Does the Oath of Office Bind Constitutional Interpretation? | Opinion

A minor kerfuffle recently erupted in the world of academic constitutional theory over whether two ideas might be connected. The first is originalism: the idea that interpretation should recover the meaning expressed by the Constitution's text in its original context. The second is the Constitution's Article VI oath, which binds current officeholders to "this Constitution."

Several originalists, including me, have long argued that what we think about the oath affects how we interpret the Constitution. When officeholders today swear an oath to support "this Constitution," they commit themselves, however unwittingly, to its original meaning. Last week, non-originalists started paying attention. Harvard Law School's Cass Sunstein—by several measures, the most-cited law professor in the world—claimed that connecting the Article VI oath to originalism is "horrible," "ugly," "vicious," "shameful," "unpleasant" and amounts to a "howl of rage."

Could Sunstein be right? To his credit, he takes the charge of constitutional infidelity seriously. Promise-keeping is always very important, and oaths especially so. It is also important to acknowledge, however, as I have repeatedly, that scholars and officeholders can make honest mistakes about the nature of the Constitution. Imperfectly satisfying one's commitments, even constitutional commitments, is not a crime—or even a near-crime. Impeaching everyone who honestly misunderstands the nature of the Constitution is, of course, a terrible idea.

But errors about the nature of the Constitution are not trivial. The oath is not a potted plant. It was written to have real bite in how officeholders go about their business: to tie them down to a particular Constitution—"this" one.

What exactly is "this Constitution," then? Not just a collection of ink or pixels on a computer screen. After all, the very same ink or pixels could be used to express anything at all, given the right context and back-story establishing a code. "This Constitution" is instead an expression of meaning. But what meaning? The dispute over constitutional theory has to do with how to attach meaning to the bits of ink on individual copies of the Constitution. Originalists attach meaning based on what the text expressed in its original context, while fans of a living Constitution think meaning is attached to the text over time.

Which of these represents the real "this Constitution?" Getting from the oath to originalism takes two steps, and it is important to see that neither step can do it alone.

Step one is about how people talk about our Constitution today. Officeholders claim, with some regularity, that they swear the same oath, to the same Constitution, that George Washington once did. They likewise say regularly that America has the oldest written national constitution in the world (though Massachusetts and San Marino sometimes contest the claim).

Does that fact about current culture—the fact that "this Constitution," as used today by oath-takers, is old—mean that original meaning is binding? Not by itself. It is possible that George Washington could also have sworn an oath to a living constitution. The Constitution could be both old and living. Many critics of originalism say the Constitution has always had gaps that Congress, the Supreme Court, the president or states could fill in—and not by making judgments about what the Constitution already contains, but by co-authoring the Constitution like later participants in a "chain novel."

If our Constitution today is genuinely George Washington's Constitution, though, it does mean this: If the Constitution is alive today, it must have been alive at the time of the American Founding, too. A Constitution could not begin by having an inherently unchanging meaning, and then suddenly become a Constitution whose meaning could change. That would be turning into a different Constitution, and today's officeholders deny that.

Step one thus denies that the Constitution has become alive since the Founding. But was it alive even then?

Step two is a closer look at George Washington's Constitution. On its own, of course—as Sunstein himself notes—no document embedded in the sands of time can bind us unless we use it to bind ourselves. That is only to say that step one, equating our Constitution with the Founders' Constitution, is also essential.

But we also have to look at how the Constitution presents itself. There are several clues that the Constitution presents itself as a text expressing meaning in its original context, rather than a context stretched out over time. Look first at the first-person pronouns. The constitutional authors are "We the People," and the action that the authors take—"do ordain and establish this Constitution"—obviously connects it to Article VI. But notice two other first-person references. The Constitution is established to "secure the blessing of liberty to ourselves and our posterity." "Ourselves"—the constitutional authors—does not include later generations, but is explicitly distinguished in the Preamble from "our posterity."

U.S. Constitution on display in Congress
U.S. Constitution on display in Congress Andrew Harnik-Pool/Getty Images

A second clue is the little word "now." One of America's first steps in overcoming the wickedness of the enslavement of African-Americans, of course, was the Northwest Ordinance, passed by Congress on July 13, 1787, while the Philadelphia Convention deliberated secretly. The word "now" protected the Ordinance: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." Ohio became a state in 1803 (in other words, before 1808) and Congress, at the time, could make it slavery-free because Ohio was not a state "now existing" in 1787 like Virginia or South Carolina. But that means that the Constitution's text expressed meaning in the context of its initial adoption, and not later on.

A third clue is a rule very important to Washington himself, born a British subject: The President must be a "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution." Again, the process of authoring and adopting "this Constitution" is limited to the Founding. The adoption of the Constitution happened at a particular time, and not over generations.

Much more, of course, could be—and has been—said about oaths, our oath-taking culture and how the Founders' Constitution presents itself. But serious thinking about the relationship of interpretation and constitutional fidelity should be encouraged—not subject to a taboo.

Christopher R. Green is a professor of law at the University of Mississippi School of Law.

The views expressed in this article are the writer's own.