Akhil Amar on Jury Nullification and State Nullification (Converse-§1983 Laws)

by Stephan Kinsella on October 31, 2026

[Cross-post at StephanKinsella.com]

I’ve been listening to Yale law professor Akhil Reed Amar’s podcast, Amarica’s Constitution, on and off for a while, even though he’s mainstream and somewhat liberal. But unlike most of the legal academy, not reflexively centralist. (See his America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books, 2012).)¹

His recent episode, “The Innocent Ham Sandwich” (Amarica’s Constitution, Oct. 28, 2026, with co-host Andy Lipka) has a couple of ideas of interest to libertarian decentralists: one on jury nullification (one important limit on state power), the other on State nullification of federal law (another important vertical limit on central US fedgov state power; one that libertarian centralists seem not to be that interested in).²

The episode’s title plays on the old line that a prosecutor can get a grand jury to indict a ham sandwich—because it’s easier than convicting someone, which has various procedural hurdles and a high standard of proof and (petit) jury unanimity, unlike that for an indictment (probable cause; unanimity not required: and so on). But in the case at issue, a DC grand jury recently refused to indict former White House staffer Cassidy Hutchinson, whom the Justice Department wanted to charge with lying to Congress about January 6. As Amar put it, the grand jury “rose up on their hind legs” and said no—whether because the prosecutor hadn’t made out a case, or because, even if he technically had, the prosecution was seen by the grand jury as “just not fair.”

The particular details of this case don’t matter much to us (who cares if the evil state goes after one of its own former agents), but some of Amar’s arguments dovetail nicely with things I and other libertarians have been advocating for decades. (I noted them briefly in Structural Safeguards to Limit Legislation and State Power.)

First, Amar has a nuanced, historically informed understanding of jury nullification—or as he prefers, “acquittal against the evidence”—and a good criticism of Jonathan Turley’s recent attack on it (not the one who masturbated on a live zoom call during Covid; the other one).³ Second, his decades-old idea of “converse-1983” laws—state laws giving people a damages remedy against federal officials who violate their constitutional rights—has suddenly been enacted in California and several other states.

Now a normal “1983 action,” discussed further below, is a suit under 42 U.S.C. § 1983 (text), originally § 1 of the Civil Rights Act of 1871 (the “Ku Klux Klan Act,” Wikipedia). It lets people sue state and local officials, such as police officers, for damages when they violate federal constitutional rights.⁴ A converse-1983 law runs the other way: a state statute letting people sue federal officials.⁵ This idea supports, and is supported by, other libertarian ideas such as state nullification (Tom Woods et al.), and it complements some ideas I’ve floated in the past for limiting the federal government via vertical separation of powers and federalism.

1. Amar on Jury Nullification, and Turley

By coincidence, the Hutchinson grand jury news broke right after Jonathan Turley (Shapiro Professor of Public Interest Law at George Washington University Law School and a Fox News legal analyst; an idiosyncratic civil libertarian who once called himself a liberal but has lately more often sided with conservatives)⁶ published a column attacking jury nullification.⁷

Turley’s targets are activist groups like Free DC and Harriet’s Wildest Dreams, whose juror trainings reportedly tell prospective jurors they have a “superpower”: the power to nullify. He also singles out Qiana Johnson, the newly elected clerk of the Prince George’s County, Maryland, Circuit Court, who was reportedly a board member of Harriet’s Wildest Dreams. The House Oversight Committee has now opened an investigation into the trainings.⁸ Turley calls nullification a “previously odious practice, now being portrayed as a noble cause,” and says the juror’s real superpower is “the power of doing simple justice in a nation committed to the rule of law.”

