The office of the oath.

• Jurisdiction: United States
• Author: Gudridge, Patrick O.
• Date: 22 June 2003

There is little difficulty, Alexander Bickel declared, in concluding that the Constitution takes precedence in cases in which the Constitution and congressional legislation conflict. Whether, or in what circumstances, federal judges should assume the responsibility of deciding if there is such a conflict is a separate and ultimately more important matter. Marbury v. Madison therefore "begged the question-in-chief" (1):

[A] statute's repugnancy to the Constitution is in most instances not self-evident; it is, rather, an issue of policy that someone must decide. The problem is who: the courts, the legislature itself, the President, perhaps juries for purposes of criminal trials, or ultimately and finally the people through the electoral process? (2) None of Chief Justice Marshall's arguments persuaded Bickel that active involvement of judges in constitutional interpretation is in any sense necessary. It "may be possible; but it is optional." (3) The fact that federal judges take oaths to support the Constitution, a matter of considerable relevance for Chief Justice Marshall, was--it seemed--especially beside the point:

This same oath ... is also required of "Senators and Representatives, ... Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitution. On one reading, the consequence might be utter chaos--everyone at every juncture interprets and applies the Constitution for himself. Or ... it may be deduced that everyone is to construe the Constitution with finality insofar as it addresses itself to the performance of his own peculiar function. Surely the language lends itself more readily to this interpretation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judiciary's oath to do the same, and that every official of government is sworn to support the Constitution as the judges, in pursuance of the same oath, have construed it, rather than as his own conscience may dictate. (4) Professor Bickel proceeded too quickly. John Marshall might have readily agreed that judicial constitutional interpretation is "an issue of policy"--but he may well have thought (I will argue) that the presuppositions of the oath to support the Constitution provided that policy. He might have readily endorsed the proposition that "everyone at every juncture interprets and applies the Constitution for himself"--but he probably would not have viewed this state of affairs as "utter chaos." The presuppositions of the oath implied not only authorization for constitutional interpretation but also the requisite discipline.

Are such conceptions (conceptions Marshall might have plausibly held) of any pertinence now? I address this question last. It is first necessary to sketch what he might have taken "the presuppositions of the oath" to be.

A

This is the text of Chief Justice Marshall's discussion of oaths in Marbury:

Why otherwise does it [the Constitution] direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as --, according to the best of my abilities and understanding agreeably to the constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. (5) The constitutional oath to which Marshall refers is, of course, the oath required by Article VI, section 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution: but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. (6) Why make much of this oath? Oaths of allegiance had played a prominent part in English constitutional practice since at least the reign of Henry VIII. But their use was, more often than not, linked with reformations of relationships of church and state. Administration of oaths, usually selective, was a way of testing for anti-establishment dissent, thus inhibiting it, or advertising the (seemingly) small number of dissenters in a particular place at a particular time. (7) The article VI oath, by its terms, bars this sort of managerial deployment--"but no religious Test shall ever be required...." (8) This oath, moreover, is an obligation imposed only on federal and state officials. The most important English oaths purported to test the general population, or at least parts of it; the oaths frequently put to use in America during the Revolution also served as a means for scrutinizing the allegiance of suspect members of the public at large. (9) The article VI oath also requires only a terse pledge "to support this Constitution." The oath itself thus identifies no "central tenets" of constitutional faith (10); it would seem, at least at first reading, precisely to invite the sort of jesuitical casuistry that had put in question the usefulness of the English reformation oaths. (11)

The article VI oath, in first draft, imposed its obligation only on state officials. (12) It provoked a suggested amendment aimed at obliging federal officials to respect state constitutions. Such an added duty, we might well think, would have substantially complicated the workings of the Supremacy Clause. (13) The final version of the article VI oath did not create this risk; it requires only a promise "to support this [federal] Constitution." Its extension to encompass federal officials also, if it was meant to mollify state officials, would seem to have done so by adopting a principle of equal suspicion, in effect declaring "We trust no government officials 'to support this Constitution.'" Why, though, was the oath left so empty? The drafters could not have thought, could they, that the Constitution was entirely unambiguous?

B

It is clear, at least, that John Marshall wrote as though there was a point to the oath, as though it proved something, passage of some sort of "Test," a matter (whatever it was) of importance for judges.

The high pitch of his language in Marbury is striking. He uses three rhetorical questions and an exclamation in the course of seven sentences (excluding the expository paragraph quoting the legislatively-imposed oath). Terms like "immoral," "solemn mockery," and "crime" jump from the page. All of this emphasis, it appears, serves to underscore the proposition, put immediately previously, that "it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." (14) The key phrase, obviously, is "rule for the government of courts"--it reappears in the penultimate paragraph in the sequence; if the Constitution "forms no rule for ... government" for "a judge" than the oath "becomes ... a crime," "is worse than solemn mockery."

What does "rule for ... government" mean? Marshall equates "court" and "judge." It is as individuals that judges are governed. (15) An earlier sentence makes this conclusion obvious: "This oath certainly applies in an especial manner, to their conduct in their official character" (by implication, applies to unofficial conduct as well--and thus governs judges as individuals). How is it possible for individuals to violate the Constitution--and thus to oblige themselves to refrain from violating the Constitution--when acting unofficially? Section 3 of the Fourteenth Amendment supplies one later answer. Insurrection or rebellion are plainly not official acts; but they are, it seems, violations of the oath to support the Constitution. Insurrection or rebellion also likely constitute treason, of course. "Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort." Article III, section 3, is broader, is not limited in application only to public officials, to oath-takers. Still, for federal or state official in particular, though, we might take treason to be an (the?) obvious example of failure to support the Constitution.

Supposing insurrection or rebellion or treason in general to be examples of breaches of the constitutional oath--does this mean that other such failures are of more or less equal moment? This would not have to be the case, of course. But something akin to this equation seems to play a part in Chief Justice Marshall's formulations. Or at...