An anecdote about oaths/gettingback to original post

Sean Wilson whoooo26505 at yahoo.com
Wed Feb 17 10:43:24 PST 2010


... there are two issues here: (a) what is your theory of constitution; and (b) what is your theory of law.

It seems that the trouble that started all of this was the mistaken idea that an oath is independently (and legally) efficacious. What I recall an oath to be is a social ritual of some sort ("Do you swear to tell the truth and whole truth .. etc."). Compare: the cutting of the hand to make one a "blood brother." In medieval times, one might reify these gestures and attribute something metaphysical to them. In modern times, and especially in legal contexts, these behaviors are merely ceremonious -- they christen or mark the commencement of something.

Hence, the oath in the Constitution is symbolic. It says, in effect, "start your engines!" (the race is about to begin).

Regards.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html 




----- Original Message ----
From: Mark Graber <MGRABER at gvpt.umd.edu>
To: lsolum at gmail.com
Cc: conlawprof at lists.ucla.edu
Sent: Wed, February 17, 2010 10:19:19 AM
Subject: Re: An anecdote about oaths/gettingback to original post

Let's make life even more complicated.  A political figure comes to the conclusion that some action, forbidden by the Constitution, would make the country much better off.  Indeed, (and the analogies are obvious) the political figure concludes that the constitutional regime is likely to fail unless the action is taken.  Is taking that action consistent with an oath to uphold the Constitution.  Put differently, is the oath to uphold the constitution an oath to uphold the constitutional order as a whole, or every single rule in the constitution, no matter what the consequence for the whole.  (A variation on this theme.  The official discovers a contradiction in the constitution.  An act mandated by Section A is forbidden by Section B.  Is the oath worthless or does the official have an obligation to determine which section is more central to the constitution as a whole.  Walter Murphy is obviously very relevant here).

MAG

>>> Lawrence Solum <lsolum at gmail.com> 2/17/2010 10:07 AM >>>
Imagine two different oaths:

The first requires allegiance to the constitution, "even when the
courts of law shall deviate from its letter and spirit in their
pronouncements."

The second requires allegiance to the constitution, "as it shall be
interpreted by the judiciary branch."

Both would be oaths.  Actual oaths do not address this question.
There are theories of the constitution that do suggest that the
constitution itself answers this question.  Theories that emphasize
judicial supremacy would suggest that current oaths are roughly
equivalent to the second version.  Theories that emphasize
departmentalism or popular constitutionalism (and other theories as
well) would suggest that the current oath is equivalent to the first
version.

So far as I can tell, there is nothing in concept of an oath or vow
that requires either version as an interpretation or construction of
the current oath.  The semantic content of the oath does not resolve
the issue--because the question is what the constitution itself
requires.  This means that the issue is one of construction--of
determining the illocutionary effect or legal content of the
obligation imposed by the oath.



