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05/11/2020

Is the Oath Argument for Originalism Circular?
Chris Green

Recently Josh Hammer and John Ehrett have responded to long-time non-originalist’s Adrian Vermeule’s Beyond Originalism by invoking the Article VI oath to support “this Constitution.” I have made such an argument myself (see here and here, and here, with Evan Bernick), as have Randy Barnett and Evan Bernick (see here), Justice Scalia’s teaching partner John Baker (see here and here), and Mike Paulsen (here).

In a new essay, Vermeule claims that this move is circular:

Hammer’s main substantive argument is an appeal to the importance of oath-keeping, and to the associated clauses of the Constitution. But the argument from oath-keeping begs the question; it is necessarily parasitic on some independent account of constitutional interpretation, an account whose validity is itself the contested issue. The current debate isn’t over the question whether to respect the oath of constitutional fidelity, rightly understood; all concerned agree on that aim. Rather the whole debate is over what the Constitution is best taken to say, and how to decide what it says. What is at issue are rival conceptions of what counts as fidelity, rival interpretive approaches that all claim to embody fidelity. If the oath argument were valid at all, it would be valid for all sides, and each could accuse the others of violating fidelity by taking the wrong approach to interpretation. Their disagreement does not of course mean that there is no right answer to the question they are debating, but it does mean that an appeal to oath-keeping contributes nothing to finding that answer.

An Article-VI-based argument for originalism is not, however, about simply “the importance of oath-keeping” in general. It is about specifying the object of the Article VI oath in particular. It is about explaining what the phrase “this Constitution” picks out: what renders claims about constitutional requirements true or false. As Evan and I ask in our title, “What is the Object of the Constitutional Oath?” Vermeule gives no answer. As Ehrett asks, “what, exactly, is the referent ‘the Constitution of the United States’ to which political leaders pledge their support?” Vermeule gives no answer.

Asking interlocutors to explain and justify a constitutional truthmaker—for their account of “this Constitution” in Article VI—is not question-begging. It’s simply asking a very important question. “Rival conceptions of what counts as fidelity” are not the chief issue for constitutional interpretation, but rival conceptions of the object of constitutional fidelity in the American context: as I put it, what our “constitutional truthmaker” consists in.

There are, to be sure, some bad conceptions of fidelity as such. Pope Pius V, for instance, claimed the right in 1570 to release British subjects from their oaths to Queen Elizabeth, an edict that led to the sad history of second-class citizenship for Roman Catholics in Britain. While it is of course unlikely that Pope Francis will claim to release American office-holders from their Article VI oaths anytime soon, at least one fan of Vermeule’s responded to his argument by celebrating 1570. Another bad conception of constitutional fidelity is mental reservationism: the idea that oaths do not impose obligation objectively, but based only on individual oath-takers’ individual mental states. While Vermeule has joked about that view—he once said, “If I ever take an oath to ‘the Constitution,’ I’m going to secretly refer in my head to the unwritten ‘constitution.’ No one can stop me”—he does not seem to take the notion seriously. But it is hard to tell what obligation he thinks the Article VI oath imposes.

Do I, though, commit a petitio principii in my “this Constitution” argument for originalism? I don’t think so. Let’s set it out propositionally to show that my conclusion does not appear in the premises.

(1) Officers today take oaths to support “this Constitution,” and that oath is morally binding unless overriding considerations exist.

(2) Such overriding considerations do not exist.

(3) The objective content of an oath, as an observer would understand it, is binding, rather than an oath-taker's subjective understanding.

(4) Our current oath-taking constitutional culture uses the phrase “this Constitution” to refer to something that is the same for all oath-takers and the same as it was at the time of the Founding; people today think George Washington swore the same oath to support the same Constitution as do current office-holders, and that America has the oldest currently-operational written Constitution.

(5) A constitution with different powers to change is a different constitution.

So,

(6) Our Constitution has the same powers to change that it did at the Founding.

(7) At the Founding, the text of the Constitution imposed its requirements by expressing meaning on the basis of the legal interpretive conventions that existed at the time, applied to the original context.

So,

(8) The meaning expressed by the text of the Constitution, on the basis of the legal interpretive conventions that existed at the time, applied to the original context, binds office-holders today.

For support for (1) to (6), see here. For support for (7), see here.

Update (5/13): Jordan Perkins responds, invoking Dworkin at length; Vermeule applauds. Perkins suggests that a commitment to original meaning is already embedded in premise (4), which concerns our culture today. This does not seem right. Dworkin, who thought that we have always had a common-law constitution of Gallie-style “essentially contested concepts,” whose elaboration is inherently extended in time, can agree with (4). After all, Dworkin thought that George Washington also swore an oath to support a collection of essentially contested concepts. I think Dworkin is wrong about that, of course, but I think that Dworkin would depart the argument by disagreeing with premise (7), not premise (4). That is, Dworkin would disagree with my arguments about constitutional indexicals here, rather than my arguments with Evan about current culture here. Finally, Perkins suggests that originalists are limited to “history and sociology,” rather than moral considerations. But if the Constitution, in its original context, expresses moral or partly-moral concepts—as sometimes it seems to—then devotees of original meaning have to look to moral reality to fill out the application of those concepts. See here. I suspect I disagree with Perkins about how to apprehend moral reality, but it is hard to tell at a purely abstract level. If he were to explain, say, how to read the Privileges or Immunities Clause in a properly techne-not-just-episteme way, our differences might be clearer.