Amar’s response: Turley “got his history wrong.” The power of a jury to acquit against the evidence, “for any reason that seems good and proper to them,” is not some new leftist gimmick; it is baked into the Anglo-American tradition and the Founders’ design. He runs through the standard landmarks:

Bushel’s Case (1670): after a London jury refused to convict William Penn, the jurors were themselves punished, then freed on habeas corpus. The case stands for the proposition that jurors may acquit for any reason and cannot be punished for it.⁹
Zenger’s case (1735): John Peter Zenger was plainly guilty of seditious libel under the law as the judge stated it, since truth was no defense and the only question was whether he published; the jury acquitted anyway.¹⁰
Paxton’s case and Thomas Hutchinson: in colonial Boston, grand juries refused to indict critics of the thin-skinned future Loyalist Thomas Hutchinson, so the Crown did an end run via prosecution by “information”—and trial juries then refused to convict. (Amar pointedly notes the Hutchinson–Hutchinson parallel and wonders whether the Justice Department will try a similar end run by shopping for a grand jury elsewhere.)¹¹
The impeachment of Justice Samuel Chase (1804): one of the charges was that Chase refused to let defense counsel argue to juries—in the Callender sedition trial and the Fries treason trial—that they could judge the law. A majority of the Senate voted to convict, though short of two-thirds.¹²

He also quotes Federalist No. 83, where Hamilton notes that the friends and adversaries of the Constitution agree on nothing so much as the value of jury trial—“a valuable safeguard to liberty” to the one side, “the very palladium of free government” to the other—and adds that juries are a security against corruption, since “there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion.”¹³ As Amar puts it, jurors “come out of the woodwork, and they dissolve back into the woodwork”; the president doesn’t pick them, pay them, or fire them.

And he points out that, even today, despite judges’ hostility, four doctrines remain as the “residue” of the jury’s right to acquit against the evidence:

A judge may direct a verdict of not guilty, but never of guilty.
An acquittal can never be set aside (double jeopardy), whereas a conviction can.
Inconsistent verdicts—say, guilty of arson but not of the murder committed by the same act—are allowed to stand, on the theory that the jury may simply have been merciful.
There is no summary judgment for the prosecution in criminal cases.

These and other hurdles, such as the exclusionary rule,¹⁴ statutes of limitation, high standard of proof (beyond a reasonable doubt), and so on—rightly make it difficult for the state to convict even actually guilty defendants. This is one reason it is said, better that 100 guilty men go free than one innocent man be wrongfully punished. (This is one reason why in a free society restitution is likely to be the mode of justice.)¹⁵

In any case, modern judges who grouse about nullification still grudgingly admit juries have the power to do it while denying they have the right—and they still forbid defense lawyers from telling jurors about it. In fact, “nullification” is a relatively recent, loaded label for what earlier courts openly called the jury’s conscience-based power to pass on the law. The federal courts’ turn against it was cemented in Sparf v. United States, 156 U.S. 51 (1895).¹⁶

Jury Nullification as a Structural Safeguard

I’ve advocated jury nullification—along with an absolute right to jury trial in all cases, civil or criminal—for years, as one of several structural safeguards against the state’s power to legislate. In “Legislation and the Discovery of Law in a Free Society,”¹⁷ I wrote:

Another useful prophylactic measure would be an absolute right to jury trials in all cases, civil or criminal (so that government could not escape the jury requirement by calling truly criminal sanctions “civil”), in which the application of a statute is involved. This should be combined with a requirement that the jury be made aware of their right to judge the law’s validity as well as the defendant’s liability or guilt.

In the accompanying note I cited the Fully-Informed Jury Amendment (FIJA) and FIJA co-founder Don Doig’s pamphlet, “New Hope for Freedom: Fully Informed Juries.”¹⁸

I’ve repeated the recommendation many times since:

