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Monday, June 18, 2018

"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath"

A commenter here recently observed that one of the key functions of a legal academic blog like this is to promote one's articles. Right they are. I've been very slowly working, on and off for the past ten years or so, on what I hope will eventually be a book on oaths and the Constitution. Since an oath means little without the underlying values and incentives to undergird it, it is necessarily and maybe primarily a book about the role of honor in American political culture and constitutional law: both a historical examination and an effort at reconstruction and revision of the concept. To shine the spotlight half away from myself for a brief moment, I wrote recently that a growing number of people have concentrated on issues connected to honor, oaths, office, and similar concepts:

General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.

Here is a new piece that is a small part of that project, titled "The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath." It's a contribution to a wonderful roundtable that was held recently to discuss Randy Kozel's recent book, Settled Versus Right: A Theory of Precedent.  The contributions include pieces by Alli Orr Larsen, Jason Mazzone, Stephen Sachs, Larry Solum, and Fred Schauer, among others, with a response by Randy. The roundtable was hosted by the University of Richmond's law school and coordinated by Kurt Lash and Jason Mazzone. The contributions will appear in Constitutional Commentary. They are short, which in my case makes the piece unusual and, I hope, less tedious than usual, although it does mean my piece is largely and merely an introduction to some of the concepts that interest me in this area rather than a full explanation or defense. (I have a longer piece on honor, oaths, and the rule of law that, after much delay on my part and extraordinary patience on the editors' part, should appear in the Canadian Journal of Law and Jurisprudence in time.) Here's the abstract. Enjoy.

This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality.

In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office.

The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus. 



Posted by Paul Horwitz on June 18, 2018 at 09:42 AM in Paul Horwitz | Permalink