University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2003 The Office of thea O th Patrick O. Gudridge University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Constitutional Law Commons Recommended Citation Patrick O. Gudridge, The Office ofh t e Oath, 20 Const. Comment. 387 (2003). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE OFFICE OF THE OATH Patrick 0. Gudridge* There is little difficulty, Alexander Bickel declared, in con- cluding that the Constitution takes precedence in cases in which the Constitution and congressional legislation conflict. Whether, or in what circumstances, federal judges should assume the re- sponsibility of deciding if there is such a conflict is a separate and ultimately more important matter. Marbury v. Madison there- fore "begged the question-in-chief"': [A] statute's repugnancy to the Constitution is in most in- stances not self-evident; it is, rather, an issue of policy that someone must decide. The problem is who: the courts, the legislature itself, the President, perhaps juries for purposes of criminal trials, or ultimately2 and finally the people through the electoral process? None of Chief Justice Marshall's arguments persuaded Bickel that active involvement of judges in constitutional inter- pretation is in any sense necessary. It "may be possible; but it is optional."3 The fact that federal judges take oaths to support the Constitution, a matter of considerable relevance for Chief Jus- tice Marshall, was-it seemed-especially beside the point: This same oath.., is also required of "Senators and Repre- sentatives.... Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States... ." Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitu- tion. On one reading, the consequence might be utter chaos- everyone at every juncture interprets and applies the Consti- tution for himself. Or ...it may be deduced that everyone is * Professor, University of Miami School of Law. 1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 3 (1962). 2. Id. 3. Id. at 6. 388 CONSTITUTIONAL COMMENTARY [Vol. 20:387 to construe the Constitution with finality insofar as it ad- dresses itself to the performance of his own peculiar function. Surely the language lends itself more readily to this interpre- tation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judiciary's oath to do the same, and that every official of government is sworn to support the Constitution as the judges, in pursuance of the same oath, have construed it, rather than as his own conscience may dictate.4 Professor Bickel proceeded too quickly. John Marshall might have readily agreed that judicial constitutional interpreta- tion is "an issue of policy" - but he may well have thought (I will argue) that the presuppositions of the oath to support the Con- stitution provided that policy. He might have readily endorsed the proposition that "everyone at every juncture interprets and applies the Constitution for himself" -but he probably would not have viewed this state of affairs as "utter chaos." The pre- suppositions of the oath implied not only authorization for con- stitutional interpretation but also the requisite discipline. Are such conceptions (conceptions Marshall might have plausibly held) of any pertinence now? I address this question last. It is first necessary to sketch what he might have taken "the presuppositions of the oath" to be. A This is the text of Chief Justice Marshall's discussion of oaths in Marbury: Why otherwise does it [the Constitution] direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is com- pletely demonstrative of the legislative opinion on this sub- ject. It is in these words: "I do solemnly swear that I will ad- minister justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and im- partially discharge all the duties incumbent on me as I according to the best of my abilities and under- 4. Id. at8. 2003] THE OFFICE OF THE OATH 389 standing agreeably to the constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery.5 To prescribe, or to take this oath, becomes equally a crime. The constitutional oath to which Marshall refers is, of course, the oath required by Article VI, section 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to sup- port this Constitution: but no religious Test shall ever be re- quired as a Qualification6 to any Office or public Trust under the United States. Why make much of this oath? Oaths of allegiance had played a prominent part in English constitutional practice since at least the reign of Henry VIII. But their use was, more often than not, linked with reformations of relationships of church and state. Administration of oaths, usually selective, was a way of testing for anti-establishment dissent, thus inhibiting it, or adver- tising the (seemingly) small number of dissenters in a particular place at a particular time.7 The article VI oath, by its terms, bars 5. Marbury v. Madison, 5 U.S. 137, 180 (1803). 6. The presidential oath, set out in article II, section 1, paragraph 8, of the Consti- tution is worded not much differently: "Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: -'I do solemnly swear (or af- firm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."' Section 3 of the Fourteenth Amendment attaches implications to the article VI oath: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. 7. See DAVID MARTIN JONES, CONSCIENCE AND ALLEGIANCE IN SEVENTEENTH CENTURY ENGLAND: THE POLITICAL SIGNIFICANCE OF OATHS AND ENGAGEMENTS 14-62 (1999). English practice, in this regard, put loyalty oaths to work in much the same 390 CONSTITUTIONAL COMMENTARY [Vol. 20:387 this sort of managerial deployment-"but no religious Test shall ever be required...." 8 This oath, moreover, is an obligation im- posed only on federal and state officials. The most important English oaths purported to test the general population, or at least parts of it; the oaths frequently put to use in America dur- ing the Revolution also served as a means for scrutinizing the al- legiance of suspect members of the public at large.9 The article VI oath also requires only a terse pledge "to support this Consti- tution." The oath itself thus identifies no "central tenets" of con- stitutional faithl; it would seem, at least at first reading, pre- cisely to invite the sort of jesuitical casuistry that had put in question the usefulness of the English reformation oaths." The article VI oath, in first draft, imposed its obligation only on state officials."2 It provoked a suggested amendment aimed at obliging federal officials to respect state constitutions. Such an added duty, we might well think, would have substantially com- plicated the workings of the Supremacy Clause. 3 The final ver- sion of the article VI oath did not create this risk; it requires only a promise "to support this [federal] Constitution." Its extension to encompass federal officials also, if it was meant to mollify state officials, would seem to have done so by adopting a princi- ple of equal suspicion, in effect declaring "We trust no govern- ment officials 'to support this Constitution."' Why, though, was the oath left so empty? The drafters could not have thought, could they, that the Constitution was entirely unambiguous? way that Augustus did, in the Roman constitutional crisis of 32, invoking the famous all- Italy oath of that year as proof of his authority.