In my 1998 Austrian Scholars Conference talk I listed “Jury trial and double jeopardy renewed: Fully-informed jury amendment (FIJA)” among the “new structures” that could limit state power¹⁹
In an old LewRockwell.com blog post on the Finnish constitution, I listed jury nullification alongside concurrent review, enumerated powers, sunset laws, supermajority requirements, and the right to secede²⁰
In my talks on state constitutions versus a libertarian private law code, both jury trial in all cases and jury nullification (FIJA) were on my wish list²¹
And in my semi-serious list of “easy ways to fix” the US, jury nullification made the second tier, next to letting states overrule federal law and Supreme Court decisions (“How to Fix the US,” StephanKinsella.com (Oct. 30, 2024)

Why? Because the core problem with the modern state is not just that it has bad laws; it’s that it has a legislature, a tap that can be turned on at any time to issue new commands.²² A fully informed jury is one of the few remaining points in the system where ordinary people, not officials, get a veto over applying legislation to a particular person. It’s decentralized, case by case, and can’t be lobbied in advance. That’s closer to the decentralized, law-finding model I favor than almost anything else in the modern legal system.

Note also that nullification is asymmetric. A criminal jury can nullify only in the defendant’s favor; it can’t convict against the evidence and make it stick. So the danger is the Emmett Till problem: failing to punish a real aggressor. That is a real cost, but it’s the same cost we accept with every other procedural protection that lets some guilty people go free (reasonable doubt, double jeopardy). And in the typical modern case where nullification matters—drug possession, gun-registration offenses, tax and regulatory “crimes”—the jury stands between a peaceful person and the state, not between an aggressor and his victim. (Michael Huemer makes a similar point: nullification to help a racist get away with a hate crime is wrong, but it doesn’t follow that nullification to keep someone who has done nothing wrong out of prison is wrong.²³

The other thing to notice about Turley’s complaint is its selectivity. For decades nullification has been championed mainly by libertarians and drug-war opponents; the Fully Informed Jury Association was formed in 1989 by Larry Dodge, a former Montana Libertarian Party chair, and Don Doig, after discussions at that year’s Libertarian Party convention.²⁴ FIJA activists have been harassed, even prosecuted, for handing out pamphlets near courthouses.²⁵ Now that some progressive activists have discovered it, suddenly it’s “weaponization.” But the principle doesn’t change depending on whose ox is gored. As Reginald Godwyn recently noted in the British context, the system acknowledges this power while doing almost everything it can to make sure jurors never consciously realize they have it.²⁶

Departmentalism = concurrent review

Interestingly, Amar called his view “departmentalism”: “the idea that you shouldn’t put all your eggs in any given basket.” But all this means is that there are various structural limits on power; it’s divided. Congress is bicameral; but so, he says, is the federal executive in the criminal context (president and grand jury), and so is the judiciary (judge and jury). “Any one of them can stand up for liberty and thwart some of the others.” If the House thinks a sedition bill is unconstitutional, it doesn’t vote for it. If the president thinks so, he doesn’t prosecute, or he pardons. “A judge can let you off. It’s called judicial review, but so can a jury. It’s called acquittal against the evidence.”

This is essentially the Jeffersonian theory of concurrent review I’ve long defended against judicial supremacy, the idea that nine lawyers in DC are the sole and final arbiters of constitutionality. Under concurrent review, each branch has an equal and independent duty to refuse to enact or enforce what it believes is unconstitutional.²⁷ Amar adds the jury and grand jury to the list of “departments,” which is exactly right: they are veto points staffed by people who don’t answer to the central state. And, as Amar notes, they deter even when they’re not used: the reason federal grand juries indict nearly every ham sandwich may be that prosecutors, anticipating a refusal, don’t bring the weaker cases in the first place.

2. Converse-1983: States Policing Federal Officials

Amar’s second point ties juries to federalism. People used to make fun of him, he says, not only for taking grand juries seriously but for worrying about abuse by the federal government. Many of his colleagues, shaped by the civil rights era, instinctively assume “the federal government is good” and “states are bad.” But juries, he argues, are “part of the same worldview” as his old proposal for converse-1983 laws: “I want the federal government [to] keep an eye on states when they’re depriving people of voting rights, and the like.… I want states to push back when the federal government threatens our liberty. That’s Converse 1983.”

