When conscience comes up in a constitutional context today, it is usually in relation to the Bill of Rights. As the words of our Constitution’s First Amendment make clear, government may not prohibit the free exercise of religion or abridge the freedom of speech. Yet it remains controversial whether and when such rights may be overridden by compelling governmental interests, or to what extent accommodations must be made when impartial laws happen to conflict with the deeply held convictions of particular citizens.
Though its proper contours are debatable, this sensitivity to the special protection of conscience is fundamentally true to the spirit of our institutions. According to James Madison, the First Amendment’s principal architect, “government is instituted to protect property of every sort,” and “conscience is the most sacred of all property.” Yet Madison was initially skeptical regarding the need for a Bill of Rights, believing that the original design of our constitutional republic was a sufficient and even superior protection for cherished liberties.
Madison’s reticence ought to give us pause. It is not that contemporary constitutional discourse places too much weight on the concept of conscience and associated rights. Rather, the question is whether our focus on the extraordinary claims of conscience has led us to forget the role conscience ought to play in everyday governance and civil society.
When we reconsider the principles underlying our political tradition with this question in mind, we find that conscience is central to the goals of government as conceived in the U.S. Constitution, and the means by which it seeks to achieve those goals. It follows that a respect for the rights of conscience is vital to our understanding of the normal functioning of our legislative, executive, and judicial branches of government as well as of the duties of every citizen who wishes to help “secure the blessings of liberty to ourselves and our posterity.”
At first glance, this proposal may seem eccentric. After all, the word conscience appears nowhere in the Constitution itself, and only three times in the eighty-five Federalist Papers penned by Publius to explain and recommend that Constitution to the American people as they debated its ratification.
If we look carefully at those three references, however, we begin to see more distinctly what kind of thing conscience is, and why it is of supreme importance to government in general, and republican government in particular.
Conscience as the Ultimate Guide
In the first instance, considering the question of whether senators can be trusted to ensure that treaties with foreign countries are advantageous to the United States as a whole and to each of its parts, Publius lists conscience as one of those “consideration[s] that can [favorably] influence the human mind,” along with “honor, oaths, reputation, . . . the love of country, [and] family affections and attachments.”
Later, when discussing the immunity of sovereign states to private lawsuits without the state’s consent, he notes that “contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force.”
Finally, in resting his case that the Constitution is in the final analysis “worthy of the public approbation,” Publius admonishes his readers that “every man is bound to answer [this question] for himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment.”
The genuine and sober dictates of human judgment. No more concise and precise definition of conscience, as understood by the classical philosophical tradition, can be imagined. And in referencing conscience so understood, Publius makes clear that it is the ultimate and essential guide to the choices of government officials, of governments as a whole, and of each citizen. It is no exaggeration to say that the content of our consciences will determine the direction of our foreign and domestic affairs and the fate of our society as a whole.
To form our conscience well and to “act agreeably” to its sober dictates is “a duty from which nothing can give [us] dispensation,” Publius continues. Not only is society itself powerless to override conscience, but obeying the voice of a sincere and honest conscience is one of those “obligations that form the bands of society” itself. As an authority equally binding on individuals, groups, and governments, conscience is capable of holding them together in the concord of civil society—and its neglect of driving them apart in contests of interest, pride, passion, and prejudice.
Conscience as the Voice of Reason
Returning to the question of what conscience is, we can see that Publius treats it as a function of the human mind in its struggle to discern the difference between good and bad choices, amidst the fog of distorting influences. Since he is assuming a readership intimately familiar with philosophical and theological elaborations of this notion, we may do well to turn to one of the greatest teachers who has spoken on the subject: St. Thomas Aquinas.
According to Aquinas, “Conscience is nothing else than the application of knowledge to some action.” This sounds simple enough, but when choosing a course of action, what knowledge do we have at our disposal? Building on a philosophic tradition already ancient in his days, Aquinas notes that every human action aims at some good, and so the fundamental question of conscience becomes: what can we know about the nature of the good, so as to discern the proper end or purpose of a specific action, as well as the best means of achieving it?
