Balkinization: Of Oaths, Honor, and small-r republican Virtue

Of Oaths, Honor, and small-r republican Virtue

Mark Tushnet

Earlier this evening I tweeted that, though it wasn't the most important question now, one could ask whether an honorable person would accept a nomination to the Supreme Court at this point (indeed, on reflection I wonder whether an honorable person would accept any nomination by President Trump at this point). The "at this point" is of course crucial; early in the Trump presidency there was a spate of blogging and the like on the question of whether an honorable person could then accept an appointment, and my sense of the discussion (among those who thought there was a genuine question -- not everyone did, of course) was that, though it might be a close question, the answer was, Yes.

What I found striking in the responses to my tweet was the following reaction: Invoking the very idea of honor was a mistake. One subset here was that no one who Trump would nominate could possibly be an honorable person (so of course whoever he nominated would accept). I don't think that's true of everyone on the now rather long list he's offered us (though I'll avoid the risk that invidious inferences would be drawn by refraining from naming some who i believe to be honorable [ex ante -- my views would certainly change if one of them were indeed to accept a nomination]).

More interesting were the reactions of puzzlement that I would bring the concept of honor into these discussions. I think that's because some people simply don't think that we have available to us such a concept today, at least with respect to public service. So, for example, we almost never see resignations over matters of principle (a few well-known ones come to mind in administrations from Carter to the present, but fewer than there "should" have been).

If so, that seems to me to have some bearing on recent discussions of the implications of taking an oath to uphold the Constitution. I find the argument that the oath requirement entails originalism quite bizarre, but not so with the argument that taking an oath is a serious business that signals a certain kind of commitment to acting for the public good (not that the mere taking of the oath can do so, because cynics or other people with their fingers crossed can take the oath and we observers would be none the wiser).

Having written the preceding paragraph, I now note its oddity. The unavailability of a notion of honor, if it is unavailable, tells us a lot about the possibility of small-r republicanism in today's United States, so focusing on the oath is pretty narow. Small-r republicanism is all about cultivating citizens (I know, I know...) who approach their public roles as citizens with public mindedness ("civic virtue," on one understanding).

We all can tell stories about why civic virtue with its attendant notion of honor has declined (if it has). For me, there are several interesting question. (1) Do we have a widely available notion of honor in connection with public life? (2) If not, why not? (3) If so, can/should anything be done to rebuild it? (4) If so -- and the answer to #2 might tell us that the task is impossible -- what can we do? In particular, are there institutions on offer that could help? And -- to do the mandatory self-promotion -- that's dealt with in the concluding chapter of a forthcoming book with Bojan Bugaric, "Power to the People: Constitutionalism in the Age of Populism" (Oxford University Press, late 2021).

Posted 11:59 PM by Mark Tushnet [link]