Some background. Under 42 U.S.C. § 1983, a Reconstruction-era statute, anyone acting “under color of” state law who deprives a person of federal constitutional rights can be sued for damages. It’s the main vehicle for suing state and local cops, prison guards, and the like (hobbled, of course, by the judge-made doctrine of “qualified immunity”). There is no comparable statute for federal officials. Instead, in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court implied a damages remedy directly from the Fourth Amendment against federal narcotics agents. But the Court has spent decades strangling its own creation, calling further extensions of Bivens a “disfavored judicial activity” in Ziglar v. Abbasi, 582 U.S. 120 (2017), and all but closing the door in Egbert v. Boule, 596 U.S. 482 (2022). Upshot: if a federal agent violates your constitutional rights, you very often have no damages remedy at all. And as international law scholar (and later President of the International Court of Justice) Rosalyn Higgins observes, a right without a remedy is hollow indeed.²⁸

Amar’s solution, first proposed in “Of Sovereignty and Federalism,” Yale L.J. 96 (1987): 1425, is for the states to fill the gap: enact a “converse-1983,” a state-law cause of action for damages against anyone—including federal officers—who violates the federal Constitution within the state.²⁹ The historical argument is that this is no radical innovation but a return to the early republic, when federal officers who overstepped could be sued in ordinary state-court trespass actions, before ordinary juries, and had to justify their conduct by pointing to valid federal law. If the federal law was unconstitutional, they had no defense. State law and state juries were part of the original machinery for keeping federal officials within their enumerated powers.

It’s damages, not injunctions, for a reason. As Amar notes in the episode, it’s not clear under long-standing Supreme Court precedent that state courts can enjoin federal officials (cf. McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821); Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872)). But a damages action after the fact is a different matter. And conveniently, Congress itself left the door open: the Westfall Act, which otherwise substitutes the United States as defendant in state-law tort suits against federal employees, expressly does not apply to an action “brought for a violation of the Constitution of the United States” (28 U.S.C. § 2679(b)(2)(A)).

What was a law-professor’s hobbyhorse for decades is now law. California’s SB 747, the “No Kings Act” (signed Sept. 29, 2026; codified at Cal. Civ. Code § 53.8), creates a damages action against any natural person acting under color of federal, state, or local law who deprives someone of rights secured by the U.S. Constitution. It applies retroactively to March 1, 2025, with limits on monetary damages for the retroactive period. Connecticut, Maryland, Rhode Island, Vermont, and New York have enacted versions too, some narrower. (See “Converse-1983,” Wikipedia.) Amar and his brother Vik just spent a day on the subject at a UC Davis symposium, with papers forthcoming in the UC Davis Law Review.

The political impetus is obvious: blue-state resistance to various federal enforcement actions of the current administration. Fine. As with nullification, I don’t much care about the partisan motive of the moment. What matters is the structure: states asserting a role in policing the federal government’s agents within their borders. Red states can (and should) use the same tool against federal agents enforcing unconstitutional gun laws, drug laws, or regulatory edicts. Decentralization tools, once built, don’t stay in one party’s hands.

Converse-1983, State Nullification, and Vertical Separation of Powers

Converse-1983 is a cousin of state nullification: the Jeffersonian idea, revived in recent years by Tom Woods and others, that states may refuse to permit unconstitutional federal laws to be enforced within their borders.³⁰ Nullification says: this federal act is void here, and our officials won’t help enforce it. Converse-1983 is a softer, more lawyerly version: we won’t stop you from enforcing it, but if your agent violates the Constitution in doing so, he’ll answer for it in our courts, under our law, before our juries. Call it interposition lite. But the premise is the same: the states are not mere administrative subdivisions of DC; they have an independent role in keeping the feds within their constitutional limits.

