Welcome back, we're getting close to the end of this online course, we're talking, we're going to talk today and in the companion lecture on the next to last chapter, the penultimate chapter of this, book, America's Unwritten Constitution. It's a chapter all about the role that conscience plays in our system of government. We'll focus in particular on the role of conscientious jurors in our system and also the role of judicial conscience. The written constitution it's a text and its doesn't implement itself. It has to be implemented by actual human beings who have minds and hearts,and souls and consciouses and those, human elements, those unwritten elements, interact with the written text in distinctive ways. We've talked in previous sessions about, the, the, the human being named George Washington who had a certain vision of the Constitution in general and the presidency in particular, and how that vision has helped define the nature of presidential power in America. That has, that unwritten human element has glossed the formal written text of Article II of the constitution. So that was our discussion of George Washington. We've talked about other institutions and persons,um, Federal judges and the Supreme Court, the House, the Senate, administrative agencies too. Once again, human elements interacting with formal texts in ways to try to, to, complete the textual project by actually implementing it in the world with, with human judgement, and institutional judgement coming in. We talked about the role that the two parties have played in completing, the the un, the, the incomplete text that is the, the written Constitution. So, today we're going to continue in that tradition, and in the, the companion lecture, and talk as a set about this idea of, of conscience, of, of, of moral seriousness and solemnity. The Constitution at several places, invites or requires, people to take oaths to uphold the Constitution. [COUGH] There's not a lot of text about the presidency, and yet the presidential Oath of Office is specified word-for-word. I do solemnly swear that I shall faithfully execute the office of President of the United States and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States. So, they specify this oath word-for-word There's another reference in Article VI, the supremacy clause, requiring all federal officials and indeed state officials, state judges, state lawmakers state executive officials to swear oaths of allegiance to the constitution. The very first bill that the very first congress in 1789 enacted was a bill specifying the proper oath of office to be, a constitutional oath to be taken be various officials. You see the idea of oaths loom very large in early and important cases like Marbury versus Madison when, the Fourth Amendment talks about, how, certain warrants need to be supported by people swearing that they know, that they know certain things to, that they believe certain things to be true on, on, oath or, or affirmation. The Fourteenth Amendment after the Civil War, had some special punishments, in Section III for officials who had sworn oaths to the US Constitution and had betrayed those oaths by taking up arms against, the Federal System, against the Constitution, and they were treated more harshly because they were oath breakers. So again, and again, and again the Constitution itself is, is sensitive to the idea that they're going to be human beings and we have to enlist their allegiance. We have to get them on board with the project, and we try to do that by getting them to swear oaths of allegiance to the project. But, but if the Constitution doesn't have, at least a little bit of give in it, rule for human judgement, are moral people going to be willing to sign on to this project if, there is no room for them to ever exercise independent moral judgement? So, we want them to be committed to the constitutional project but we also want them to be morally serious individuals. We don't want morally serious individuals to say well, I have to, I can't really participate in the constitutional project because it's asking me to surrender too much of my own judgement and soul, and, and conscience. So, we're going eventually, by the end of todays session, talk about juror, what's was sometimes called juror nullification. The role of, of, of conscience, especially among criminal jurors. But before we do that, I want to put that issue, in a larger structural, constitutional framework. And then in the next lecture we'll talk, we'll continue to talk about juror, juries and jurors nd also bring [COUGH] judges a little bit more centrally into the picture, and I'll tell you about these two folks in robes. They're, they're pretty famous judges from the Warren Court era, and I'll tell you about them at the end of the next lecture per our tradition of coming back to the, the pictures that begin each chapter of these books that we're talking about, America's Constitution: a Biography, and America's Unwritten Constitution. Those are the two books, of course. So, take a step back. Try to look at the system of the Constitution as a whole, different branches of government, two houses of the legislature, a separate executive branch, a separate judiciary which in turn is divided between judges and juries. So, why this event system? You could say, well it's basically to discourage laws in general. Laws are liberty-threatening, the story