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Monday, July 13, 2015

Re-evaluating the constitutional oath

What we do when we make promises and what it means are both interesting and important questions, so when I saw Will Baude’s review of Richard Re’s forthcoming Promising the Constitution had the title “The Power of Promises,” I read Richard’s article straightaway. The short version is I’m a bit more skeptical of Richard’s claims than Will is, but I suspect my skepticism about the larger project (à la Mike Seidman) is doing some of that work.

 Since Will already did a nice job recapping Richard’s piece, I’ll just do a brief summary here.

 What force does the Constitution have on public officials? Why should they abide by it? Uphold it? Ever even look at it? The answer “because the Constitution tells them to” simply begs the question. In Promising the Constitution, Richard argues that the answer lies in the oath public officials take. By swearing to support the Constitution, public officials are making a promise to the public to uphold and confine themselves to the Constitution, as the public understands the Constitution at the time the oath is taken. And, because promises have moral force, such officials thereafter incur a moral duty to abide by “the Constitution” (where “the Constitution” means the minimum public meaning of the text Constitution).

 My first reaction when reading this was one of suspicion. It’s the Constitution (the textual thing) that provides the Oath Clause so to say taking the required oath is what creates a duty for officials to abide by it struck me as either circular or bootstrappy. Richard has at least two related responses. First, the Oath Clause “invite[s] its reader to adopt a particular moral relationship with ‘the Constitution.’ [And] [i]f that invitation is accepted, then the otherwise inert Constitution comes alive with moral consequences.” Second, according to Richard, the public demands officials take the oath, so we should think of the oath as part of the conditional exchange – the official gets power if and only if they commit to uphold the Constitution.

 The first response (nobody makes you promise but if you do there are moral consequences) seems to mean that the public official has made a commitment to herself to uphold the Constitution, as she understands it. The text invited her to commit to uphold it and she did so. There’s no requirement that that commitment be made to someone else. Given that, why understand the official to be promising to uphold a particular public meaning of the Constitution? I take it Richard can respond to this and does so with his second response, but there again I have some questions.

 The second response (the promise is a quid pro quo with the public for power) seems to only work if (1) the public (again, whatever that means) actually does demand officials make an oath to uphold the Constitution and (2) that demand takes place within a democratic system. If the system is not democratic, then there is no actual quid pro quo. And, for those who believe democracy necessary for political legitimacy, the whole project seems to crumble.

 Starting with (2), Richard responds by “situat[ing] the oath within the overall democratic structures of the United States.” A democratic structure that, he believes, is one where “Americans are fully capable of organizing themselves in opposition to what they perceive to be an immoral regime – yet there is presently no significant resistance to the oath.”

 I find this response unsatisfying on two fronts. It seems like Richard assumes we have a well functioning democracy, where the system is responsive to public demands and the public is sufficiently engaged and educated such as to articulate and organize around them. Perhaps this is true but I take it many would disagree and question the democratic legitimacy of our current system. Because I take it Richard thinks democracy a necessary precondition for the oath to be legitimate, or at least to constitute the sort of quid pro quo with the people he imagines, more will need to be said here. Second, for those who think our entire system enacts deep structural inequalities, I’m not so sure they would find it obvious that even when Americans do think a regime immoral they are so obviously “fully capable” of organizing themselves in ways to fix it.

 As for (1) (that the public demands fidelity to the public meaning at the time the oath was taken), this seems a contested empirical claim. Another perspective is that people are committed to substantive ends first and tools (be they theories of interpretation, arguments about the moral force of different promises, etc.) second.  To the extent that’s right, the public does not demand fidelity to the minimal public meaning of the Constitution at the time the oath was taken if that means abiding by that meaning instead of doing what they think would actually be for the good. A slightly modified version of an example Mike Seidman made back in 2012 helps make the point:

 Imagine the President reaches a considered judgment that course of action x is the best for the country. At just that moment, someone bursts in the room with new information. It turns outs that when the President took the oath, the “minimal public meaning” of the Constitution would find that course of action unconstitutional. However, today not only the President but a sizeable chunk of Americans (let’s say the majority) also think x best. Is it even remotely rational that the President should change her mind because of this divination about public meaning?  Do we really think the public would rather the President not x?

 For most people, I suspect the most persuasive argument for the moral importance of promissory fidelity is a consequentialist one. That is, the reason most people want other people to keep their promises owes to the fact – if and when it is a fact – that the institutions of promise-making and promise-keeping conduce to our general welfare and that that promise in particular does as well. If that’s right, the only question officials have to ask is whether (1) the specific institutions of oath-making and oath-keeping which surround the constitution conduce to our welfare or not (which, by the way, might avoid some of the democratic difficulties) and (2) even if the answer to (1) is at least sometimes yes, whether in any particular case the goods achieved by breach justify deviation.

 Nonetheless, for those of us who do take promising seriously and yet think the oath today is understood as more of a formalistic ritual than a real promise, there are reasons to be concerned. A meaningless oath may hurt the institution of promise making. And, we are once again left with the question of why the Constitution, whatever it is, has any grip on us at all. 

Posted by Heather Whitney on July 13, 2015 at 03:18 PM | Permalink


It's nice to see a skeptical take from somebody who nonetheless takes promises seriously. But I wonder about the empirical claim that the public doesn't want officials thinking about their oaths.

I suppose it is testable. It it's true, future public officials could simply refuse to take the oath, explaining that they intend to do the right thing instead. And we should expect such a refusal to be welcomed by the public -- or at worst ignored.

That would present a neat test of these claims, yet somehow I do not expect it to happen.

Posted by: William Baude | Jul 14, 2015 8:55:40 PM

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