This is the kind of vertical separation of powers I’ve long argued matters more than the familiar horizontal separation among the three federal branches. Horizontal checks are weak because all three branches are parts of the same federal state and share an interest in its growth; judicial supremacy makes them weaker still.³¹ Real checks come from a different level of government—and ultimately, from the ability to exit. As I put it in “Concurrent Review and Judicial Supremacy,” in addition to concurrent review among the federal branches, “under federalist principles there is also vertical separation of powers in which the States also have a constitutional right to refuse to permit unconstitutional federal laws to be enforced in their territory (nullification), and/or to secede.”

In my 2009 counterproposal to Randy Barnett’s proposed “Federalism Amendment,” for example, along with an express right of secession and repeal of the Sixteenth and Seventeenth Amendments, I proposed several provisions giving states direct checks on federal power:³²

Nullification by the states. A national majority of states could negate any federal court decision, statute, regulation, treaty, or executive order, and remove federal officeholders. This builds on Marshall DeRosa’s proposal to let a national majority of state chief judicial officers overturn Supreme Court decisions³³
State pardon power. A governor could pardon anyone convicted of a federal crime who is imprisoned in, resides in, or committed the acts in his state.
Posse comitatus with teeth. No armed federal agent or military installation could be present in a state without the governor’s written permission.

In the 2010 follow-up I added that “a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction (on this, of course, see Tom Woods’s Nullification).” And in a comment there I noted that “one advantage of nullification is that it can be done NOW by one state standing up to the feds. They don’t need to wait for such an amendment.”

Converse-1983 fits right into this family. Like the state pardon and posse comitatus provisions, it treats the state as a shield between its residents and federal agents. And like nullification, it requires no constitutional amendment: a single state can do it now, by ordinary legislation. California just did.

Notice, too, how the two halves of Amar’s episode connect. A converse-1983 suit is a civil action in state court—typically tried to a jury of local citizens deciding whether the federal agent acted lawfully. So converse-1983 marries vertical federalism to the jury check: the people of the community, not federal judges appointed by the very government whose agents are on trial, judge the federal officer. This is also why my old proposal for jury trial in all cases, civil as well as criminal, matters. The jury is not only a shield for defendants against state prosecutors; it can also be a sword for victims against state agents.

Caveats

A few caveats.

First, the new statutes are hobbled in ways familiar to anyone who follows § 1983 litigation. California’s No Kings Act preserves the same absolute- and qualified-immunity defenses available under § 1983. Since qualified immunity is itself a judge-made invention to shield state agents from liability, importing it into converse-1983 blunts much of the point. A serious converse-1983 law would abolish these defenses, at least for clear violations.

Second, expect the feds to fight these laws tooth and nail—Supremacy Clause, intergovernmental immunity, removal of the suits to federal court under the federal-officer removal statute (28 U.S.C. § 1442). The same federal courts that gutted Bivens will be asked whether states may supply what the federal courts withdrew. Given judicial supremacy, I’m not holding my breath. But even if the feds win, the attempt is valuable: it makes clear that states regard themselves as having an independent role in policing federal power, and it forces the federal government to argue openly that its agents should be immune from any remedy for violating the Constitution.

Third, a word for my fellow anarchists. I don’t think constitutions or state legislatures will save us. Constitutions are paper limits, interpreted and enforced by the very state they are supposed to limit. As I wrote in the Barnett post, “I think the Constitution is a hopeless sham, and that it’s not possible to have a successful amendment process.” And talk of “states’ rights” doesn’t mean states have rights or are legitimate; it is shorthand for the limited, enumerated-powers nature of the federal government vis-à-vis the states. But anything that decentralizes power, multiplies veto points, and makes the central state’s agents personally accountable is a step in the right direction, and certainly better than useless pseudo-reforms like term limits.³⁴

Conclusion

So kudos to Amar. He’s no libertarian, and his Reconstruction nationalism is not mine. But on these two points he’s right, and he’s making arguments libertarians have been making for decades, with mainstream credentials and a lot of history behind them. First, the jury’s power to acquit against the evidence is part of the original design, not some leftist (or kooky libertarian) “weaponization.” Second, states can and should provide remedies against lawless federal agents. Both are of a piece with concurrent review, nullification, and the other structural safeguards I’ve been pushing since the mid-1990s. Libertarians should take note, and use them.