goes. I don't buy the story but here's a standard story that you've heard. Laws are in general threatening to liberty. We want to make it difficult to pass and enforce laws because laws are liberty-threatening and if we have a whole bunch of branches, actually we're going to have fewer laws. If a law has to pass both the House, and the Senate, and be signed by the President and, get the approval of judges and juries we're going to have fewer laws, in application and that will be a good thing. But that standard story, okay, the Libertarian story, doesn't work so much. When you have both the House and the Senate needed to pass a law, yes, it's possible nothing will pass, because the House wants bill A, B, and C, and the Senate wants, has certain provisions A, B, and C that are liberty-threatening and the Senate doesn't like that, but it prefers D, E, and F, which are also liberty-threatening and nothing passes. Okay, so bicameralism, can lead to nothing passing and, liberty is safe. But bicameralism, my friends, can also lead to a big log roll, legislation, where the house gets A,B andC and the senate gets D,E and F, and and the President haves GH and I and all of this stuff passes, the President could say I won't sign the bill you the legislature want unless you give me my stinky provisions. And some of those stinky provisions might be liberty-threatening. So, this just without more bicameralism, the House, the requirement that both the House and Senate sign on. Or the, the presentment, the idea that generally the President needs to sign or else have, his veto overridden. That could end up leading to more laws rather than less, through log rolls, and the framers were aware of this. The ability to block a bill is also the ability as a practical matter, sometimes to extort agreement from the other branches for something that they wouldn't like in general, but that you want. And by the way, even if it were the case that actually we end up with fewer laws, that also this, this system, if it does make passing stuff more difficult, it also makes repealing stuff more difficult. So, suppose we have, on the books, one stinky law, one liberty-threatening law, bicameralism and presentment ordinarily, if it makes it difficult to pass, maybe it makes it equally difficult to repeal and now we've got these laws on the books. If you really thought laws were presumptively bad, you could provide, you could have provided, the framers could have, but didn't, that every law lapses after a certain period — 10 years or five years, two years, whatever — and needs to be readopted. But that's not in general what the constitution does. It does that for one specific category of law that we're going to talk about in a minute actually. Laws that create standing armies actually do lapse every two years. There's a sunset that automatically built in. By the way, you know, sometimes laws don't threaten liberty, they protect liberty. Laws, for example, having a census every ten years protects the rights to vote. Lots of other laws, that protect our rights to vote or other important rights. Laws that actually provide, for, remedies against government officials when they violate your, your rights. So, not all laws are bad, and if all laws were bad, then you might think they should have provided that they automat, are presumptively bad, that they should lapse every so often, but they, that's not what the framers provided. And by the way, bicamerals and presentment can lead to more laws rather less. So, so, we need to refine this Libertarian idea that we have different branches cause laws are presumptively problematic. I'm going to suggest instead that our system is designed to produce fewer laws of a certain sort. Maybe three or four different kinds of laws are disfavored. First, laws that create a standing army are disfavored, because constitutionally every army appropriation, every military appropriation for a standing army lapses every two years. The Constitution requires that in, in Article I, Section IIX. So, that's a sunset provision, not for all laws, but for standing army laws because the framers were afraid of standing armies. They thought they were a distinctive threat to liberty. Yes, you can have them, but they have to be re-voted affirmatively every two years. And every two years there's a new House of Representatives and all the House has to do, is simply nothing at all, just sit on its hands. You know, think, shut down of a certain sort. The House refuses to pass the military appropriation to bill, the standing army lapses. It has to fold its tent and go home. So, they were concerned about standing armies, not navies apparently. They thought armies were more threatening to domestic liberty than were a Navy so, so, so the system is designed to have to, to tilt against army laws of a certain sort. It's also designed to have fewer arguably unconstitutional or genuinely unconscionable laws, not fewer laws all together. But fewer arguably unconstitutional or unconscionable laws. How does that work? You can't have the log roll if you, you, you are a person of honor, you've taken an oath to the Constitution and, and the things being proposed to you, if you think it's unconstitutional, then as a man of honor or woman of honor, you just have to say no. So, you want A, B and C and the other brand say's okay, we'll give you that, what you want, but only if you agree to D, E and