Conscience, Oaths, and Checks on Law in the U.S. Government

This article explores the role of conscience in the American system of government, focusing on how human elements interact with the written Constitution. It delves into the significance of oaths, the structural design of the government to limit certain types of laws, and the unique protections afforded to criminal defendants under federal law.

The Unwritten Constitution and Human Conscience

The written Constitution, a mere text, requires implementation by human beings with minds, hearts, souls, and consciences. These "unwritten elements" significantly influence how the written text is interpreted and applied. For instance, George Washington's vision of the presidency shaped the nature of presidential power, effectively glossing Article Two of the Constitution. Similarly, federal judges, the Supreme Court, the House, the Senate, and administrative agencies all involve human judgment in implementing the textual project of the Constitution. Political parties also play a role in completing the "incomplete" written text.

The Significance of Oaths

The Constitution repeatedly emphasizes the importance of oaths. The presidential oath of office is specified word-for-word, requiring the president to "preserve, protect and defend the Constitution." Article Six, the Supremacy Clause, mandates that all federal and state officials swear allegiance to the Constitution. The very first bill enacted by the first Congress in 1789 specified the proper oath of office for various officials.

The concept of oaths was central to early legal cases like Marbury v. Madison and is reflected in the Fourth Amendment's requirement for warrants to be supported by sworn statements. The Fourteenth Amendment, enacted after the Civil War, even included special punishments for officials who had sworn oaths to the U.S. Constitution but then betrayed them by taking up arms against the federal system. This highlights the Constitution's sensitivity to the idea of enlisting human allegiance to the constitutional project.

However, the system also needs to allow for independent moral judgment. If the Constitution offered no room for individual conscience, morally serious individuals might be unwilling to participate. The goal is to have individuals committed to the constitutional project while also being morally serious.

Structural Design: Limiting Certain Laws

The American system of government, with its divided branches, is often explained as a mechanism to discourage laws in general, based on the idea that laws threaten liberty. However, this "standard libertarian story" is incomplete. While bicameralism (requiring both the House and Senate to pass a law) can lead to fewer laws, it can also result in "logrolling," where different branches agree to pass each other's preferred, potentially liberty-threatening, provisions. Furthermore, making it difficult to pass laws also makes it difficult to repeal them.

Instead, the system is designed to produce fewer laws of specific types:

1. Laws creating a standing army: Article One, Section 8 of the Constitution requires that every military appropriation for a standing army lapses every two years. This "sunset provision" reflects the framers' fear of standing armies as a distinctive threat to liberty. The House of Representatives can simply refuse to pass a military appropriations bill, effectively disbanding the army.

2. Arguably unconstitutional or unconscionable laws: The system is designed to prevent the implementation of laws that are perceived as unconstitutional or unconscionable by individuals who have sworn an oath to uphold the Constitution. This means that if a member of the House, Senate, the President, a judge, or a juror believes a proposed law is unconstitutional, they are obligated to say no, even if it means sacrificing other desired legislation.

   • Legislative Branch: If the House or Senate believes a law is unconstitutional, they must vote against it.
   • Executive Branch: The President can veto a bill deemed unconstitutional. Even if the veto is overridden, the President can refuse to prosecute under the law (prosecutorial discretion) or pardon those convicted, as Thomas Jefferson did with the Sedition Act.
   • Judicial Branch: Judges can set aside laws they sincerely believe to be unconstitutional.
   • Juries: Jurors can acquit defendants even if the evidence suggests guilt, a practice known as "jury nullification," if they believe the law itself is unjust or unconstitutional.

Special Protections for Criminal Defendants

The American system is particularly protective of criminal defendants, creating multiple checks against laws in the criminal justice domain. This is because criminal law can threaten bodily liberty, life, and property.

Federal Criminal Law vs. Other Legal Domains

Federal criminal law has unique safeguards compared to federal civil law and state criminal law:

• Legislative Requirement: Both the House and the Senate must vote for a federal criminal statute. Unlike civil law, where judges can sometimes create liability (federal common law), federal courts cannot create federal criminal liability.
• Presidential Power: The President has significant power to block federal criminal laws. Beyond the veto, the President can exercise prosecutorial discretion (refusing to prosecute) and the power to pardon. These powers are not as robust in the civil domain, where private enforcement of laws can occur even if the President disapproves.
• Judicial Review: Judges can set aside federal criminal laws they deem unconstitutional.
• Jury Trial: In federal criminal cases, a defendant has an absolute right to a jury trial. This is not always true in civil cases, where administrative agencies or judges sitting alone (in equity) can sometimes decide cases without a jury.
• Grand Jury: The Fifth Amendment requires a grand jury indictment for serious federal offenses. A grand jury can refuse to indict, effectively preventing a prosecution. This "grand jury shield" has no counterpart in civil law or in many state criminal systems.

Six Unique Checks in Federal Criminal Law

In summary, federal criminal law features six distinct checks against potentially unfair or unjust laws:

1. House of Representatives: Can prevent a law from being enacted.
2. Senate: Can prevent a law from being enacted.
3. President: Can veto, refuse to prosecute, or pardon.
4. Grand Jury: Can refuse to indict.
5. Trial Judge: Can set aside a law.
6. Trial Jury (Petit Jury): Can acquit a defendant (jury nullification) if they believe the law is unjust or unconscionable.

These checks highlight a system designed not for fewer laws in general, but for fewer laws that threaten liberty in specific ways, particularly in the context of criminal justice. The role of jurors, in particular, is crucial in this system of checks and balances, allowing them to act as a final safeguard against unjust application of the law.