Jonathan Bressler, Reconstruction and the Transformation of Jury Nullification, 78 U. Chi. L. Rev. 1133 (2011)
Abstract: This Article (1) responds to what is an emerging consensus among these commentators that the Supreme Court’s prohibition of jury nullification cannot be justified on originalist or historical grounds and (2) provides new evidence of how the Fourteenth Amendment’s Framers, ratifiers, original interpreters, and original enforcers thought about juries, evidence that differs from the traditional perspective that the Reconstruction Congresses intended to empower juries. It finds that the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury’s historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.