Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This is the second installment in my AMA. Chris Green asked a number of interesting theoretical questions. I will answer them in installments. I change the order of the questions to group together questions that are about the same basic subject.
Chris's first question is about the Article VI oath, and, indirectly, the current debate among constitutional scholars about whether the oath commits everyone who takes it to a particular version of originalism.
Chris Green:What does “the Constitution” in our present-day Article VI oaths refer to, and why? (See https://ssrn.com/paper=3441234).
JB: Article VI requires that "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution." Article II requires the President to take an oath to "preserve, protect and defend the Constitution of the United States."
I read the President's Article II oath as consistent with the Article VI oath for all executive officers of the United States. This is true whether or not you you believe that the President is an "executive officer ... of the United States," because every executive officer who works under the President must take the Article VI oath.
There are two plausible answers to your question. One is that "this Constitution" refers to the best interpretation of the Constitution (as opposed to the current interpretation). The other is that "this Constitution" refers to the Constitution as an ongoing legal and political institution and says nothing about interpretation. Let me address both possibilities in turn.
1. "this Constitution" means the best interpretation of the Constitution. Suppose you think that a particular law violates the best interpretation of the Constitution, but existing doctrine considers it constitutional; or, conversely, suppose you think that a particular law is consistent with the best interpretation of the Constitution, but existing doctrine considers it unconstitutional.
Because of your role--as a public official, for example-- you might have to obey and enforce the law as it is currently interpreted. But you might also think that you should work to change the Constitution-in-practice so that it better comports with the best reading of the Constitution. How you would do that would depend on your role in society: whether you are a judge, a legislator, or an executive official; and the rules and norms in which you must work to change things.
But the very idea that you might have some sort of obligation to move the Constitution-in-practice toward the best interpretation of it suggests that when you take an oath to defend the Constitution, you take an oath to defend the best interpretation, and not the current interpretation.
This point is similar to what Abraham Lincoln says about Dred Scott. He says that he and the people who agree with him have to accept Dred Scott as law with respect to the parties in the case, but that he will do what he can to change the decision-- and presumably he would continue to try to change it after he took the Article II oath of office as President. (In fact, on April 16, 1862, Lincoln signed a bill that abolished slavery in the District of Columbia. That law was inconsistent with Dred Scott.).
If an Article VI oath to protect and defend the Constitution meant only the Constitution as judges currently interpret it, this approach would quickly run into difficulties. For example, judges who take the oath would never be allowed to overturn or modify existing precedents to achieve greater constitutional fidelity. A similar argument applies to the Article II oath: Presidents would never be able to interpret the Constitution independently of the courts or argue for a change in current doctrines before the courts.
Now even though you take an oath to protect and defend the best interpretation of the Constitution, there are still limits in how, as an officer clothed with state power, you may attempt to move the country toward the best interpretation. Judges, for example, work within doctrines of justiciability and stare decisis, and judges in multi-member courts have to work with other judges who often disagree with them. Executive officers have to abide by judicial decisions that are directed against them, and so on. These role-related obligations hem in the ability of government officials to move toward the best interpretation that they are trying to protect and defend.
One could say that these role-related obligations are part of the best interpretation of the Constitution. That is, one might argue that these obligations apply to legal officials because they are clothed with state power, and they make the best sense of the Constitution's structure. In the alternative, one could say that these role-based obligations exist independent of the substance of the best interpretation of the Constitution but are nevertheless required by their roles as officials, just as when one takes an oath to do something it is understood that you take that oath against the background of other moral, legal, and professional constraints on your behavior.
2. "this Constitution" means the Constitution as an ongoing legal and political institution. The other possible meaning of "this Constitution" in Article VI is the Constitution as an ongoing legal and political institution. This reading makes particular sense given the textual connections between The Preamble, Article I, section 18, Article II, Article III, section 2, Article V, Article VI, and Article VII.
According to Article VII, until the Constitution is ratified by nine states, it does not come into effect. An oath to protect and defend "this Constitution" on September 18th, 1787, the day after the delegates to the Philadelphia Convention voted on the text, is an oath to protect and defend a particular text that contains a proposal for government. This is different than an oath to protect and defend "this Constitution" after adoption, even though the text is (essentially) the same.
