America's Unwritten Constitution: The Precedents and Principles We Live By (68 page)

Sometimes parties need to stand wholly outside government with clear rights against the formal legal order. (Think of the First Amendment.) Other times, a government works so closely with a party that it may be hard to determine where one ends and the other begins. (Think of certain kinds of primary elections covered by the five citizen-right-to-vote amendments.) In still other ways, parties operate as unique intermediary institutions, formally operating outside government even as the law specially facilitates or specially restrains partisanship within government. (Think of the Twelfth and Twenty-fifth Amendments, or the string of independent agencies with party-membership rules.)

Given all these complications and complexities, the absence of a more comprehensive constitutional grid regulating American political parties is not some horrible and incurable eighteenth-century goof, but the considered choice of many generations of Americans ever since Jefferson’s ascension—and a sensible choice at that.

_____________________

^*
Nothing in the amendment explicitly endorsed or authorized poll-tax-related disfranchisement in nonfederal elections. Instead, the amendment left these elections to be addressed by state and federal statutes and by earlier federal constitutional provisions, including the republican-government clause and the Reconstruction Amendments. In mid-1965, a year and a half after the ratification of the Twenty-fourth Amendment, Congress passed a sweeping Voting Rights Act that invited the judiciary to invalidate all poll-tax-related disfranchisements. In 1966, the Warren Court, in
Harper v. Virginia
, accepted that invitation, striking down state poll-tax disfranchisements as violative of the Fourteenth Amendment. The 1965 act and the 1966 case are discussed in more detail in Chapter 4, text accompanying nn. 55–62.

^*
Nor is this the only aspect of section 2 that needs to be reread through the prism of later amendments. Section 2 explicitly penalizes states only when they disfranchise
males
. Surely this pointed and purposeful exclusion of females from the scope of protection cannot survive the subsequent adoption of the Woman Suffrage Amendment, ratified in 1920—an amendment explicitly prohibiting the federal government from discriminating on the basis of sex in the domain of voting rights. After 1920, any literalistic federal enforcement of section 2—protecting the right of males to vote more vigorously than the right of females to vote—would itself violate the letter and spirit of the Suffrage Amendment. Similarly, section 2’s age limit of “twenty one years” was silently repealed by the Twenty-sixth Amendment, ratified in 1971, which in effect (albeit not expressly) substituted the new age limit of eighteen years into the penalty clause of section 2. For more analysis, see n. 14.

^*
Consider a simple example from the presidential contest of 2000: Any ultraliberal voter who cast his ballot for his first-choice candidate, Ralph Nader, instead of his second choice, Al Gore, thereby increased the odds that his least favorite candidate, George W. Bush, would prevail. Symmetrically, any ultraconservative voter who cast his vote for his first choice, Pat Buchanan, instead of his second choice, Bush, thereby increased the odds that his least favorite candidate, Gore, would win. Similar dynamics operate in any single-member-district House election.

^*
In this book’s final chapter, I shall try to imagine the virtually unimaginable by sketching one theoretical scenario in which incumbent members of Congress might see fit to change the existing two-party duopoly.

WILLIAM BRENNAN
(left)
AND THURGOOD MARSHALL
(right)
(1976).

Beginning in the 1970s, Justices Brennan and Marshall refused to support any death sentence, state or federal, that came before them.

E
NACTED AND AMENDED AT EPIC
moments by a collective people noisily politicking on a grand public stage, the Constitution in the interim has often unfolded through the actions of individuals and institutions in smaller and quieter settings. While the presidency is the Constitution’s most personal office—with one individual sitting atop an entire branch—Congress members, judges, and jurors are persons, too. How does the Constitution enlist the consciences of all these individuals? Once enlisted, how is conscience to be constrained? How should a conscientious person act when his conscience and the statute books tug in opposite directions?

Over the centuries, these questions have had special urgency for jurors when they have been confronted with a criminal defendant who is clearly guilty, but who faces a punishment that seems unconscionably savage. The written Constitution does not explicitly specify the proper role of juror conscience in such situations. Nevertheless, the document is best read as presupposing an unwritten right of jurors in certain situations to show mercy by acquitting the defendant and thereby “nullifying” an unduly harsh criminal statute. Alas, this deeply rooted right of juror conscience has not been properly nourished and pruned in modern courtrooms. Current doctrines of jury composition and jury control must thus be tweaked to both facilitate and discipline the exercise of conscience in the jury box.

As for judges and other public servants who find certain penal policies unconscionably harsh, here, too, there is a proper place for
conscience
—a concept that forms part of the necessary, albeit unwritten, substratum of American constitutionalism.

THE SUCCESS OF
our national constitutional project requires that certain things must always exist, and exist in abundance, in America.
Virtue, honor
, and
conscience
rank high among these essential elements.

In every generation, vast numbers of ordinary citizens must willingly
keep the constitutional machinery running—by voting on Election Day, by serving on juries when summoned, by doing their best to obey the law (and to pay their taxes) in ordinary circumstances, and by defending the Constitution, by force of arms, if need be. Also, a significant slice of America’s most able and admirable citizens must willingly serve in government if called to do so by their peers. This willingness to serve the public good was a key component of what the Founding generation referred to as “virtue.”