Meanwhile, Cass Sunstein acknowledges the oath argument is "getting traction," but accuses fans of the oath argument of being Trumpy: akin to chanting “lock her up” of Hillary Clinton. Let me be clear: I do not want to lock up Cass Sunstein or Adrian Vermeule. But I do think they should respond to counterargument—and not block scholarly interlocutors on Twitter, something Vermeule seems to do a lot—if they want to be taken seriously. Sunstein mentions his article “There is Nothing that Interpretation Just Is.” Premise (4) is, though, contingent. It’s not based on interpretation, or oaths, in general. Our American oath-taking culture thinks it is swearing the same oath to the same Constitution that Washington did—and indeed, Sunstein himself has said our Constitution is old!—but other oaths and oath-taking cultures work differently. I explain this at pages 1637 to 1641 here, particularly footnote 106, which discusses Sunstein’s A Constitution of Many Minds in some detail. Finally, Sunstein calls constitutional infidelity a “near-crime.” A better analogy is breach of contract, which is generally not criminal. Evan and I make clear in part III.C of our our draft that honest error about the nature of the Constitution gives non-originalists an excuse, if not a justification.  Failure to uphold the constitutional oath need not be in bad faith. But it’s still wrong.

Further Update (5/15):  Sunstein raises the rhetorical stakes a good bit here, repeating the "lock her up" comparison and calling the oath argument "horrible," "ugly," "vicious," "shameful," "unpleasant," and a "howl of rage." The ugliness, howling, and rage seem confined to Sunstein's side of the debate. Sunstein attributes rage to me only by blurring the distinction between oath violations and impeachable offenses.  Again, just because constitutional fidelity has interpretive implications does not mean that those who honestly misunderstand the Constitution's nature should be impeached or have their tenure revoked. Those honestly mistaken about the Constitution's nature have an excuse for their error. But they should confront its implications.  

Sunstein does not say exactly which premise above he rejects or claim that the reasoning is invalid.  He does throw some indirect (and unsupported) shade at premise (7) in claiming that originalism was not prevalent in 1800, 1810, or 1820. Sunstein claims that even if George Washington swore an oath to a Constitution that expressed meaning in a context confined to the Founding—as it did, for instance by using terms like "now" to refer to the Founding—it would be circular for the original understanding of the Constitution, on its own, to make the original understanding of the Constitution binding on us. Right. That's exactly why premise (4) is so important. Current American oath-taking culture looks back to George Washington's Constitution and claims to swear an oath to it too. Of course, (4) by itself doesn't give us originalism, because the Founder's Constitution could have been an intergenerationally-authored Dworkinian one. It just happens that it wasn't. And because we swear an oath to the same Constitution that the Founders did, we're stuck with the bindingness of the meaning expressed by the text in its original context. 

Besides blurring oath violations and impeachable offenses and failing to confront the attitude of today's culture toward the Founders' Constitution, Sunstein blurs sense and reference in his comments on sex discrimination and racial segregation. He claims that the legitimacy of changing applications undermines the bindingness of original meaning. But it doesn't. The constitutional categories expressed by the text in its original context require facts to produce applications, and the Founders could get those facts wrong. A simple instance involves the relative populations of North Carolina and Maryland. The interim rules of Article I section 2 clause 3 make clear that the Founders thought Maryland more populous, but the first census showed otherwise, and the original meaning of "according to their respective numbers," applied to the actual facts, governs rather than the Founders' expected applications. As noted above in the comment on Perkins, the same would be true for moral terminology and moral facts. See here; on the prevalency of the distinction between meaning and application among originalists, see Mitch Berman here at 385-89. 

Update 3 (5/16): Erik Encarnacion and Guha Krishnamurthi reply in a brief paper, Why the Oath Doesn’t Entail Originalist Adjudication. A key premise (their P3) is that Thayerian deference denies originalism. But this is, I think, a category mistake. Views about the separation of interpretive power are orthogonal to issues of the constitutional truthmaker, which the “This Constitution” oath argument aims to resolve. On the Tarskian semantic conception of truth that I deploy here, the constitutional truthmaker is the portion of reality that the phrase “the Constitution” picks out. But that doesn’t entail anything about the distribution of interpretive power or the standards of proof used when courts (or others) are considering disagreeing with a legislature. It only sets up the question (on my view, the question about original meaning) that oath-bound interpreters must ask. That’s consistent with using any of the usual standards of proof in the setting of judicial review: preponderance, clarity, beyond a reasonable doubt, or something stronger still. As Encarnacion and Krishnamurthi point out, Steve Calabresi thinks that the original meaning of “judicial power” is inconsistent with Thayer’s views. And as it happens, I also disagree with Thayer, who neglects the contingency of clarity and the judicial duty of clarification during adjudication; judges who are doing their best will not neglect relevant evidence about original meaning and application-determining facts that emerges later on, nor fail to make proper inferences from the failure of litigants to justify legislation. But the issue of the level of proof judges should demand before engaging in judicial review is distinct from the issue of what oath-bound people are talking about when then say things of the form “the Constitution requires X.” For much more, besides the two articles just linked, see here and here.  

Update 4 (5/17): Sunstein in September 2019: "It’s terrible for a president to violate the oath of office, but doing so is not, by itself, an impeachable offense."

Update 5 (5/20): Vermeule doubles down on the circularity charge by focusing on premise (4): “[S]ee if you can spot the premise that smuggles in originalism here.”

Vermeule silly

But a non-originalist who thinks George Washington swore to support a living constitution—and that's a lot of them—should agree with (4). Sunstein, for instance, agrees with it.  Ronald Dworkin, Jed Rubenfeld, James Fleming, and Sotirios Barber all would agree with it. The only non-originalist who would disagree with (4) would be one who thought that the original Constitution was somehow swapped out for a different one along the course of American history at some point. 

Update 6 (5/21): I respond to Sunstein in Newsweek here.