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Problems With Vermeule, Part 4: American Contingency and the Oath
Chris Green

(For parts 1, 2, and 3, see here and here and here.)

To understand the nature of the American Constitution, we have to attend to particular ways in which our Constitution situates itself. For instance, the constitutional convention situated the Constitution spatially by using the phrase “the preceeding Constitution” to refer to the constitutional text. It situated itself temporally by using “now” to refer to the time of the Founding, and distinguishing between “ourselves” and “our Posterity” in the Preamble. See here and here and here for much more on the details, none of which Vermeule mentions at all.

Understanding the contingency of constitutional ontology—the fact that the American Constitution did not have to have the nature it in fact has, but could have been designed differently—is the key to understanding the argument that I and others have made about the Article VI oath as a basis for originalism. Refusing to engage with these explanations of the argument, Vermeule’s book construes this as an argument that any constitution with an oath must be interpreted in line with its original meaning. He says at page 214 note 290,

In itself … swearing to respect ‘the Constitution and laws,’ or any similar vow, does not say anything about how the Constitution should be interpreted; thus the constitutional oath poses, rather than resolving, the interpretive question. The argument for positivism and originalism from the constitutional oath is transparently circular, however elaborate the efforts to infuse it with methodological content. Any such argument is always parasitic on independent assumptions. It is immaterial whether those assumptions are made explicit or left implicit and smuggled in. In either case, the oath by itself is simply incapable of doing the work that originalist proponents hope to force it to do.

Note first off that the oath argument is not an argument for “positivism and originalism”; here as in countless other places in his book Vermeule sows only confusion by running these two ideas together. The oath argument is an argument that the original meaning is binding on interpreters—the thesis about the American Constitution that Vermeule denies—not an argument about the nature of law as such. Positivism and its competitors simply have nothing to do with it. The oath gives us, normatively, reason to care about a particular entity, the Constitution. Serious oath-takers should then think about what sort of entity the words “the Constitution” pick out.  But not Vermeule. He refuses to look at details of constitutional self-definition. He is content to misrepresent his interlocutors as relying on “the oath by itself.” The oath by itself makes the Constitution important, normatively, but other material makes the Constitution what it is, descriptively.

The oath by today’s officeholders provides a normative basis for caring, morally, about the entity “the Constitution.” We then use the sociological realities of America today—i.e., the contingent facts about American culture today, not dependent on the nature of law as such—to determine that the phrase “the Constitution” points us back to the same entity that George Washington swore to uphold. These contingent facts about present-day usage tell us what object the phrase “the Constitution” picks out when oath-takers today use it. When we press on and go back to see what, historically, Constitution George Washington swore to uphold, we find words like “now,” a cover letter with “preceeding,” and so on.

These claims—supported by history, not just “assumptions,” of course—are indeed “independent” of the mere existence of an oath. Other countries with different sorts of constitutions might of course impose different obligations with their oaths. But morally-serious Americans who take the Article VI oath, and those who give them advice, need to pay attention to these details. Persistence in breezy claims of circularity will not cut it.