Defending the Constitution

Brett Marston correctly takes William Kristol and Gary Schmitt to task for arguing that only the president takes an oath to uphold the Constitution.

The Constitution requires all federal and state legislative, executive and judicial officers to take an oath. This includes members of Congress, on both sides of the aisle. John Marshall famously used the judicial oath as one of the steps in his argument for judicial review in Marbury v. Madison.

Everyone in the federal and state legislatures, executive branchs, and judiciary must take an oath to support the Constitution. That includes Democratic members of Congress and federal and state judges as well, even the ones who worry about the limits of executive power. Perhaps the special oath prescribed for the President is designed to remind the President of his or her responsibility not to overstep the office’s constitutional authority, in recognition of the severe temptations to do so, especially during times of war.

Plenary executive power arguments tend to push the theoretical limits on presidential power as far outward as far as any particular administration wants to push them; the categories of “constitutionally permitted action” and “presidentially desired action” tend to meld. I would hope that members of the legislature, the judiciary, and the executive braches would take their constitutional oath seriously and worry about this kind of expansion.

Quite right. Indeed, I took essentially the same oath as a second lieutenant.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. McGehee says:

    The Constitution requires all federal and state legislative, executive and judicial officers to take an oath.

    It doesn’t prescribe the oath except for president. Everyone from the vice-president on down takes an oath prescribed through legislation — and as you say, virtually identical all the way down.

    I remember a M*A*S*H episode where Klinger (IIRC) was drunk and depressed over his long-distance marriage breaking up, and wanted to re-enlist. Col. Potter had him recite the presidential oath so it wouldn’t actually be binding when he sobered up and regained his senses.

  2. McGeehee, you better go read Article VI and 5 USC 3311 before you go spouting fallacies.