And if you’re ever called for jury duty: know your rights. You may be the last line of defense.

N.b.: I have used AI in the past (mostly Grok) to summarize and other mechanical tasks, but am reluctant to use it for writing. Finding newer emerging capabilities in Claude, I used it to help with finding and citing references and writing a first draft. I rewrote it all so it did not save time really but it did result in a more detailed post that would have taken more time had I done it without AI help. Interesting. [↩]
On libertarian centralists, see Stephan Kinsella, “Libertarian Centralists,” StephanKinsella.com (Sept. 17, 2009); idem, “The Libertarian Case Against the Fourteenth Amendment,” StephanKinsella.com (Nov. 30, 2009); idem, “Healy on States’ Rights and Libertarian Centralists; Healy versus Bolick and the Institute for Justice,” StephanKinsella.com (Dec. 1, 2009); idem, “Michael Boldin on Randy Barnett and Federalism,” StephanKinsella.com (Dec. 17, 2009); and other posts tagged libertarian centralists. [↩]
See “Jeffrey Toobin fired from New Yorker after 27 years following Zoom incident,” NBC News (Nov. 11, 2020). [↩]
See “What Is a Section 1983 Lawsuit Against the Police?,” Nolo. [↩]
See “Converse-1983,” Wikipedia. [↩]
“Jonathan Turley,” Wikipedia; his GW Law faculty page. [↩]
“‘You Have This Superpower’: How the Left Is Weaponizing Jury Nullification” (The Hill, Oct. 24, 2026; also posted as “‘You Have This Superpower’: Jury Nullification Becomes the Latest Attack on the American Court System,” jonathanturley.org, Oct. 26, 2026). [↩]
The training materials were reported in “Are these groups training jurors to acquit on purpose? A House committee wants answers,” Washington Times (Oct. 13, 2026); see also “From a thrown sandwich to a House probe: D.C. groups accused of coaching jurors to acquit,” Washington Times (Oct. 14, 2026). On the House Oversight investigation, see “Rep. James Comer accuses D.C. activist groups of trying to taint juries,” Washington Post (Oct. 13, 2026). On Johnson’s election as clerk, see The Baltimore Banner; WUSA9, House Oversight chairman investigates DC activist groups’ jury nullification program; Washington Examiner, Inside the leftist network working to sabotage Trump’s DC prosecutions. [↩]
See “Bushel’s Case,” Wikipedia; “On this day in 1670: a trial gets underway,” OUPblog (Sept. 2016); and “The Trial of William Penn: The Verdict That Freed the Jury,” Cato at Liberty (Sept. 5, 2025). [↩]
See “Crown v. John Peter Zenger, 1735,” Historical Society of the New York Courts; “The Trial of John Peter Zenger,” National Park Service; and “John Peter Zenger,” Free Speech Center (Middle Tennessee State University). [↩]
On Paxton’s case (the 1761 writs of assistance case, argued by James Otis before Chief Justice Hutchinson), see “Writ of assistance,” Wikipedia; and “Then and There the Child Independence Was Born,” American Heritage. Amar tells the story of Hutchinson, the Boston grand juries, and prosecutions by information in The Words That Made Us: America’s Constitutional Conversation, 1760–1840 (Basic Books, 2021), ch. 1. [↩]
See “The Impeachment of Samuel Chase,” U.S. Senate; and “Impeachment of Samuel Chase,” Wikipedia. [↩]
Alexander Hamilton, “Federalist No. 83: The Judiciary Continued in Relation to Trial by Jury,” The Federalist Papers (1788), Avalon Project, Yale Law School; see also “Federalist No. 83,” Wikipedia. [↩]
