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06/23/2015

Richard Re on the Article VI Oath
Chris Green

Richard M. Re (University of California, Los Angeles (UCLA) - School of Law) has posted Promising the Constitution, 110 Nw. U. L. Rev. __ (2016) on SSRN. The abstract:

The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive but underappreciated role in constitutional law. For example, the Supreme Court has variously cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. 

This Article provides a new, philosophically grounded framework for understanding the oath, its moral content, and its implications for legal practice. In particular, the Article argues that the oath engenders a promise and so gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath can help solve the “dead hand problem” by explaining how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. On this view, constitutional duty flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.

Larry Solum at the Legal Theory Blog comments--and I quite agree--"Highly recommended. Download it while its hot!" Some quibbles, though, after the jump.

Re's oath-based view of constitutional obligation overlaps a great deal with my own, presented here. We agree (see Re at 15-22) that the present explicit consent of office-holders to be bound by the Constitution is the proper core of an answer to the dead-hand problem. We also agree (see Re at 35-46 and here at 452-63) that the oath does not require parity (or any particular hierarchy) among interpreters.

We further agree (see Re at 23)--and this point is worth expanding upon--that the oath must be understood objectively, rather than in terms of oath-takers' subjective understandings. The subjective understandings of oath takers are traditionally called "mental reservations," and received enormous attention during the sixteenth and seventeenth centuries; they are even disavowed in the current form of the oath. (Re quotes it at p. 3 n.2.) 

The history of hostility to mental reservations is, I think, very important background to Article VI. The short version is that various Jesuits for a time asserted the right to understand oaths according to the context of one's inner mental dialogue, but Pope Innocent XI shut down this tradition in 1679, partly in response to Blaise Pascal's devastating mockery in his Provincial Letters of 1656.

The upshot of this dispute, and here I think Re would still agree, was to privilege the "animus imponentis"--the mind of the oath-imposer--over the "animus jurantis"--the mind of the oath-taker. Re at p. 23 nicely summarizes the rationale for public over private meaning: 

Private meanings do not establish the content of promissory obligations, for such meanings are unrelated to promises’ communicative nature. The critical meaning for any promise is instead the shared meaning communicated between promisor and promisee. Because the oath is made to the public, the relevant shared meaning is the public meaning.

William Paley said very similarly in 1785 (see here, sections 3.2.16.6 and 3.2.21):

As oaths are designed for the security of the imposer, it is manifest that they must be interpreted and performed in the sense in which the imposer intends them; otherwise, they afford no security to him. And this is the meaning of the rule, "jurare in animum imponentis"… The animus imponentis … is the measure of the juror’s duty. ... Subscription to articles of religion … is governed by the same rule of interpretation: Which rule is the animus imponentis. The inquiry, therefore, concerning subscription will be, quis imposuit, et quo animo?” [Who imposed it, and with what intention?]

Re and I offer, however, different answers to Paley's final question--quis imposuit, who imposed it? Re thinks members of the public today impose the oath on officeholders on their own accord and according to the meaning they attach to the text, but I think they do so only as agents of the founders and of the Constitution as a structure. Qui facit per alium, facit per se--he who acts through another, acts himself. Because the founders and the Constitution itself are the relevant imposers of the oath today, we must define "the Constitution" by their lights, not by those of the public today.
 
Re contends, however, that the current legal culture, not the founders or the Constitution itself,  imposes the oath on office-holders. Therefore only the current understanding of "the Constitution," rather than any constitutional self-definition, is binding. Re puts it pithily at p. 22: "[N]ew oath-takers commit to their present-day understanding of the past." This can include judicial decisions: "Judicial precedents can become so closely associated with 'the Constitution' that they form part of the public meaning of the oath." (p. 53)
 
At footnote 76 on page 24, Re mentions my contrary view that the Constitution defines itself--with the complicity of today's legal culture--as a text expressing meaning at the time of the founding. He does not, however, confront any of my arguments or evidence. Let me mention one particularly important piece of evidence about our current legal culture and how it understands its relationship to the Founding. (For much more on the temporal issue, see here at pp. 1657-66.) We do not think that Arnold Schwarzenegger or Jennifer Granholm can become President unless Article II, section 1, clause 5 is amended, and controversies about President Obama and Ted Cruz presuppose the same idea: today, the president must be a native-born citizen.
 
Recall the text of the presidential eligibility clause, though: "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President the United States..." Schwarzenegger, Granholm, Obama, and Cruz are all, of course, citizens of the United States today. If "this Constitution" is, as Re would have it, a different entity than it was in generations past, we cannot say that they were not citizens at "the time of the Adoption of this Constitution." (Similarly, if it is adopted intergenerationally, there is no "time of the Adoption of this Constitution.")
 
If Re is right, then current officeholders adopt a slightly different Constitution each time legal culture shifts in the relevant way, e.g., as precedents become particularly salient or as present-day understandings change. On his view, we cannot, then, say strictly that our "this Constitution"--the constitution to which officials today are bound per Article VI--was adopted in 1788. But our present presidential-eligibility understandings entail that it was.  Insofar as we obviously do not today view "this Constitution" as adopted anew during the present generation, Article II and our view of it today presuppose a different answer to the quis imposuit question than Re proposes. Our current culture still embraces what we might call Fordism, after Gerald Ford's comment that "[t]he oath that I have taken is the same oath that was taken by George Washington and by every President under the Constitution."
 
Similarly, the classic word whose meaning shifts when uttered in different contexts--"now"--must be understood as uttered at the time of the Founding to make sense of Article I section 9 clause 1: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..." This obviously applies to Virginia, but not Kentucky. When we ask the Constitution what time it is--i.e., what "now" means"--it answers with the Founding.