is problematic. The interest of the government or of the victim in a conviction free from nullification is difficult to characterize as part of the due process guaranteed by that amendment, and the Fourteenth Amendment is not inevitably incompatible with jury nullification power.
295. See Heyman, 41 Duke L J at 568 (cited in note 242).
296. Cong Globe App, 42d Cong, 1st Sess 252 (Apr 4, 1871) (Sen Morton).
297. 2 Cong Rec 948 (Jan 27, 1874) (Sen Edmunds).
298. See Civil Rights Act of 1875 § 4, 18 Stat at 336-37.
299. Forman, 113 Yale L J at 897 (cited in note 9).
300. Randall Kennedy, Race, Crime, and the Law 302 (Vintage 1997).
301. Amar, Bill of Rights at 272 (cited in note 20).
302. Hall, 33 Emory L J at 938 (cited in note 79) (emphasis added).
303. See Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 282 (Vintage 1979).
304. See Forman, 113 Yale L J at 916 (cited in note 9).
305. See Litwack, Been in the Storm So Long at 285 (cited in note 265).
306. See Foner, Unfinished Revolution at 204 (cited in note 119).
307. Forman, 113 Yale L J at 921 (cited in note 9).
308. Litwack, Aftermath of Slavery at 286 (cited in note 265).
309. Foner, Unfinished Revolution at 435 (cited in note 119).
310. Cong Globe, 42d Cong, 1st Sess 158 (Mar 18, 1871) (Sen Sherman).
311. Cong Globe, 41st Cong, 2d Sess 176-77 (Dec 16, 1869) (Sen Edmunds).
312. 3 Cong Rec 735 (Jan 26, 1875) (Sen Pease).
313. 3 Cong Rec 1795 (Feb 26, 1875) (Sen Morton).
314. King, 65 U Chi L Rev at 466 (cited in note 17).
315. See Cong Globe App, 42d Cong, 1st Sess 196 (Apr 6, 1871) (Rep Snyder).
316. Cong Globe App, 42d Cong, 1st Sess 252 (Apr 4, 1871) (Sen Morton).
317. See also Cong Globe, 42d Cong, 1st Sess 158 (Mar 18, 1871) (Sen Sherman).
318. Cong Globe, 42d Cong, 1st Sess 437 (cited in note 281) (Rep Cobb).
319. Cong Globe, 42d Cong, 1st Sess 654 (Apr 13, 1871) (Sen Osborn).
320. Cong Globe, 41st Cong, 2d Sess 2745 (Apr 18, 1870) (Sen Drake).
321. Frank J. Scaturro, The Supreme Court's Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence 99 (Greenwood 2000)
322. quoting To Protect Loyal and Peaceable Citizens of the United States, HR Rep No 41-37, 41st Cong, 3d Sess 4 (1871).
323. Scaturro, Retreat from Reconstruction at 100-01 (cited in note 285). 287 17 Stat 13.
324. See Ku Klux Klan Act of 1871 § 3, 17 Stat at 14
325. Foner, Unfinished Revolution at 454-55 (cited in note 119).
326. See Scaturro, Retreat from Reconstruction at 101-02, 110-13 (cited in note 285).
327. Cong Globe, 42d Cong, 1st Sess 486 (Apr 5, 1871) (Rep Cook).
328. Ku Klux Klan Act of 1871 § 5, 17 Stat at 15.
329. See Foner, Unfinished Revolution at 455 (cited in note 119).
330. Cong Globe, 42d Cong, 1st Sess 793 (Apr 19, 1871) (Rep Butler).
331. Cong Globe, 42d Cong, 1st Sess 766 (Apr 18, 1871) (Sen Casserly).
332. See Hall, 33 Emory L J at 934-41 (cited in note 79).
333. See Foner, Unfinished Revolution at 457 (cited in note 119).
334. See Forman, 113 Yale L J at 925-26 (cited in note 9).
335. See Foner, Unfinished Revolution at 458-59 (cited in note 119).
336. Dred Scott, 60 US (19 How) at 407.
337. See Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America 1, 9, 59 (Carolina 2002).
338. See Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830-1900 137 (Illinois 2001) (noting that an existing territorial statute banned adultery, but that only the offended spouse could initiate proceedings, and that the first prosecution under this statute did not occur until 1871).
