What is the Object of the Constitutional Oath?

58 Pages Posted: 24 Aug 2019 Last revised: 1 Sep 2020

See all articles by Evan D. Bernick

Evan D. Bernick

Georgetown University Law Center

Christopher R. Green

University of Mississippi - School of Law

Date Written: August 22, 2019

Abstract

How and why are officers today bound to the Constitution? Article VI gives us a crystal-clear answer: they are bound “by oath or affirmation, to support this Constitution.” But what is the content — the object — of that promise? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds office-holders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 27 years from 1991 to 2018, but they claim to fulfill those nine oaths by speaking collectively of “the Constitution.” Americans regularly describe their Constitution as the oldest still-operational written national Constitution in the world. These sorts of contingent practices could of course change. But until they do, we should understand oath-takers to be swearing to obey the same entity which has been operative since the eighteenth century. If we have a living Constitution today, it must have been living from the very start. Our current constitutional culture correctly rejects post-Founding “constitutional abiogenesis” — a transition from a non-living to a living Constitution between the Founding and today. Change in constitutional requirements may be justified only if rooted in the rules for constitutional change operative at the Founding.

Keywords: Article VI, constitutional oath, mental reservations, originalism, living constitutionalism, constitutional abiogenesis, thisness, promise-keeping, identity over time, essence v. accident

Suggested Citation

Bernick, Evan D. and Green, Christopher R., What is the Object of the Constitutional Oath? (August 22, 2019). Available at SSRN: https://ssrn.com/abstract=3441234 or http://dx.doi.org/10.2139/ssrn.3441234

Evan D. Bernick

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Christopher R. Green (Contact Author)

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

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