Once upon a time, in a land known as Christendom, a man died rather than betray his conscience, which is to say, his “convictions about what it is right and wrong to do.” That man was Thomas More (1478–1535), who, if you are a certain kind of law professor writing in the year 2020, you can imagine “erupting with amazement and anger” over some of the more liberal pronouncements of the U.S. Supreme Court before it was rescued by the three appointees of a twice-impeached president.
Fast forward to the mid-twentieth century:
Four centuries earlier, an eminent Catholic jurist, Thomas More, had resigned from the office of lord chancellor and had refused to take a mandatory oath, suffering execution as a consequence, out of faithfulness to his church. Now the situation was flipped: [the Catholic Supreme Court Justice] William Brennan emphasized his fidelity to the judicial oath as a way of demonstrating his independence from his church, and thus his suitability for high office.
Decline has come upon the land. “Ideas and movements that were fresh in the sixteenth century…seem to be floundering or decrepit today.” One such idea is that of conscience. A book might be written “[r]eflecting on the changing meanings and importance attributed to conscience” at several “decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today.” Indeed, a provocative, entertaining, even theatrical book of this kind has been written! But also a book too clever and coy, a book that exults in rhetorical questions and abounds with sentences like, “Let us return and take another look. Just in case.”
Steven D. Smith’s The Disintegrating Conscience and the Decline of Modernity has three protagonists: Thomas More, James Madison, and William Brennan. Now and again, Smith seems to lose the thread of his story, and the reader’s patience is sorely tried, but the book’s basic argument is clear and its exposition lively. Smith wants to unspool the logic of conscience as a concept—from its zenith in late medieval times to its nadir in our own time.
First, then, Sir Thomas More, one of two “illustrious Thomases” Smith admires (the other is, of course, Aquinas). For More, conscience was fundamentally religious: God wills that you do the right; to betray what you believe in conscience is to act against God. As Smith explains, More believed “you should form your beliefs about what is right not on the basis of your own private judgment but rather according to what Christians have always and everywhere believed”—that is, “the ‘consensus’ or ‘common faith’ of Christendom.” That consensus, however, was already passing during More’s lifetime. By his own lights, he did what he could to preserve it—by persecuting Protestants—but with his death “ended…an extraordinary age. Even a world. Or…we might say that thus began a new era, or a new world.”
Enter Madison, who also conceived of conscience as “in its essence a religious faculty,” but whose interest in it was more political than personal. Smith repeatedly refers to conscience’s “capacity to consecrate error.” The idea is that you would do wrong to act against your conscience because, in doing so, you would be choosing to do what you take to be wrong, and that can never be right—even if you’re wrong about what’s right and wrong. If it’s always wrong to act against your conscience, does it follow that it is always right to act in accord with it? Smith is too quick to answer in the affirmative. According to him, the correct reasoning is: “You believe God wants you to do this; God knows you believe this; and therefore God does want you to do this (even though…in a different sense God might not want people, presumably including you, to do it)”—because what you believe is wrong. But that’s misleading. In fact, you’re responsible not only to your conscience, but for it. If it’s poorly formed, though you would do wrong to act against it, it wouldn’t be right, in the sense of good, for you to act in accord with it. Presumably, what God would really want is for you to reconsider whether your conscience is working as it should.