Cite as: 522 U. S. 398 (1998)
Opinion of the Court
invoked. As to the when: The only reason Justice Stevens adduces for invoking it here is that a felony conviction for this offense seems to him harsh. Which it may well be. But the instances in which courts may ignore harsh penalties are set forth in the Constitution, see Art. I, § 9; Art. III, § 3; Amdt. 8; Amdt. 14, § 1; and to go beyond them will surely leave us at sea. And as to the how: There is no reason in principle why the dissent chooses to mitigate the harshness by saying that § 1001 does not embrace the "exculpatory no," rather than by saying that § 1001 has no application unless the defendant has been warned of the consequences of lying, or indeed unless the defendant has been put under oath. We are again at sea.
To be sure, some of this uncertainty would be eliminated, at our stage of judging, if we wrenched out of its context the principle quoted by the dissent from Sir Edward Coke, that "communis opinio is of good authoritie in law," 3 and if we applied that principle consistently to a consensus in the judgments of the courts of appeals. (Of course the courts of appeals themselves, and the district courts, would still be entirely at sea, until such time as a consensus would have developed.) But the dissent does not propose, and its author has not practiced, consistent application of the principle, see, e. g., Hubbard v. United States, 514 U. S. 695, 713 (1995) (opinion of Stevens, J.) ("We think the text of § 1001 fore-closes any argument that we should simply ratify the body of cases adopting the judicial function exception"); Chapman v. United States, 500 U. S. 453, 468 (1991) (Stevens, J., dissenting) (disagreeing with the unanimous conclusions of the Courts of Appeals that interpreted the criminal statute at
3 Coke said this in reference not to statutory law but to the lex communis, which most of his illustrious treatise dealt with. 1 E. Coke, Institutes 186a (15th ed. 1794). As applied to that, of course, the statement is not only true but almost an iteration; it amounts to saying that the common law is the common law.
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