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Thursday, August 04, 2011

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.

Posted by Patrick Luff on August 4, 2011 at 08:47 AM in Law and Politics | Permalink


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I think Oaths plays a very important role in any job.

Posted by: ReturnMan Player | Sep 19, 2019 1:19:04 PM

Although it seems Professor Friedman has retreated somewhat, the point of his post is a powerful one. There are a variety of ways to teach effectively, and some of them are visual.

Posted by: run 3 | May 21, 2019 11:56:36 PM

There may be situations where the premise I've mentioned would be modified by other premises. For example, if supporting a law one personally thinks is unconstitutional is necessary to avoid a constitutional crisis, then a second premise ("unless doing so creates an even greater threat to the Constitution") might modify the basic premise ("uphold what you think the Constitution requires"), with the result that the conclusions you posit follow only if you deny the applicability of the second premise.

Posted by: Patrick Luff | Aug 5, 2011 11:12:15 AM

I guess I am challenging your premise, or at least the absolute application of it that you envision. It would imply that the President should just enforce those laws he personally views as constitutional and decline to enforce those laws that he personally views as unconstitutional, quite regardless of what anyone else thinks. It would imply that a legislator should impeach the president for declining to enforce a law that the Supreme Court has found unconstitutional, if the legislator thinks that the decision is wrong. If the results are this absurd, the premise is probably wrong.

Posted by: TJ | Aug 5, 2011 3:36:29 AM

TJ--we may disagree on what an oath to support and defend the Constitution requires. If you accept the premise that the oath requires legislators to act based on their own subjective beliefs, which I did for the sake of my argument, then I don't see how a legislator can act consistently with those beliefs while upholding the oath taken, even where the substituted beliefs are those of his constituents.

Posted by: Patrick Luff | Aug 4, 2011 8:19:09 PM

I have no doubt that the switch is done in bad faith and is therefore improper (though such bad faith switching is done by both sides), but I question your theory that members of Congress should always follow what they personally believe to the Constitution to require. Surely you wouldn't apply that theory if the Supreme Court had made a pronouncement (e.g. it holds Law X unconstitutional, Member A disagrees and thinks that Law X is perfectly constitutional, and Member A votes to impeach the president for failing to enforce Law X; or even more extremely if the politician is the President himself and pulls an Andrew Jackson). So why can't a member defer to his constituents' interpretation of the Constitution--if he does so consistently and in good faith?

Posted by: TJ | Aug 4, 2011 7:55:17 PM

I would think the only means of enforcement would be by the legislators either censuring or expelling the offending party, although I'm not suggesting that this would or even should happen in most cases.

Posted by: Patrick Luff | Aug 4, 2011 2:24:01 PM

If you take this entire premise as true, one would then have the problem of enforcement. Since legislators are immune from any civil action while doing their jobs, that would then implicate criminal prosecution by politically unbiased prosecutors.

If thinking that these hypothetical prosecutors would be the modicum of good sense in choosing whom to prosecute, I would submit the case of Georgia Thompson who was a civil servant that oversaw procurement for a state. She was found guilty of violating a felony bribery law because she received the benefit of a $1,000-a-year raise for doing a good job, which the prosecution linked to her giving a large contract to the lowest bidder. http://tiny.tw/8on. "Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch." Judge Easterbrook.

The chilling effect that the threat of criminal or even civil consequences would have on legislators would be far worse than the status quo.

All activity in the U.S. is already being over-criminalized at an alarming rate.

Posted by: Justin | Aug 4, 2011 2:07:54 PM

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