Whether any law is unconstitutional as applied (i.e., arbitrary and unreasonable under the circumstances) is a question of fact for a jury.

Whether any law or regulation is unconstitutional as applied to particular circumstances is a question of fact for the trier of fact though the court can reverse a finding by a jury of constitutionality as applied if it believes the law is unconstitutional as applied.

The Fifth Amendment to the Constitution states that “No person shall … be deprived of life, liberty, or property, without due process of law ….” The Fourteenth Amendment to the Constitution states “nor shall any state deprive any person of life, liberty, or property, without due process of law ….” The term “due process” is defined by the courts to require fundamental fairness both in terms of the procedures utilized to take life, liberty, or property and the substance of the action, which is referred to as “substantive due process.” Thus, regardless of the procedures used to implement any kind of taking, government actions that are fundamentally unfair are also barred. County of Sacramento v. Lewis, 523 U.S. 833 (1998).  In the above case, the Supreme Court said:

Since the time of our early explanation of due process, we have understood the core of the concept to be protection against arbitrary action,....

The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Colombia v. Okely, 4 L. Ed. 559 (1819): "As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice."

We have emphasized time and again that “[t]he touchstone of due process is protection of the individual against arbitrary action of government,…."

It is elsewhere said that a law is unconstitutional as applied if, in its application to specific circumstances, the action is deemed arbitrary. Thus, the constitutionality of the particular action cannot be determined by simply reading a law but can only be determined by considering the manner in which the law is applied and administered to a particular individual.

Currently, whether a law is unconstitutional as applied, that is whether governmental action is arbitrary, capricious and unreasonable or violates fundamental fairness, is a question of law for the courts. We believe courts are no better suited to make this determination than a jury. We believe whether a government action is arbitrary and capricious should be decided by the jury in those cases where there is a jury. As added protection, we believe, if a jury should for some reason find that a given action was constitutional as applied, that the court should be able to reverse this finding based upon its view that the law was unconstitutional as applied. However, the court could never reverse a finding by the jury that the governmental action was unconstitutional as applied and determine it to be constitutional as applied.

We have to remember that one reason Hitler came to power was that he corrupted the judicial branch. Although we might think this a remote possibility here, it is nonetheless a possibility in any country and it seems to us a hallmark for the protection of freedom to let juries decide what is reasonable and unreasonable. In fact, we believe this amendment may be the most important of all amendments proposed.