LYSANDER SPOONER, LIFESTYLE ANARCHISM, AND JURY NULLIFICATION by edward john skrod A Thesis Submitted to the Faculty of The Wilkes Honors College in Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts in Liberal Arts and Sciences with a Concentration in Philosophy Wilkes Honors College of Florida Atlantic University Jupiter, Florida May 2011 i LYSANDER SPOONER, LIFESTYLE ANARCHISM, AND JURY NULLIFICATION by edward john skrod This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Daniel R. White, and has been approved by the members of his supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences. SUPERVISORY COMMITTEE: ___________________________________________ Dr. Daniel R. White ___________________________________________ Dr. Christopher Strain ___________________________________________ Dean, Wilkes Honors College _______________ Date ii ABSTRACT Author: edward john skrod Title: Lysander Spooner, Lifestyle Anarchism, and Jury Nullification Institution: Wilkes Honors College of Florida Atlantic University Thesis Advisor: Dr. Daniel R. White Degree: Bachelors of Arts in Liberal Arts and Sciences Concentration: Philosophy Year: 2011 Individual anarchism, a social movement of the early nineteenth century, was founded on the principles of self-sovereignty and individualism. One such anarchist, Lysander Spooner, argues in “Vices are not Crimes” that vices should not be criminalized by the State. To do so, “deprive*s+ every man of his… liberty to pursue his own happiness.”1 I argue that Spooner’s essay lays the foundation for “lifestyle anarchism,” the doctrine that all the affairs of human beings within the domain of their lifestyle choices (provided they do not harm the person or property of another), should be managed by individuals or voluntary associations. One method of resistance against the criminalization of lifestyle choices is jury nullification: the ability of the jury to return a verdict of “not guilty” despite evidence of guilt. Spooner, in An Essay on the Trial by Jury, argues that nullification can be used to resist oppressive laws. I contend that lifestyle anarchists should support efforts by organizations such as the Fully Informed Jury Association to educate the public of their ability to practice jury nullification. 1 Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org, http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch. 13. iii TABLE OF CONTENTS Introduction………………………………………………………………………………………………………………… 1 Chapter 1 …………………………………………………………………………………………………………………. 11 Chapter 2 Section I………………………………………………………………………………………………………… 21 Section II……………………………………………………………………………………………………….. 28 Chapter 3 …………………………………………………………………………………………………………………. 41 Conclusion ……………………………………………………………………………………………………………….. 62 Appendix I: A Direction for Further Research - Law in an Anarchistic Society ……………. 65 Works Cited ……………………………………………………………………………………………………………… 77 iv Introduction Unless [a] clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property. For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.2 Writing within the tradition of American individual anarchism, nineteenth century legal theorist, lawyer and abolitionist Lysander Spooner makes a compelling argument in “Vices are Not Crimes: A Vindication of Moral Liberty” against a government’s right to punish individuals for their so-called vices.3 Vices, according to Spooner, are those “errors which a *person+ makes in his search after his own happiness” which “imply no malice toward others, and no interference with [another+ person or property,” while crimes are “those acts by which one *person+ harms the person or property of 2 Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org, http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch 1. 3 For the purpose of this essay, I follow in the footsteps of David Friedman, who defines government as “an agency of legitimized coercion…. ‘[C]oercion,’ for the purposes of this definition,[is] the violation of what people in a particular society believe to be the rights of individuals with respect to other individuals.” “The Machinery of Freedom: Guide to a Radical Capitalism (excerpt)” in Anarchy and the Law, ed. Edward Stringham, 40-56 (New Brunswick: Transaction Publishers, 2007), 40. 1 another.”4 Spooner’s argument for moral liberty outlined in “Vices are Not Crimes” forms the basis for what I have deemed “lifestyle anarchism,” the idea that in the matter of vices, most of which have to do with an individual’s lifestyle, (such as recreational drug use, prostitution, sodomy, gambling, seatbelt laws, and the like), the individual has no obligation to governments and, furthermore, when governments intervene in this domain, they should be resisted at every turn. If anarchism, as vociferous proponent Benjamin Tucker exclaimed, is “the doctrine that all the affairs of men should be managed by individuals or voluntary associations, and that the State should be abolished,” then lifestyle anarchism might be described as the doctrine that all the affairs of human beings within the domain of their lifestyle choices, whether virtuous or vicious, and provided they harm not the person or property of another, should be managed by individuals or voluntary associations, and that the State should mind its own business.5 Furthermore, when the State criminalizes lifestyle choices, it ought to be resisted. The question is, “how?” How might individuals oppose the State’s laws? Spooner’s 1852 essay on the rights of juries, titled “Trial by Jury,” provides one such course of action: 4 Spooner, "Vices Are Not Crimes,” Ch. 1. 5 Benjamin Ricketson Tucker, Instead of a Book, The Right Wing Individualist Tradition in America, (New York: Arno Press, 1972), 9. 2 In criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.6 According to Spooner, the jury has the historically constituted legal and moral authority to acquit the accused based upon their judgment of the law even when it is evident that the defendant has broken it. The name for this practice is “jury nullification.” Condemned by the courts since the late nineteenth century, jury nullification, in the manner described in Trial by Jury, can and ought to be used as a tool to resist the State’s criminalization of lifestyle choices. The history of jury nullification in the United States bears consideration. Until the 1895 Supreme Court case, Sparf v. United States, the right and duty of juries to judge both the facts and the justice of the law of a criminal case was widely recognized.7 The Sparf case narrowed the role of the jury to the judgment of only the evidence in a case. The jury was relegated to a nominal fact-finding role.8 Indeed, in the eighteenth and early nineteenth centuries, it was “commonly accepted that a defendant had the right to a jury which both found facts and determined where the law should apply.”9 One 6 Spooner, “Trial by Jury (excerpt),” 484. Emphasis in original. 7 Sparf v. US, 156 U.S. 51 (1895). 8 Arie M Rubenstein, "Verdicts of Conscience: Nullification and the Modern Jury Trial," Columbia Law Review 106, no. 4 (2006): 959. 9 Rubenstein, “Verdicts of Conscience,” 959. 3 need only look to the 1794 Supreme Court case of The State of Georgia v. Brailsford, to find an example of the court’s prior approval of jury nullification.10 With the concurrence of all judges on the court, Chief Justice John Jay wrote: It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable rule of distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and determine the law as well as the fact in controversy…. [B]oth objects are lawfully within your power and decision.11 The Sparf decision, however, reversed this tradition by a margin of seven to two. The U.S. Supreme Court voted to uphold a conviction in a case whereby the trial judge refused the defense attorney’s request to inform the jury of their nullification power. Spooner’s contention in Trial by Jury is that such a reversal of tradition results in government oppression. According to Spooner, “unless such be the right and duty of jurors, it is plain that, instead of juries being a ‘palladium of liberty’ --- a barrier against the tyranny and oppression of the government --- they are really