The week of Constitution Day is circled on the calendars of state and federal judges because we are often called on by schools and civic groups to speak at events to tout the virtues of the Constitution. Last week, an unusual Constitution Day celebration was held at the Washington National Cathedral. Dallin Oaks, leader of The Church of Jesus Christ of Latter-day Saints, spoke in the nave of the cathedral before a capacity audience that included former D. C. Circuit judges Merrick Garland, David Tatel, and yours truly. (Full disclosure: I was involved in the planning of the event wearing my hat as a Fellow in the Constitutional Governance Initiative of the Wheatley Institute at Brigham Young University.)

Nothing unusual so far. What was unusual was the message Oaks delivered. Before called into full-time service for the church, Oaks had graduated from the University of Chicago’s law school, where he was a protégé of Edward Levi, clerked on the Supreme Court for Chief Justice Earl Warren, became a tenured professor at the Chicago’s law school, and later a university president, and a justice on the Supreme Court of Utah. Not a typical path to becoming the leader of a worldwide church.

Oaks drew upon both his legal background and his religious calling to deliver an address titled, “Faith, Freedom and the Common Good.” Citing the work of Yuval Levin, Martha Minow, Robert George, and others, Oaks offered a provocative interpretation of the role the Constitution plays in overcoming the toxic polarization that besets our nation. You can read the entire address at this link.

Here were my favorite excerpts:

“The Constitution compels a divided people to build coalitions to allow them to act together. ‘Compels’ is a strong word, but it is exactly what the Constitution does. It puts what we now call ‘peacemaking at the heart of the Constitution’s process for achieving freedom and unity, and fairness for all. . . . The Constitution requires us to deal constantly with people who disagree with us. It compels a divided people to build coalitions that allow them to act together for the common good. . . . The United States was founded and built by people of different nationalities, ethnicities, and beliefs. Its unifying purpose was not to establish a particular religion or to perpetuate any of the diverse cultures or tribal loyalties of the old countries. Our founding generation … sought to be unified by a new constitution and laws. . . . As a practical basis for unity, all of us should accept the reality that we are fellow citizens who need each other. This requires all of us to obey some laws we dislike and to live peacefully with some persons whose values differ from our own. We should make every effort to understand the experiences and concerns of others, especially when they differ from our own. We should be especially careful not to seek total dominance for all our own positions. Even though the First Amendment obviously guarantees the right to exercise or practice religious beliefs, that vital right is not absolute. . . . In a nation of many different religious beliefs or disbeliefs, the government must sometimes limit the right of some to act upon some of their beliefs when it is necessary to protect the health, safety, and welfare of all. . . . Living together in peace requires goodwill among those who differ. . . . Far from being a weakness, reconciling adverse positions through respectful negotiation and coalitions is a virtue. . . . Unfortunately, a major way that contending parties pursue unity is not through peacemaking but through litigation . . . , but courts are ill-suited to the overarching, complex, and comprehensive policy-making that is required in a circumstance like some of the current conflicts between . . . values. . . . I prefer the less contentious route of legislative law-making. . . . I appreciate what David Brooks said in his final column in the New York Times: ‘Despite what the cynics say, I still believe we’re driven not only by the selfish motivations but also by the moral ones — the desire to pursue some good, the desire to cooperate, to care for one another and to belong.’ . . . . When a contentious issue arises, one filled with major conflicts, we ought to see this as an opportunity to listen and to learn, both about the issues at hand, and about those who differ from us. When we approach conflict in this way, we are pursuing a ‘fairness for all’ objective. As we negotiate and form coalitions in this spirit, we seek to ‘moderate and unify’ without compromising core values. This process . . . . produces peacemakers, even in those instances when competing core values may preclude ultimate conciliation. . . . People of goodwill, compassion, and a desire to understand and help one another are at the core of peacemaking and fairness for all in the constitutional process of achieving freedom and unity, as difficult and slow as it is. It is all about trying to understand the deep needs, the deep commitments on both sides and then to forge solutions that yield peace and fairness for all.”

Although the D. C. Circuit is known chiefly for its administrative law docket, there are a smattering of cases it hears that are direct appeals from criminal convictions. Last week, the court issued an opinion in one such case.

In United States v. Robert P. Burke, No. 25-3104, the D. C. Circuit upheld former Admiral Robert Burke’s convictions for bribery and related offenses after a jury found that he agreed to help Next Jump, a leadership-training company, obtain a Navy contract in exchange for a lucrative job after retirement. The evidence showed that Burke discussed employment with the company while still in uniform, pushed subordinates to get a contract in place quickly, and later accepted an offer that included a $500,000 salary and stock options.

On appeal, Burke argued that the indictment was legally defective, that the trial court improperly excluded from evidence certain emails and text messages, and that the jury instructions were flawed, but the court, in an opinion written by Judge Garcia and joined by Judges Henderson and Millett, rejected those arguments and affirmed. The court explained that even though Burke lacked authority to personally sign Navy contracts, his use of his rank to pressure a subordinate to award one could still qualify as an “official act” under the federal bribery statute. The court also concluded that any error in excluding the emails and text messages was harmless given the substantial evidence of guilt, including other emails and text messages, witness testimony, and Burke’s own admissions. Finally, although the court found that the bribery instruction misstated the required mental state, it refused to reverse on those grounds because Burke’s own lawyers proposed the erroneous instruction.