Writing as “Publius”—the “public man”—in
The Federalist
No. 55, James Madison observed that although “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.” According to Madison/Publius, “[r]epublican government presupposes the existence of these qualities in a higher degree than any other form” of government and necessarily presumes that “there is…sufficient virtue among men for self-government.”
¹

What sorts of men and women are needed as public servants to run the Constitution on a daily basis? Obviously, persons of discernment and ability, but also—crucially—persons of honor, rectitude, and conscience. Anyone who doubts the salience of honor in the Founding era need only recall the stirring words at the close of America’s other iconic parchment, adopted on July 4, 1776: “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

Though the word “conscience” did not appear on the surface of the text that emerged from Independence Hall eleven years later, three different passages of the original constitutional text obliged public servants to take special oaths; later, the Fourteenth Amendment contained an entire section addressing the issue of oaths. Thus, Article I mandated that whenever the Senate sat as an impeachment court, its individual members had to take an “oath or affirmation” to do proper justice as judges and jurors of the impeachment defendant.
^*
Even as Article II left many of the details
of executive power unspecified, it took pains to insist that a president’s first task—before performing any other official function—was to take an oath of office, an oath whose exact content Article II proceeded to prescribe verbatim. Article VI obliged every important state or federal official to take an oath to support the federal Constitution; and section 3 of the Fourteenth Amendment imposed special political disqualifications on officials who had not merely sided with the Confederacy, but in the process betrayed previously sworn oaths.

Oaths also figured prominently in the Fourth Amendment, which allowed search warrants to issue only when supported by an informant’s “oath or affirmation.” On June 1, 1789, the very first statute ever enacted by the very first Congress specified the text of the oath to be taken by various officials. In his two most celebrated opinions,
Marbury v. Madison
and
McCulloch v. Maryland
, Chief Justice John Marshall fittingly used the existence of these constitutional and statutory oaths to illustrate constitutional first principles. In
Marbury
, Marshall stressed the judicial oath; in
McCulloch
, he highlighted the power of Congress to add new oaths, even though such power was not expressly enumerated in the written Constitution.
²

ACCORDING TO THE SELF-REFERENTIAL LANGUAGE
of Article VI, key government officials would be “
bound by
Oath or Affirmation to support this Constitution” (emphasis added)—but what did the word “bound” mean here? Oaths do not bind in the same way that chains do. When Article IV referred to persons “held to Service or Labor,” this language did in fact refer to human beings—slaves—who were physically bound and literally held in bondage. But Article VI oaths bound persons via a very different mechanism.

Much of the force of an oath arises as a matter of internalization. An oath creates a felt duty of obedience and obligation that resides within the breast of the oath-taker. Thus, the Constitution envisioned that oaths would work largely because most Americans were virtuous and would struggle to keep their oaths as a matter of honor and conscience. For some oath-takers, religious beliefs would reinforce the sanctity and sacredness of a sworn oath; for others, religion would have nothing to do with it. The document aimed to accommodate conscientious persons of all stripes by allowing any public servant unwilling or unable to swear an oath to
instead commit himself to support the Constitution via an honor-based “affirmation.”

In some situations, may a man of honor and conscience break his solemn oath? In certain contexts, must he do so? These were not purely abstract questions in Independence Hall in the summer of 1776, as men who had previously pledged allegiance to the British Crown now publicly renounced their old vows in the very process of making new promises to stand together in opposing the tyrant King George. Concerns about oaths and their moral boundaries also animated discussions in that legendary hall during the summer of 1787. Knowing that an out-of-touch government that asked too much and gave too little might lose its just claims to the people’s allegiance, the Philadelphia framers aimed to build a new system that would tap into the deepest convictions of its citizens, a system in which honorable oath-takers would almost never have occasion to regret or renounce their vows. This new system strengthened itself not only by broadly enlisting public support via an extraordinary series of ratification elections in the late 1780s and routine elections thereafter, but also by requiring officials to bind themselves to the precise text that the people had endorsed. As we shall now see, the new system also built some bend into these bonds, enabling public officials and ordinary citizens in certain situations to follow their own consciences without thereby violating their legal oaths, rightly understood.

THE SYSTEM’S
SUPPLE STRUCTURE
was especially notable where jurors were concerned. The very word, “juror,” suggested the high stakes involved and hinted at the subtle tension between oaths and law. In one sense, a proper “juror”—from the French
jurer
and the Latin
jurare
, to swear—was a person who honored his sworn oath to return a true verdict. (The word “verdict” meant a speaking of the truth.) Thus, anyone who swore falsely, betrayed his oath, or returned a false verdict was a “perjurer,” with
per
referring to the Latin word for destruction. The word-stem
jur
also connoted law more generally, as reflected in, for example, the word “jurisprudence”—the study of law.

But if a criminal law enacted by men was profoundly unjust across the board, or if strict application of this law in a particular case would be profoundly unjust, would a juror who acted to indict or convict a defendant under that law be a false swearer to God or to some ultimate moral truth? In the converse situation, could a juror properly vote to indict or convict a man who had not violated the letter of any actual law on the books, but had indeed violated the true moral code as the juror understood that code?