What is the difference? Once the Constitution is adopted, it becomes law and sets in motion a legal and political institution. One's duty is to defend *that* legal and political institution, and not simply the text, which is just a piece of parchment. It follows that "this Constitution" can't refer simply to the text of the Constitution, or even the content of the text, because the text is the same both before and after adoption. But what one defends has changed greatly in the interim.
Once the text becomes law, it begins and becomes part of an ongoing legal and political institution, which we call the Constitution of the United States. That institution continues over many generations. What is part of that institution may change over time. And the participants' understanding of the institution may also change. Jonathan Gienapp's book, The Second Creation, argues that for the first several years or so of the Constitution's history, it was not generally agreed whether "the Constitution" referred primarily to the text, or to a set of common-law customs and understandings in which the text was embedded, like the British Constitution. Many of the debates between 1788 and 1796 concerned ambiguities in the nature of institution referred to by "the Constitution."
This reading of the Constitution as an ongoing institution is consistent with other uses of the phrase "this Constitution" in the 1787 Constitution. For example, the Preamble speaks of "ordain[ing] and establish[ing] this Constitution." This suggests that "this Constitution" is not simply the text, but the ordained and established Constitution, which is an ongoing institution.
Article V says that Congress and the States may propose amendments ... which [once duly ratified]... shall be valid to all Intents and Purposes, as Part of this Constitution." It follows that "this Constitution" does not refer to the text of 1787 but to an ongoing institution in which the text may be amended, as altered by those amendments.
This reading is also consistent with Article I and Article III. Article I, section 18 speaks of "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Since the "Powers vested" might change (and have in fact changed many times) upon subsequent amendment, "this Constitution" must refer to an ongoing institution, comprehending more than just the powers vested as of 1788. Article III, section 2 states that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." "[T]his Constitution" must refer to a legal and political institution that changes over time, and under which new "Cases" might arise, otherwise the judicial power would be unduly constricted to those "Cases arising under" the (original meaning of the) Constitution in 1788.
Under this reading, the substantive content and nature of the institution may change over time, and there might be disputes about the best understanding of the institution and the best way to carry it forward.
Here is an analogy to religion and religious identity: To be a Jew or a Catholic in A.D. 200 is not the same as being a Jew or a Catholic in 1492, or 1945, or 2020. These religions, like most religions, change over time, so too does the content of what they require of the faithful in terms of belief and practice.
Nevertheless, it makes sense to say that Abraham, Joshua, David, Ezra, Rabbi Akiva, Maimonides, Moses Mendelssohn, and a Jew living in 2020 are all Jews and that all could equally assert that they are faithful to the Torah. (The Talmud (Kiddushin 82a; Mishna Kiddushin 4:14) asserts that Abraham followed the entire Torah even before it was given on Mount Sinai!).
In the same way, one can say that St. Peter, Tertullian, Saint Jerome, St. Gregory the Great, St. Robert Bellarmine, Pope Paul VI, and a Catholic living today are all part of the same Catholic Church as the Church understands itself today. The institution continues, and is the same institution, even though its features, practices, and doctrines have changed considerably over time.
That is the sense in which we can say that we take an oath to defend the same Constitution as George Washington did, even though the institution and its practices and doctrines have obviously changed since 1789.
The current debate over the oath is a debate over theories of interpretation. The claim is that the oath requires that everyone who takes the oath commit, whether they realize it or not, to a specific theory of interpretation; namely, a commitment to the original meaning of the Constitution.
Now since I adhere to a certain conception of original meaning (the thin theory), this claim does not affect my views, unless, of course, the advocates claim that the oath commits us to a very specific version of original meaning that is inconsistent with the thin theory, which I would dispute.
But many other people, including many of my friends and colleagues, do not accept even a thin theory of original meaning. What does my analysis of the Article II and Article VI oath say about this debate?
Under the first account, the oath is indeed about interpretation. One takes an oath to defend the best interpretation. But this does not settle what the best interpretation is. There can be debates about this question, and throughout the history of the country, there have been endless such debates.
Under the second account, the oath has nothing to do with interpretation. One takes an oath to protect and defend an institution that has changed and will continue to change over time.