F, and if you think D is unconstitutional, or E or F, even if you want A, B and C you can't do the log roll. You can't say okay, I'll, if you give me what I want I'll vote for your stuff. If I sincerely believe it's unconstitutional, because that would be perfidious, that would be not faithful to your oath. So, the system is not designed to have fewer laws in general, but fewer unconstitutional laws. If the House thinks the law is unconstitutional, it has to just say no. And, and it can't log roll because it thinks that that was unconstitutional. Or if the Senate thinks so, it has to say no. Or if the President thinks it's unconstitutional, he has to veto it and if it's a criminal law, even if his veto's overridden, he can refuse to prosecute under it or he can pardon everyone who's been, charged under it, as Thomas Jefferson famously did. He thought the Sedition Acts, The Alien Sedition Acts of 1798, he thought the sedition act was unconstitutional so he pardoned everyone. So, and judges can set aside, not bills that they don't like, but bills they sincerely believe to be unconstitutional and actually we're going to see jurors can do the same thing. So, our system is designed so that an arguably unconstitutional, or unconscionable law sort of never gets implemented. and, and, and that's true whether the House thinks it's unconstitutional or the Senate, or the President, or judges, or juries. Each of them has a particular kind of check, not against all laws, laws that I think are bad policy, or, smelly but no, something they think is genuinely unconstitutional because they've taken an oath of office or genuinely unconscionable. Something where they really just can't say well, let's compromise on this because if they are men and women of conscience, there are certain things you have to draw a line in the sand. You just have to say no, I can't agree to that. So, the system is designed not to have fewer laws in generally but fewer, standing army laws, fewer arguably unconstitutional laws, arguably, unconscionable laws. And by arguable, I mean one branch thinks it's unconstitutional, but maybe another branch doesn't. And the branch that thinks it's unconstitutional could be the House, or the Senate, or the President, or judges, or as we're going to see, jurors. It's also our system is designed to be particularly protective of criminal defendants and, and in the criminal justice domain create multiple checks against law because criminal law is seen as, as a place where certain kind of liberty, bodily liberty your, your life, might be at stake and if it's capital punishment law, your, your limbs, your liberty, if incarceration, is a possible punishment. So, where, where people's lives and limbs are involved in the criminal justice system as potential defendants there are special checks and balances against law. Let me just rehearse them for you. I'm going to tell you what the federal system is on the criminal side, and then to show you how it's different and more protective than federal law on the non-criminal, the civil side, or is also different than how state criminal law operates. Federal criminal law is distinctive. First, there is no, you need both the House and the Senate to vote for a federal criminal statute. There is no federal criminal liability unless both House and Senate are on board. That's going to be different for example than in the civil domain, non-criminal, where sometimes judges on their own can create liability for a defendent. If a government official for example violates your 4th Amendment rights, the government, the courts have allowed you to sue. That government's official directly under the Fourth Amendment, under the constitution, if, the, the officer violated your search and seizure rights. Even though there's no statute that says so, federal courts have created civil liability. This is called Federal Common Law. It's judges in effect creating, certain rules of, of, of liability. There's no criminal counterpart. Federal courts have never been able to create federal criminal liability, only civil liability. So, both the House and the Senate have to, basically, vote for a, a, a, to make something criminal, otherwise it's not a federal crime at all. And that's why when George Washington, and the Neutrality Proclamation seemed to suggest that he could create federal criminal liability unilaterally for people who violated neutrality. The court very famously, Supreme Court in the case called Hudson and Goodwin, a few years later said no, only Congress can create a federal crime. And the President has to sign it and, and, now if his, and if he vetoes it, it's not a loss. Suppose his veto is overridden. Well, on the civil side, even if the President doesn't like a bill, he vetoes it, the veto's overridden and then he probably has to enforce it. And he and, and even if he doesn't enforce it, the law can provide for other people to enforce it. He, say he doesn't like antitrust laws where the law can say civil plaintiffs can, can sue under antitrust. So, on the civil side his veto can be overridden and you can have private enforcement of, of antitrust laws or antidiscrimination laws. Not on the criminal side, even if his veto's over ridden, he can refuse to prosecute. It's called prosecutorial discretion, it's really non-prosecutorial discretion, discretion not to prosecute, and no judge can force him to prosecute, and no private