Are oaths "absurd" or simply pathetic? Reflections of the Balkin-Green exchange

I am quite excited by the exchange between Jack and Chris Green about the meaning of the oath of fidelity to the Constitution.  This is something that has interested me for a long time.  One of the first things I discussed in my book Constitutional Faith was Barbara Jordan’s famous statement that her “faith in the Constitution is total.”  I genuinely didn’t know whether to find this inspiring or simply intellectual absurd in almost every conceivable way.  (Though one might be reminded of Tertullian’s statement that he believed in Christian doctrine because it was absurd.  That was a feature, and not a bug.)  I confess I have some of the same ambivalence these past couple of weeks when General Milley, the head of the Joint Chiefs of Staff, took care to remind all personnel in the armed forces that they take their oath to the Constitution and not to the person of the President, as much as the would-be tyrant Donald J. Trump might prefer that alternative.  Milley’s letter was an important, even vital, intervention in our present parlous situation.  Would that the flunky William Barr be reminded that he is not living under the Fuhrerprinzip. 

That being said, the problem arises when one tries to supply genuine content to the meaning of “the Constitution” that one has sworn fealty to.  How does the oath operate with regard to what I call The Constitution of Conversation—i.e. the only part of the Constitution that is really addressed in the American legal academy—as against the Constitution of Settlement that includes such words as two, four, six, two-thirds, or three-fourths?  Textualism might be helpful with regard to the latter, but, quite obviously, “originalism” is almost totally beside the point inasmuch as no serious person, save in the most high-theory of high-theory seminars, will challenge the meanings of the numbers, or of the egregious reality that Donald J. Trump will remain President, with all of the legal powers assigned to his office, until January 20, 2021, even if he is decisively trounced in the November election.  If you don’t believe me, just read the 20^th Amendment (which is never, to my knowledge, taught in courses on constitutional law). 

I was also delighted by the fact that Jack brought up his own religious analogies when he referred to the otherwise mysterious fact that we can allude to “Judaism” or “Christianity” in spite of the fact that the definitions of these beliefs, practices, or whatever have changed drastically over the years.  And I was particularly gratified by his offhand inclusion of Moses Mendelssohn in his list of Jewish thinkers who in fact transformed the meaning of being “Jewish” and thus loyal to the faith.  As it happens, I am, with a philosopher friend, reading Mendelssohn’s truly fascinating book Jerusalem, which contains a riveting discussion of oaths.  He is writing primarily of religious oaths, such as the kinds that many polities required of their residents in order to become full citizens (and which were barred by Article VI of the U.S. Constitution).  But his skepticism about oaths certainly extends to quasi-religious oaths like those exacted from the President and, under Article VI, all public officials, whether state or national.  What, indeed, do we think we’re doing, as a collective constitutional order, in requiring them?  And does “originalism” offer the slightest help in answering that question?  (Spoiler alert:  The answer is absolutely not.)

So first, let us consider Mendelssohn’s critique of what might be viewed as the genuine pathos underlying the extraction of oaths: 

It is impossible that I and my neighbor can unite the selfsame inward sensations to the selfsame words.  For we cannot confront the former with one another, or form a comparison between them, and correct them, unless by words.  [E.g., in disputing the meaning of “horse,” we can go outside and find what both of us agree is a “horse” and then determine, conclusively, that the typical horse has four legs and does not “moo” or “baa.”  We cannot do any such thing if someone asks about the “general welfare” or “equal protection.”  All we have is words, period.  To be sure, there are some philosophers of science who would say the same thing about scientific categories.  If one accepts those views, to put it mildly that gives no comfort to anyone wishing to say that there is some kind of “fact of the matter” to which our words must correspond.  It’s turtles all the way down.  But now back to Mendelssohn]  We cannot define words by things, but again must have recourse to words or to symbols, and in the end to metaphors; because by that device, we, as it were, lead the conceptions of the internal sense back to external sensible impressions.  But with that process, what confusion and obscurity will there not remain behind, in the signification of words?  How will not the ideas vary, which different men, in different times and ages, link to the selfsame symbols and words? ….