339. See Foner, Free Soil at 130 (cited in note 235).
340. See Gordon, Mormon Question at 57, 62-63 (cited in note 301).
341. Morrill Anti-Bigamy Act § 1, 12 Stat at 501.
342. See Gordon, Mormon Question at 83 (cited in note 301).
343. Firmage and Mangrum, Zion in the Courts at 139 (cited in note 302)
344. quoting Robert Joseph Dwyer, The Gentile Comes to Utah: A Study in Religious and Social Conflict (1862-1890) 9 (Catholic U 1941).
345. See Gordon, Mormon Question at 111 (cited in note 301).
346. As a judiciary committee report lamented five years after polygamy was outlawed, the Morrill Act was a "dead letter." Report from the Committee on the Judiciary, HR Rep No 27, 39th Cong, 2d Sess 3 (Feb 28, 1867).
347. Gordon, Mormon Question at 14 (cited in note 301).
348. US Const Art IV, § 3, cl 2.
349. See Gordon, Mormon Question at 4, 126 (cited in note 301).
350. See Gordon, Mormon Question at 86 (cited in note 301).
351. Dred Scott, 60 US (19 How) at 450.
352. See Brief of Plaintiff in Error, Reynolds v United States, No 180, *53 (US filed Oct 2, 1876) ("Reynolds Brief").
353. Reynolds v United States, 98 US 145, 161-62 (1879).
354. See Kathleen M. Sullivan and Gerald Gunther, First Amendment Law 536 (Foundation 4th ed 2007)
355. Douglas Laycock, A Survey of Religious Liberty in the United States, 47 Ohio St L J 409, 419-25 (1986).
356. See Gordon, Mormon Question at 221 (cited in note 301).
357. See Firmage and Mangrum, Zion in the Courts at 140-42, 144 (cited in note 302).
358. Cong Glob, 41st Cong, 2d Sess 3 (Dec 6, 1869) (Sen Cragin).
359. Cong Globe App, 41st Cong, 2d Sess 178 (Mar 22-23, 1870) (Delegate Hooper).
360. Cong Globe, 41st Cong, 2d Sess 2148 (Mar 22, 1870) (Rep Blair)
361. Cong Globe, 41st Cong, 2d Sess 2181 (Mar 23, 1870).
362. See Gordon, Mormon Question at 111-12 (cited in note 301).
363. Firmage and Mangrum, Zion in the Courts at 147 (cited in note 302).
364. Clinton v Englebrecht, 80 US (13 Wall) 434, 440 (1871).
365. See Firmage and Mangrum, Zion in the Courts at 145 (cited in note 302).
366. President Ulysses S. Grant, Message to Congress (Feb 14, 1873), in Cong Globe, 42d Cong, 3d Sess 1357.
367. State v McDonnell, 32 Vt 491, 523 (1860).
368. See, for example, 2 Cong Rec 4468 (June 2, 1874) (Rep Crounse).
369. 2 Cong Rec at 4475 (cited in note 350).
370. See Gordon, Mormon Question at 111-12 (cited in note 301).
371. 2 Cong Rec 5415 (June 23, 1874) (Sen Frelinghuysen).
372. 2 Cong Rec at 5444 (cited in note 357) (Rep Poland).
373. See Gordon, Mormon Question at 113-15, 147 (cited in note 301).
374. See Firmage and Mangrum, Zion in the Courts at 151-53 (cited in note 302)
375. Gordon, Mormon Question at 114-15 (cited in note 301).
376. See Miles v United States, 103 US 304, 310-11 (1880) (upholding the dismissal of jurors characterized as biased after they said that they believed polygamy was ordained by God).
377. 22 Stat 30 (1882)
378. See Gordon, Mormon Question at 155-57 (cited in note 301) (finding that from 1871 to 896, over 2,500 criminal cases were brought in Utah, of which more than half were polygamy related).
379. See Blakely v Washington, 542 US 296, 305 (2004).
380. United States v Carolene Products Co, 304 US 144, 153 n 4 (1938).
381. Consider Amar, Bill of Rights at 243 (cited in note 20) (discussing the Reconstructionera "feedback effect" on the original Bill of Rights).