"Honor, Oath, and Office"

I've put up on SSRN a short piece I wrote for my law school's alumni magazine, The Capstone Lawyer. It's a kind of introduction to a larger project--a book project, I hope, although it will have to wait in line behind several other projects--on oaths and the Constitution. The abstract is not much shorter than the piece itself, which is short--probably shorter than many of my blog posts!--and (I hope) readable. (It also has great art and some neat photos. I'm grateful to Monique Fields, who is responsible for the Capstone Lawyer and for making it look so good.) I hope readers enjoy it. Here's the abstract: 

This contribution to the Culverhouse School of Law's Capstone Lawyer magazine is a short introduction to a larger, ongoing project on oaths and the Constitution. That project seeks to examine the relationship between oaths and constitutional interpretation, and to argue for the revival of honor, suitably revised, as an essential virtue in citizenship and office-holding.

The focus here is on the intimate connection between the concepts and institutions that I call the "troika": office, honor, and the oath. Office is best thought of not simply in terms of power, and with the officer viewed merely as any individual who happens to exercise a power-wielding office at a given moment. Instead, the key feature of office is duty, and the officer is defined as much by the limits on his or her power as by its exercise.

Honor is the institution that connects the officer to his or her office. Properly understood, it has both internal and external aspects and involves more than the love of fame. Honor is the desire to be thought well of by those whose opinion ought to count, and the desire to *deserve* to be thought well of by that honor group. This "quality of character," as Sharon Krause puts it, this "ambitious desire to live up to one's code and to be publicly recognized for doing so," is essential if office-holders are to fulfill the duties of their office with virtue and excellence. And it provides the office-holder with a valuable sense of energy and agency. The character of the men and women who occupy offices thus remains an essential element of our political and constitutional order.

In our constitutional system, the device that ties individual honor to the ostensibly "impersonal" office is the oath. The oath is a linchpin that connects the individual to the office and the office-holder to the commitment to act honorably. It is imperfect, and in contemporary society both honor and oath require substantial rethinking and revivification to function properly. But the oath is not unimportant and is no mere empty ritual. Taken together, this troika of institutions--office, honor, and oath--encourage the sound and faithful performance of one's duties in a democratic constitutional republic. Thinking about the troika shifts our focus from power to duty, and from substance and doctrine to character and virtue. It helps us to see that a "government of laws and not of men" is and must be powerfully and ineluctably personal.

Comments on the larger project are emphatically welcome [via email]. I note that the subject of the oath, and of the importance of duty and character in office-holding, has given rise to a growing literature that is well worth exploring.