Oaths of Office, and Goodwin Liu Revisited

Thanks to Dan for allowing me to guest blog this month. With my first post, I'd like to address a question that's been with me for a few months: are there cases where Members of Congress violate their oaths of office by changing positions?

The argument goes something like this: Members of Congress swear to "support and defend the Constitution," which at the very least means they have an obligation to support the Constitution as they interpret it. Members signal their understanding of the Constitution both through voting behavior and through public statements, so when they adopt inconsistent positions on constitutional questions, there is at least a prima facie case that they have violated their oaths of office. This line of thought occurred to me in May when the Senate considered the judicial nomination of Goodwin. Some Senators had previously said that filibustering judicial candidates was unconstitutional, yet they still voted against cloture in 2011.

There are at least three rebuttals to this basic argument. First, legislators may change their minds. This should be encouraged, so long as the change of mind is in good faith. Otherwise, the deliberative element of government could be sharply reduced, to the detriment of the legislative product. But there are several factors that might make us doubt that a particular change of heart is good faith:

(1) where several Members change their opinions but they vehemently supporedt their prior positions, especially when the change occurs in a direction that we can describe as politically expedient (even though we might expect some baseline percentage of representatives to change their opinions on particular issues).

(2) where there are no new data that would occasion a widespread change of heart among the Members. We might expect, for example, that a new study on the dangers of a particular chemical might result in larger than average changes in legislative opinion on a particular issue, but there are no commensurate data increases that would warrant the change of attitudes in most cases.

(3) where legislators change their minds about broad constitutional issues as opposed to narrow policy issues. This is related to the second point, because the attitudinal changes are likely to come, if at all, from new data salient to the issue at hand. These factors make me question whether the Senators who filibustered Liu’s appointment, for example, had a good-faith change in their understanding of the Constitution.

Second, the legislators may have a particular, fixed belief in the meaning of the Constitution, but rather than expressing their beliefs through their voting behavior and public statements, they may act and vote in the way they think is most likely to get them reelected, or more innocently, in the way that they think the majority of their constituents would want them to. Such a divergence between personal belief and voting behavior is acceptable for pure policy issues. But when constitutional issues are implicated, such an activity would be contrary to the oath taken, which, at its minimum, is an oath to act consistently with what the oath-taker believes the Constitution requires. There would be nothing wrong with a legislator supporting a tax increase he thinks is a bad policy choice, but which he knows his constituents overwhelmingly support. On the other hand, even if his constituents supported the measure, he would be under a duty based on his oath to oppose the tax if he thought it was unconstitutional. As a result, those Senators who have a fixed view on the constitutional requirements of advice and consent but who also voted inconsistently with that belief based on their constituents’ wishes or because they believed that their voting pattern would be politically popular violated their oaths, because at least one of their voting positions was necessarily contrary to their own beliefs about what the Constitution requires. 

Finally, the legislators may never have actually formed an opinion about the constitutionality of a particular issue—they may simply not know whether something is constitutional or not. In this case, Members do not violate their oaths by acting and voting inconsistently, but perhaps they do something even worse. Where the issue is a hot button, they misrepresent themselves by taking categorical positions on which they in fact have no opinion, but also use the Constitution to shield what are in fact unprincipled positions (unless you count the desire to be reelected as a principle). In doing so, legislators obstruct meaningful discussion on the issue at hand.