I have argued that the exclusionary rule is not required by the Constitution, should be abolished, and should not be imposed on the states by the federal courts; victims of illegal searches should be compensated by the officers who conduct them. However, for the time being I do not mind that it makes it harder for the corrupt FedGov and States to convict. See Patrick Tinsley, Stephan Kinsella & Walter Block, “In Defense of Evidence and Against the Exclusionary Rule: A Libertarian Approach,” Southern U. L. Rev. 32, no. 1 (2004): 63–80; Stephan Kinsella & Patrick Tinsley, “In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism,” LewRockwell.com (Nov. 1, 2003); Kinsella, “On the Fourth Amendment, the Exclusionary Rule, and Larry Pratt,” StephanKinsella.com (Sept. 10, 2009); and “A Libertarian Theory of Punishment and Rights,” in Legal Foundations of a Free Society (Houston: Papinian Press, 2023), ch. 5, p. 82 n.42 (an illegally searched but guilty defendant is estopped from complaining, though third parties might defend the rule as a prophylactic against the dangerous state). [↩]
See Stephan Kinsella, “Fraud, Restitution, and Retaliation: The Libertarian Approach,” StephanKinsella.com (Feb. 3, 2009); idem, “Perfect Restitution is Impossible; An Unreachable Goal,” StephanKinsella.com (June 2025); and Legal Foundations of a Free Society (Houston: Papinian Press, 2023), ch. 5, “A Libertarian Theory of Punishment and Rights,” Part IV.B and pp. 108–09 & nn.84–85 (the victim’s right to choose punishment or restitution, and the practical problems with an institutionalized retributive system), and ch. 10, “Inalienability and Punishment: A Reply to George Smith,” pp. 250–51 & n.33 (“I nonetheless sympathize with the idea of a restitution-based system being preferable and even likely in any free society,” partly because of “the unavoidable possibility of mistakenly punishing the innocent”). [↩]
See Sparf and Hansen v. United States, 156 U.S. 51 (1895) (Justia), including Justice Gray’s long dissent defending the jury’s historic right to decide the law; and “Sparf v. United States” and “Jury nullification in the United States,” Wikipedia. On the history of jury nullification, see further discussion below; and Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Cato Institute, 2014; orig. 1998); and Note, “The Semantics of Jury Nullification: How Terminology Shapes (and Misshapes) the Jury’s Role,” Harv. L. Rev. 139 (2026): 964. [↩]
Kinsella, “Legislation and the Discovery of Law in a Free Society,” J. Libertarian Stud. 11, no. 2 (Summer 1995) (LFFS, ch. 13, at 340–41). [↩]
See also the Fully Informed Jury Association website (archived Mar. 15, 2013); Comment, “The Changing Role of the Jury in the Nineteenth Century,” Yale L.J. 74 (1964): 170–92; and Lysander Spooner, “An Essay on the Trial by Jury,” in The Lysander Spooner Reader (San Francisco: Fox & Wilkes, 1992), at 122. [↩]
“Constitutional Structures in Defense of Freedom (ASC 1998),” StephanKinsella.com (June 25, 2021). [↩]
reprinted in “Structural Safeguards to Limit Legislation and State Power,” StephanKinsella.com (Jan. 23, 2015). [↩]
“KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021),” Kinsella on Liberty Podcast; “PFP231 | Stephan Kinsella, State Constitutions vs. the Libertarian Private Law Code (PFS 2021),” Property and Freedom Podcast (May 15, 2023). [↩]
See Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston: Papinian Press, 2023), ch. 13, esp. Part III.C.3, “Special Interests and the Unrepresentative Character of Legislation,” and p. 300 n.22 (“There is no guarantee, or even likelihood, that laws enacted by a majority or their elected representatives will tend to be just”) and p. 324 n.86, citing Hans-Hermann Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy” and “On Free Immigration and Forced Integration,” in Democracy: The God That Failed (New Brunswick, N.J.: Transaction, 2001). See also “Legislation, Predictability, and the Rule of Law: A Romanian Discussion of LFFS Ch. 13,” StephanKinsella.com (Oct. 26, 2026). [↩]