And ye, my fellow-creatures, ye take a man, with whom, perhaps, ye never had any conversation about those matters; ye propose to him the most abstruse thesis in metaphysics and theology, clothed as they were, ages ago, in words or so-called symbols; ye make him swear by the most awful of names, that he associates with those words the very identical ideas which you yourself associate with them; and that both he and you associate with them the very identical idea associated with them by him, who wrote them down ages ago; you make him swear that he subscribes to those theses, and draws none of them into question, and with this subscription on oath, you connect office and dignity, power and influence, the temptation to which, removes so many a contradiction, hushes so many a doubt…

And consider as well James Madison’s musings on the nature of language in the all-important but far-too-little read or discussed Federalist 37:

The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the ermination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.  (emphasis added)

So the message is ultimately the same.  In matters dealing with sense impressions, it is, perhaps, e.g., if one is a Lockean, possible to achieve a kind of certainty as to reference.  In matters dealing with religious belief or, more to our particular point, the organization of government, it is simply foolish to believe there is a true “fact of the matter” that can be ascertained by reverting to original intent, public meaning, or whatever.  They are, as many philosophers  (but, apparently, not “originalists”) would concede, “essentially contested concepts,” so that, by definition, there is no genuine end to the conversation.  It might begin at time X but that in no conceivable sense “fixes” the meaning, as Larry Solum might say, unless, of course, one is an historian and the evidence supports the proposition that “all respected thinkers” at time X believed, say, that only men had the faculties required to become full participants within the polity.  That might be correct, as a statement of intellectual history, but it would be absurd to say that that belief, however “interesting” in terms of understanding our forbearers, has any purchase on us today.  

Madison, unlike Mendelssohn, speaks of “liquidation” of disputes, but, of course, he does not in the least offer any guidance as to the time span of the “liquidation” and the possibility that a “liquidated” meaning at time X might be found unsustainable at time Y, including an assertion that the initial decision was “wrong at the time it was decided” and not, for example, merely overtaken by later events. 

This doesn’t necessarily require adopting the view that originalism is “bunk,” as was well argued by my former colleague Mitch Berman (where originalism was actually a claim, as stated, say, by Robert Bork, that it was the only legitimate approach to constitutional interpretation, and not, as reduced by later “we’re all originalists now like Will Baude and Steve Sachs, one of the Bobbittian “modalities” that has no dispositive brought up against the claims of “doctrine” (i.e., precedent) or even “prudentialism” (i.e., a concern for the actual consequences of adopting a given rule or interpretation).  It only requires recognition that originalism is basically of no help whatsoever in deciding what, today, it means for a President or a general, or any of the rest of us, genuinely to be faithful to the Constitution of the United States.  If one is a “true originalist,” the “faithless” (or Hamiltonian) elector case ought to be easy, but almost no one, alas, agrees with that, including Keith Whittington, who has written one of the most interesting and well-developed defenses of originalism as a mode of constitutional interpretation.  Perhaps he would respond that the meaning was “liquidated” by the early 19^th century, when the political party system supplanted the absurd hopes of the Framers that political parties could be avoided by placing leadership in the hands of virtuous, public-spirited men (and, of course, they assumed it would be only men).  But why view 1804, or 18—whatever as the terminal date for “liquidation.”  Perhaps it’s like saying the Prophetic tradition in Judaism ended with Malachi, so that anyone coming afterward was simply a “false prophet.”  (This would, of course, include, Jesus and Mohammed, among others.)  As Marshall suggested in McCulloch, and as I quote incessantly, any Constitution designed to “endure” must be “adapted to the great crises of human affairs,” which means that there is always further “liquidation” to be done as these crises in fact emerge, and Marshall certainly did not specify that the only mode of “adaptation” was Article V amendment.
 

To the extent that my rather banal observations are true, and I’d be genuinely interested as to why anyone would think they are not, they also challenge us to explain why we actually require oaths of civic worthies for any other reason than a barebones textualist adherence to the demands of Articles II and VI that officials must in fact take such oaths whether or not they have (or even could have) any genuine guidance as to what they are promising to do.  Anthropologists would have little trouble understanding such practices.  But anyone falling sway to the Enlightenment, such as Mendelssohn and Madison, might indeed have some explaining to do.