On Wed, Feb 17, 2010 at 8:54 AM, Nelson Lund <nlund at gmu.edu> wrote:
> Once again, if the oath allowed the majority in Roe v. Wade to cast their
> votes as they did, it allowed the Georgia legislators to cast their votes as
> they did. You have not pointed to one word in the Constitution that would
> justify treating these two groups of officials differently in this respect.
>
> Nelson Lund
> George Mason
>
> Eric Segall wrote:
>
> Paul and others have made good points but they don't answer the initial
> question. Some Ga. reps were in favor of a law defining life as beginning at
> fertlization. The part of Roe talking prohibiting this is still good law and
> clearly so. Moreover, to the best of my knowledge no state in the pre-roe
> world had ever passed such a law and no law like it has ever gone into
> effect in the post roe world. Roe/Casey may be overruled but the Court is
> nowhere near allowing states to define life as beginning at fertilization
> which, among other things, would have serious consequences for contraception
> as well as abortion where the life of the mother is at stake (not to mention
> fertility procedures) . So, voting for this bill would be voting for a law
> which no one in good faith could think would be delcared constitutional by
> the SCOTUS. My initial point was that, in those specific circumstances, if
> the oath allows one to vote for that kind of law, the oath means very, very
> little. And, I !
>  don't see this situation as different than the one facing Arkansas in the
> late fifties as to segregation.
>
> I may be stubborn but I stick by what I believe is a narrow position.
>
> Please someone help!!!
>
> Best,
>
> Eric
>
>
> Paul Horwitz <phorwitz at hotmail.com> 02/16/10 10:51 PM >>>
>
>
> One cite seems essential here: Philip Hamburger's Law and Judicial Duty,
> which discusses the relationship of the oath to the judicial office at
> length and in a very interesting and suggestive fashion.  A much less
> essential cite is to my own work, both with respect to judges (see my recent
> review essay, Judicial Character (And Does it Matter), in Constitutional
> Commentary), and with respect to other officials such as the President (see
> my short piece in the Northwestern University Law Review, Honor's
> Constitutional Moment).
> My short take on this very interesting question is that the oath certainly
> matters, but it is a personal oath to honor the Constitution and cannot
> depend solely on what is "clearly unconstitutional under binding law," if by
> binding law one means the decision of coordinate departments.  It *may*
> depend on that, if a legislator, say, has a good-faith understanding of her
> oath that relies that a ruling by the courts on a constitutional question
> itself becomes part of the meaning of the Constitution; a legislator with
> that understanding who nonetheless voted to pass a law that violated such
> authority would arguably be violating her oath.  But one can without much
> controversy take a less stringent view than that, and can certainly believe
> that the courts' reading of the Constitution, even if it is legally binding,
> is a mistaken reading; I think such a legislator would have a stronger case
> that she would not be violating her oath if she voted for a law in those
> circumstances, even
> !
>  if it ran afoul of some court decision.  That may be unsatisfactory to
> those who yearn for more uniform or solid answers.  But that doesn't mean
> the oath has no constraining power, unless (as many do) one thinks that
> honor is an obsolete value or that good faith is endlessly malleable or even
> illusory.  The oath can have genuine constraining value, and can serve as a
> vehicle for connecting public values and reputations with private qualities
> of character, even if the ways in which it does so are imperfect and
> unclear.
>
> Date: Tue, 16 Feb 2010 22:23:04 -0500
> Subject: Re: An anecdote about oaths
> From: stevenjamar at gmail.com 
> To: esegall at gsu.edu 
> CC: conlawprof at lists.ucla.edu 
>
> Then what does "oath to defend" mean to you if all of these things are
> permitted (subject to some modest constraints on a couple of them)?
> If I do what Obama did in the State of the Union -- criticizing the
> Constitution as interpreted by the Court, how am I "upholding and defending
> it" in "any meaningful sense of the term"?  Or is it really just so
> formulaic that I can criticize and we judge only by actions?
> Again I say that the understanding of language and "oath" is far to cramped
> and formal for meaningful constitutional discussion if one falls back on
> such rigid forms.  Words and actions matter.
> As to no. 5 -- read the case again -- it is quite clear -- I'm just using
> the language of the Court.
> Steve
>
> On Tue, Feb 16, 2010 at 10:16 PM, Eric Segall <esegall at gsu.edu> wrote:
>
> ok, one more:
>
>
>
> Steven Jamar  wrote: Surely it cannot be a violation of the oath to uphold
> the Constitution to
>
> 1.  Criticize it--OF COURSE NOT
>
> 2.  Contend it should be amended--OF COURSE NOT
>
> 3.  Contend an interpretation is wrong-OF COURSE NOT
>
> 4.  Seek to change an interpretation of it through the courts-DEPENDS SEE
> BELOW
>
> 5.  Engage in the "dialogue" discussed by the Court in Boumediene-DON'T KNOW
> WHAT YOU MEAN
>
> 6.  As a state legislator introduce a law to test a ruling one thinks is
>
> constitutionally wrong--DEPENDS SEE BELOW
>
> 7.  To call for or host a constitutional convention-OF COURSE NOT
>
>
>
> It does, however,  violate the oath to vote for legislation that is clearly
> unconstitutional under binding law and without any good faith belief that
> those who define the law will see it your way--for example, a law defining
> life as beginning at fertilization, which would have rewrote much of Ga. law
> on torts and property, and clearly will not favored by the SCOTUS any time
> soon.
>
>
>
>
> Eric
>
>
>
>
>
>
>
>
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu 
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



-- 
Lawrence Solum
John E. Cribbet Professor of Law, & Professor of Philosophy
Co-Director, Program in Law and Philosophy
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL  61820-6909
lsolum at gmail.com or lsolum at illinois.edu 

--

http://lsolum.typepad.com/legaltheory/ 
(blog)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316 
(ssrn page)
http://home.law.uiuc.edu/~lsolum/ 
(personal home page)
http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence 
(homepage at the University of Illinois College of Law)
http://www.phil.uiuc.edu/faculty/list/Solum/index.htm 
(homepage at the University of Illinois Department of Philosophy)
http://www.pbase.com/lsolum/root 
(photography galleries)

Assistant: Amy Fitzgerald
(217) 333-9115 / amfitzge at law.uiuc.edu 
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu 
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.



      


More information about the Conlawprof mailing list