Democracy and the Criminal: Jury Nullification as a Democratic Contribution to the Friend-Enemy Distinction.

Jury nullification, an important feature of US criminal law since before the founding, provides a democratic check on the application of law to particular cases, where "democratic" is understood in terms of a popular veto of the kind favored by Machiavelli in the Discourses on Livy. This check, while not guaranteed to lead to any particular political results, nevertheless is important for political and in particular democratic theorists because the American polity appears to decide about the Schmittian friend-enemy distinction on the basis of law: criminals are enemies, and the law-abiding citizenry are friends. Yet since the founding, the operation of jury nullification has been eroded, taking it off the table as a check on friend-enemy decisionism. This paper explores this historical development and analyzes it primarily in terms of the thought of Machiavelli and Schmitt, with particular attention to the consequences for democracy of centralizing the power to determine legal (and thus, in American terms, political) enemies in the hands of America's least democratically accountable actors. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]