Fortunately, according to the classics, the human mind possesses a power of knowing what is true, good, and beautiful. This power is known as logos, ratio, or reason; and when it succeeds at knowing, that is called nous, intellectus, or understanding. As this distinction between reason and understanding implies, however, we are not born knowing all that we need or desire to know, and not every attempt at reasoning results in genuine understanding. Yet unless we had some innate knowledge of what makes something true, good, or beautiful, all the reasoning in the world would be powerless to achieve any meaningful understanding of what those universal ends look like in particular cases.
For Aquinas and others before and since, the innate knowledge of the good that guides our reasoning about what to do is known as the natural law. This teaching is reflected in the famous words of the Declaration of Independence in its brief but seminal explication of “the laws of nature and of nature’s God”: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
According to the Declaration, governments exist to secure our natural and equal rights to life, liberty, and the pursuit of happiness. Today, these ends are often asserted or assumed to possess essentially subjective, if not merely selfish, meanings and values. But in the natural law tradition on which the Declaration relies, the self-evident truths discernible to the human mind are elements of objective reality, and the duty of governments and citizens to abide by these principles, and even defend them to the death, is nothing else than a duty to act agreeably to the dictates of right reason, or a well-formed conscience.
This same duty governs the design of the Constitution of 1787, as explicated by James Madison in the immortal Federalist #10. There, Publius explains that the deadliest flaw threatening every society in human history is the vice of faction, which he defines as any combination of citizens, “whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
As anyone who has studied American Government will recall, the central purpose of our constitutional design is to mitigate the effects of faction. But how often is it noted that Madison’s definition of faction can be restated as a group of citizens pursuing a political agenda driven by interest or passion at the expense of reason or conscience?
Yet that is precisely the point Madison himself emphasizes when he traces the root cause of faction to the weakness of human nature. “As long as the reason of man continues fallible,” he remarks, “his opinions and his passions will have a reciprocal influence on each other,” to the detriment of himself and of society.
For each individual, the best means of combatting the vice of faction is the strengthening of conscience through the cultivation of intellectual and moral virtues. As Publius reminds us, wisdom enables us to discern the true interests of our country, and patriotism and love of justice prevent us from sacrificing it to “temporary and partial considerations”—that is, our own short-term advantage or satisfaction.
And yet as we know from the psychology of the courtroom, where we must never let a man be judge in his own case, a faculty of judgment so strong that it is beyond bias, and an integrity so firm that it is beyond corruption, are rare enough that we cannot safely rely upon them in the design of our public institutions. For this reason, Publius reflects that “neither moral nor religious motives can be relied on as an adequate control” for the destructive forces of faction.
Catching the Collective Conscience
The institutional solution to the problem of faction outlined by the Federalist and embodied in our Constitution is a set of checks and balances by which competing groups, through their representatives, are made to share portions of governmental power, without any of them possessing full control. As a result of the consequent stalemate among factions, groups that may be prone to harm one another or the public good are forced to negotiate and compromise, and in doing so they are induced to remove the most harmful features of their proposed policies, in order to win the approval of groups that see those dangers more clearly.
As Madison summarizes it in Federalist #51, “a coalition of the majority of a whole society”—as opposed to a victorious faction within that society—“could seldom take place upon any other principles than those of justice and the general good.” By pitting ambition against ambition, and private interest against private interest, the dictates of conscience are better secured without relying solely upon the perfect wisdom or justice of any one person or group.
This solution to the problem of faction may sound familiar, but it is worth reexamining carefully. Quite frequently, Madison’s constitutional strategy is falsely represented as giving up on religion, morality, and conscience, and replacing them with a governmental machine capable of producing harmony from a balance of selfish interests and passions. It was Immanuel Kant of all people who quipped that even a nation of devils can be well governed by an intelligently designed system of laws.
Nothing could be further from Madison’s meaning. So far from believing that republican government is a substitute for conscience, Madison argues in Federalist #55 that such government, though demanding “a certain degree of circumspection and distrust” of one’s fellows, because “there is a degree of depravity in mankind,” also “presupposes the existence of . . . sufficient virtue among men for self-government.” Unless citizens possess the requisite degree of virtue, he stresses, “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” With apologies to Kant, a free and well-regulated nation of devils is nothing but a vain fantasy.
