Originalism

[Volokh, Eugene]

               Interesting.  Maybe naturalized citizens (at least ones naturalized as adults - I was 14, and I don't think I had to take it) would in principle be oath-bound to oppose secession or an extra-Article-V constitutional convention.

               I wonder, though, what the Framers said about the oaths of loyalty to the King that I expect some of them had taken.  Was there some understanding of implicit conditions on oaths at the time?  Though I realize that we may be getting beyond constitutional law as such.

               Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of William Funk
Sent: Thursday, February 11, 2010 8:21 PM
To: 'Scarberry, Mark'; conlawprof at lists.ucla.edu
Subject: RE: Originalism

Here's the oath, which is contained in the Homeland Security regulation 8 CFR 337.1:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

Bill Funk

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, February 11, 2010 8:02 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Originalism

To follow up, perhaps someone can give us the form of oath taken by naturalized citizens. I presume that is a lifetime oath, absent renunciation of citizenship.

Mark Scarberry
Pepperdine

________________________________
From: Scarberry, Mark
Sent: Thu 2/11/2010 7:57 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Originalism
In response to Eugene:

Quite possibly yes; we would be oath-breakers. But for most of us the kind of failure that would require us to support an extra-constitutional replacement of our government would have to be severe. We then would have to consider whether oath breaking was the lesser of two evils. (Not, for Patrick O'Brian fans, the lesser of two weevils.) Perhaps we would conclude that the Constitution which we had given our oath to support was no longer functionally the controlling document with respect to the existing government. Such a conclusion might lead us to believe that there was no constitutional government in place that was entitled to the benefit of our oath. Under those circumstances, including presumably the inability to invoke the built-in processes that allow for amendment of the Constitution, we might conclude that the constructive conditions (oh no! contract law!) that qualify our commitment to the Constitution had failed.

This then takes us back to the question of the degree of fidelity we owe to the Constitution, a question on which my thinking was heavily influenced several years ago by Sandy's book, Constitutional Faith, which I should get out and re-read before my remarks stray too far into foolishness.

Mark Scarberry
Pepperdine

________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 2/11/2010 2:13 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Originalism


        Hmm -- so lawyers who think it's time for a new Philadelphia-1787-like Convention, to create a new constitutional government from scratch, would be oathbreakers to try to accomplish this?

        Eugene


> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu]
> Sent: Thursday, February 11, 2010 12:34 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Originalism
>
> Most of us, and many office-holders, have taken oaths as lawyers (not
> required by the Const.) which are not time limited.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, February 11, 2010 12:00 PM
> To: 'conlawprof at lists.ucla.edu'
> Subject: RE: Originalism
>
>
>       I assume that oath is just for sitting government officials,
> though, right?  Or is the theory that once an official takes an oath, he
> may not for the rest of his life endorse (for instance) a new
> extra-article-V constitutional convention, a la Philadelphia 1787, that
> is not consistent with the current Constitution?
>
>       Eugene
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Christopher Green
> > Sent: Thursday, February 11, 2010 8:47 AM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: Originalism
> >
> > We've probably had this conversation before, but of course the
> > Founders can bind us, if they can convince us to take an oath to be
> > "bound" by "this Constitution," per Article VI.  See
> > http://ssrn.com/abstract=1227162.  If my op-ed today were somehow able
>
> > to command the oaths of the denizens of 2240, that'd do the trick, I
> think.
> >
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