I'm saying (not trying) that as a member of the jury I WOULD have the power to enforce my common sense by my power as a jury member. voting my views regardless of any judge's instructions, as the constitution intended.
You might be saying that, but what you are saying isn't true.
You have no power to enforce your views, because you have no power to require that the other jurors adopt, or acquiesce to, your views. You only have the power to state, argue, and vote your views. Each other person on the jury has the same powers.
So if you vote to acquit the defendant, and not all of the other jurors agree, the result will be a hung jury and a mistrial. A mistrial allows the prosecution to retry the defendant with a different jury.
As for your opinion about what the Constitution intended, no one cares.
The Founding Fathers assigned the job of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...
The exercise of
judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.
What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry.
Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came
Marbury v. Madison decided in 1803; and
McCulloch v. Maryland was decided 10 years later, in 1813.
So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.....