person on the federal level can initiate a criminal lawsuit, so on the criminal side he in effect he has two vetoes, two pens, his veto pen that can be overridden by a two-third's vote, but he also has his pardon pen, his non-prosecution pen. Even if, even if a prosecution occurred, he could just pardon the way Jefferson did and that's final. So, if the President doesn't like a Federal criminal law and people then people aren't punished by it. He can, refuse to prosecute, he can pardon. So, so, and that's not true on the civil side. On the civil side the laws get enforced maybe even if the president doesn't like them, thinks they're very bad, because you can have private enforcement. Now, think about the judiciary. On the criminal side, a judge can automatically just say no to a federal criminal law and jurors as we're going to see, actually, can also just say no, they can acquit, and once the juror acquits, or the jury acquits for whatever reason, the defendant goes free. That's not true on the civil side, on the civil side, if a jury doesn't like a bill, doesn't like a statute, doesn't like the anti, you know a civil antitrust laws, or anti-discrimination laws. Well, the legislature can create, actually, laws that don't even require jury trial. They are enforced through administrative agencies or just by judges sitting in equity, rather than law. When they sit on the law side, there's a jury, but they can sit sometimes without a jury, that's called equity. So, juries could be cut out of the loop altogether in federal and civil law, not in federal criminal law. There has to be a jury. You can't ever be convicted, if you demand a jury, you get a jury on the criminal side. That's not always true on the civil side. You can have administrative agencies and sometimes judges sitting alone. [COUGH] So, on the federal criminal side, six unique checks against an arguably unfair law. House a fed, and this is on federal level. House can say no and there's no law. Senate can say no, there's no law. President can say no, not just with a veto pen, but pardon pen, nonprosecution power and, it's not enforced against you. Judges can say no. Jurors can say no as well, acquit against the evidence, what we call jury nullification. They can just say, we think it's a stinky law, we think it's unconcionable, we're not going to vote to convict so there. And that's that, you don't go to prison, you're not convicted. None of these things really, in general, is true on the civil side. On the civil side you can have civil liability, non-criminal liability, even if the House and the Senate haven't passed a law. Federal judges can sometimes create a thing called federal common law. Even if the President doesn't like it, you can have private enforcement where judges can sometimes order, precedence can do things on the civil side, not on the criminal side. On the civil side, juries can bet cut out of the loop altogether, administrative agencies, judges can sit alone. So, federal criminal law is different from federal civil law. Federal criminal law is also different from state criminal law. The state level actually state judges sometimes do create criminal liability on their own. State level is some states actually do allow private prosecutions of, of, of, of, of crime. So, federal criminal law is distinctive in our system. It's a set of distinct checks against the coercive power of the federal government. and, as I'm going to explain in more detail in the next lecture, jurors have a particularly important role, but that role is structurally symmetric to the Libertarian liberty-protective role, that each of the other five main actors in the system pass. So the House of Representatives can say no, and the Senate can say no, the President can say no, a judge can say no. Oh, I should also mention a grand jury at, in a criminal prosecution, a grand jury can just say no, we don't think the person should be indicted and there's no prosecution. The trial jury is called the petit jury petit, meaning small. It can also say no, but for federal criminal law a grand jury can just rear up and say, we're not going to indict and the 5th Amendment says no one can be held for a serious offense, to answer for a serious offense unless a grand jury indicts. That's not true in many states, that's not true again on the civil side, there's no civil law side, there's no counterpart to the, the grand jury shield that we see on the criminal side. So, all these special checks against federal criminal law enforcement, House, Senate, Presidental veto, non-prosecution and pardon, a grand jury's right to just say, no, a kind of bicameralism within the executive branch. Either the President or the grand jury can say, no, and if either says, no, you go free. If either the House or the Senate says, no, there's no federal criminal law on the books, and if either the judge or the jury at trial says no you go free, you walk. We're going to talk a little bit more about now the specific role of, of jurors, their right to rear up on their hind legs and just say no, what critics call jury nullification what I think is more neutrally described as acquittals against the evidence. We're going to talk about that in the next lecture and we're also going to talk about what judges should do if they think criminal law is savage, unconscienable, inhumane, and we'll talk about these two characters. So, stay tuned. [MUSIC]