Michael Huemer, “A Defense of Jury Nullification,” Fake Nous, based on his chapter in The Palgrave Handbook of Philosophy and Public Policy, ed. David Boonin (Palgrave Macmillan, 2018), 39–50. [↩]
See “Fully Informed Jury Association,” Wikipedia. [↩]
E.g., “Jurors Convict Man for Telling Jurors About Jury Nullification,” Reason (June 2, 2017. [↩]
Reginald Godwyn, “The Jury’s Ancient Power: Why Every Englishman Should Know About Jury Nullification,” Libertarian Alliance (UK) (July 29, 2026). [↩]
See Stephan Kinsella, “Concurrent Review and Judicial Supremacy,” StephanKinsella.com (March 14, 2025); idem, “Judicial Activism and the Presumption of Unconstitutionality (draft, 2005)”; LFFS, ch. 21; David N. Mayer, The Constitutional Thought of Thomas Jefferson (University Press of Virginia, 1994), 131, 259, 263, 269–72; William J. Quirk & R. Randall Bridwell, Judicial Dictatorship (Transaction, 1995), xiv, 10–11, 13. I highly recommend the Quirk and Bridwell book. [↩]
Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), p. 16 n.42, 53, 99, as discussed in my “Review of Higgins, Problems and Process: International Law and How We Use It,” StephanKinsella.com (Aug. 6, 2025), originally published in Reason Papers No. 20 (Fall 1995): 147–53. The update to that post notes that Bivens itself invoked the principle that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief” (Bivens, 403 U.S. at 392, quoting Bell v. Hood, 327 U.S. 678, 684 (1946)), echoing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803): “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” On the related problem in international law, where an “illegal” expropriation has little or no practical consequence because there is no additional remedy for it, see Kinsella, “Expropriation, Inalienability, and International Law: The Illusory Requirements of Nondiscrimination and Public Purpose,” StephanKinsella.com (Oct. 2012); Noah Rubins, Azadeh Papanastasiou & N. Stephan Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2d ed. (Oxford University Press, 2020), ch. 5.B.2.c, ¶¶ 5.87, 5.90; and Kinsella, “Adjudicating over Anarchy: Judicial Remedies, Compliance, and Enforcement in International Law,” StephanKinsella.com (Oct. 22, 2026). [↩]
He developed the idea in “Five Views of Federalism: ‘Converse-1983’ in Context,” Vand. L. Rev. 45 (1992): 1229, and “Using State Law to Protect Federal Constitutional Rights: Some Questions and Answers About Converse-1983,” U. Colo. L. Rev. 64 (1993): 159, and recently revisited it in “Converse-1983 at the Forty-Year Mark” (2026). [↩]
Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the 21st Century (Regnery, 2010); see also Jefferson’s Kentucky Resolutions and Madison’s Virginia Resolutions of 1798; and James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (1957). [↩]
See my “Federal Judges Aren’t Real Judges,” StephanKinsella.com (Aug. 2023). [↩]
Stephan Kinsella, “Randy Barnett’s ‘Federalism Amendment’–A Counterproposal,” Mises Blog (April 26, 2009), collected in “Randy Barnett’s ‘Federalism Amendment’–A Counterproposal; and related posts,” StephanKinsella.com (Dec. 3, 2010). [↩]
Marshall L. DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence (New Brunswick, N.J.: Transaction, 1996), 192; discussed in LFFS, ch. 21). [↩]
See also “Libertarian Nation and Related Projects,” StephanKinsella.com (Sept. 2025); and Michael Huemer, “Can Constitutions Limit Government?,” Fake Nous. [↩]