Instead of looking at our system of checks and balances as a substitute for conscience, then, it is better to see it as a device for catching the conscience of the King, as Hamlet might say. And since in our constitutional republic, the people are sovereign or “King,” it follows that it is the people’s collective conscience that most needs catching.
As various groups vie for influence and control, our complex modes of power sharing are designed to enable each group to call out the faulty reasoning of others, while requiring each group to submit to the scrutiny of others, answering as best it can for the soundness of its proposals, and compromising as necessary to obtain the support of sincere critics.
It is not the job of each citizen to work through all such compromises for him or herself, a task that would be unmanageable in most cases. Nonetheless, if the interplay of factions is “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens,” as Madison puts it, then that body of chosen citizens must on the whole possess sufficient wisdom and justice to negotiate differences with a view to forming “a coalition of a majority of the whole society” grounded on “justice and the general good.” And that means that we the people, who choose that body of citizens, must be able to recognize and reward virtuous leadership, and vice versa.
In other words, our Constitution is designed to succeed if and only if the American people practice a soundly informed conscientious citizenship. What follows are a few suggestions on how we can cultivate that kind of citizenship today.
Practicing Conscientious Citizenship
To begin with, conscientious citizenship demands a good understanding of our political institutions and a firm commitment to act in accordance with them. To take a relevant example, our Congress is composed of numerous members (currently capped at 535) representing diverse constituencies, because its job is to craft the legislation by which all of us are governed, and doing so requires the input of as many interest and opinion groups as possible. The executive branch, on the other hand, is given to one person (in charge of a bureaucracy) because the president is charged with law enforcement, which must be decisive.
For many decades now, however, Congress has chipped away at this separation of powers by delegating decisions on specific legislative matters to agencies housed in the executive branch. Whether the president resolves such matters through executive orders, or they are left to be determined by unelected officials, the result is that policy is shaped by individuals whose decisions need not rest on a coalition of a majority of the whole society, increasing the odds that they may be influenced by factional interests or passions.
It is easy enough to demonize particular presidents or agencies for abusing the authority we have surrendered to them, but healthier to consider our own role in allowing this transformation to take place. How many of us with strong political preferences are tempted to regard the presidency as a means of imposing our favored policies on the nation as a whole, without serious consideration of how opponents will be persuaded, accommodated, or adversely affected? And how many of us who consider ourselves moderates limit our political participation to shaking our heads at conflicting arguments, wishing someone else would solve social problems without our needing to engage in or even follow the complex deliberations needed to resolve profound disputes with due respect for the rights and interests of all citizens?
So long as we subscribe to these magic bullet or magic wand theories of politics, we are missing the fact that a free society depends on working out of differences through a sincere and substantive (that is, a conscientious) exchange of arguments and proposals, as difficult and even painful as that process may often be. For such an exchange to be fruitful, it is requisite that the parties concerned possess certain crucial virtues, which we cannot expect others to have, or even recognize in them, unless we take steps to practice them ourselves.
Among these virtues, two are especially worthy of note. The first is the courage of our convictions. Unless we are resolved to seek the truth, and willing to sacrifice on its behalf, any negotiations to which we contribute are more likely to result in superficial and short-lived solutions than in genuinely wise and just resolutions to serious disagreements.
The second virtue is humility. Unless we are willing to admit our own fallibility, and hence the possibility that we have something to learn from others, our own convictions will be brittle rather than robust. And even when we remain convinced that we are right about a specific matter, unless we are willing to work patiently to persuade or accommodate those we believe to be mistaken, no resolution to our differences, however wise and just it appears in our own minds, can have a lasting influence in a free society.
A renewed appreciation of the role of conscience in constitutional citizenship will not dispel the controversies besetting contemporary political society, or obviate the need for special protections in certain cases. Pursued with sufficient courage and humility, however, conscientious citizenship can steer us back to laws informed by the genuine and sober dictates of sound judgment, including a readier respect for those whose judgments differ from ours.
A version of this essay was presented at the St. Ambrose University 2023 Constitution Day Panel, “Respecting Conscience Rights in a Constitutional Republic.”