An anecdote about oaths

Tue Feb 16 12:47:08 PST 2010

I have to ask again. What difference does an oath make if not to promise to abide by the decisions of those who have final authority to say what the law means.An oath to uphold one's individual view of the law is not much of an oath (other than maybe an oath not to take bribes etc.)

As an aside, anyone who knows me well knows that I am no believer in judicial supremacy. In fact, I don't even believe the Court is a real court . . . but that's for another day.

Eric

>>> Edward A Hartnett <Edward.Hartnett at shu.edu> 2/16/2010 3:42 PM >>>
To my mind, Eric's argument simply assumes judicial supremacy.  If one is truly a constitutional protestant, it is quite clear that there is a difference between an oath to the constitution and an oath to a court's interpretation of the constitution -- just as anyone who does not assume legislative supremacy readily acknowledges that there is a difference between an oath to the constitution and an oath to legislature's interpretation of the constitution.  The former is not meaningless.  Indeed, if it is meaningless, than so too is a Supreme Court justice's oath to the constitution, for surely a justice of the Supreme Court does not take an oath to the constitution as interpreted by the Supreme Court.  

If members of Congress had adopted Eric's view of their oath, how would we have ever enacted federal laws against child labor?  See, e.g., Hammer v. Dagenhart, 247 US 251 (1918); Bailey v. Drexel Furniture. 259 US 20 (1922); Louis Fisher, The Curious Belief in Judicial Supremacy, 25 Suff. L. Rev. 85, 108-09 (1991) (discussing success of congressional "fortitude in challenging the Court on the question of regulating child labor").  Indeed, the Supreme Court itself has noted that sometimes Congress must pass legislation premised on disagreement with the Court's opinions in order for the Court to "extricate itself from error."  Helvering v. Griffith, 318 US 371, 401 (1943).

Edward A. Hartnett
Richard J. Hughes Professor 
     for Constitutional and Public Law and Service
edward.hartnett at shu.edu 
Phone: 973-642-8842
Fax:  973-642-8546
SSRN author page: http://ssrn.com/author=253335 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
Sent: Tuesday, February 16, 2010 3:04 PM
To: Calvin Johnson; Lino Graglia; Sanford Levinson; conlawprof at lists.ucla.edu; crgreen at olemiss.edu 
Subject: RE: An anecdote about oaths

Professor Graglia wrote:  "I think legislators can disagree with a Supreme Court interpretation, and should be permitted to act to have the Court reconsider the issue."

So what does it mean to take an oath to uphold the Constitution and laws? Legislators can act as long as their vote is consistent with his/her views of the Constitution? Can they pass a law that obviously violates binding state law as articulated by a State Supreme Court, consistent with their oath? Can they act in a way inconsistent with a clear injunction by a lower court if they think the injunction is illegal? I think your theory leads to a world where the oath means nothing, which is what I said to the Ga. Legislative Committee I was in front of. Maybe that is or should be our world, but then government officials shouldn't take oaths.

Best,

Eric

>>> Lino Graglia <LGraglia at law.utexas.edu> 2/15/2010 5:04 PM >>>
I think legislators can disagree with a Supreme Court interpretation, and should be permitted to act to have the Court reconsider the issue.

Lino

-----Original Message-----
From: Eric Segall [mailto:esegall at gsu.edu] 
Sent: Friday, February 12, 2010 2:37 PM
To: Calvin Johnson; Sanford Levinson; conlawprof at lists.ucla.edu; crgreen at olemiss.edu 
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

Another oath story. I testified last year in fromt of a committe of the Ga. legislature against a Ga. law defining life as beginning at fertilization (it never passed). The bill was admittedly proposed to become a test case to overturn Roe/Casey. I suggested that it would violate the oaths of Ga. State Legislators to vote for a bill they knew was unconstitutional.

My testimony was not greeted well by several of the legislators . . . .

Was I wrong?

Eric Segall
Professor of Law
>>> Sanford Levinson <SLevinson at law.utexas.edu> 02/12/10 3:31 PM >>>
I had a student a number of years ago who took Constitutional Law with me and was persuaded by my argument that the Constitution in some sense can be reduced to Article V and then the question is whether there are any limits to amendment via Article V.  E.g., could we reinstitute slavery or establish a theocracy so long as 2/3 or each house of Congress proposed and 3/4 of the states ratified such changes?  If that is the case, why would anyone ever swear binding fealty to such a Constitution?  (Jack Balkin and I discuss this in the context of Kurt Godel's reluctance to become a US citizen, which required "attachment to the principles of the Constitution," at the conclusion of our essay on "Constitutional Crises.")  

So, when it came time to sit for the Texas Bar examination, the first thing the Bar required was filling out a form in which the applicant promises to be faithful to the Constitution.  My student asked them what their theory of the Constitution was, since his answer depended on their answer.  Some Constitutions deserve fealty, others do not.  As one might expect, they were not amused by this response and ultimately refused him the right to sit for the examination.  One might suspect that he really didn't want to be a practicing lawyer anyway, but assume he did.  Should I have advised him to sign the damned piece of paper with the mental reservation that "the Constitution means exactly what I say it is, which includes provisos that would assure that it could never become an implement of evil," even though the Bar almost certainly would assume that he is, for example, promising fidelity to what is ordinarily termed "constitutional law"?  

I am, of course, also interested in what it means to "sign the Constitution" at places like the National Constitutional Center in Philadelphia, which does indeed invite visitors to do so after touring their exhibit and walking through "Founders Hall."  I refused to do so, since I think we have a defective Constitution.  Was I wrong, or should I have simply said, in effect, that I'm signing the "Constitution of my dreams," as amended through Article V or, since I am an Ackermanian/American, well outside of Article V?  

Perhaps the real point is that no one really takes oaths all that seriously, since all sorts of Wittgensteinian "mental cramps" are generated if one really tries to figure out what an oath genuinely "means."  

sandy
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