Wednesday, November 21, 2007

US official oaths of office

It's a minor point, but Joe Klein is mistaken in his description of the presidential oath of office. Klein says, in his new Time magazine column:

As Dodd said, when the President takes the oath of office, he (or she) promises two things: to protect the Constitution and to protect the nation against enemies, foreign and domestic.

That's not actually what the Constitution says at Article II, Section 1. The required presidential oath reads instead:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Klein appears to be conflating the presidential oath with the Congressional oath or the military oath (whether upon enlistment or the somewhat more elaborate commissioning oath) which do use the words "enemies domestic and foreign":

"I, {insert name here}, do solemnly swear, (or affirm,) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." (Note that the last sentence is not required to be said if the speaker has a personal or moral objection.)

Congressional and other oaths of office (I'm using Wikipedia here, but yes, it's correct) also are oaths of office to the Constitution, not the nation, the state, or any other entity. The Constitution specifies in Article VI, clause 3:

"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; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

For other officials, including members of Congress, it specifies they "shall be bound by Oath or Affirmation to support this constitution."

At the start of each new U.S. Congress, in January of every odd-numbered year, those newly elected or re-elected Congressmen - the entire House of Representatives and one-third of the Senate - recite an oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

"So help me God" is customarily added to the end of the oath, but cannot be required as part of the oath of office in the United States. This oath is also taken by the Vice President, members of the Cabinet, and all other civil and military officers and federal employees other than the President. While the oath-taking dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted by Civil War-era members of Congress intent on ensnaring traitors.

***
Well, do these distinctions make any difference? Obviously it's a minor quibble with Klein's column. However, the larger point is more significant than one might imagine.

First, it is not accurate to say that the oath of the president, or of Congress, or of any member of the military is to protect the nation against enemies foreign or domestic. It is to support the Constitution. The same is true of the miltary oath and every other federal oath.

Earlier generations of Americans thought this was, in fact, a great distinction - the obligation to the Constitution, rather than to the "nation," was a formative part of our civic constitutional religion, something understood as separating the great American experiment from the mere passions of nation and nationalism of the countries and imperialisms of Europe. Certainly defending the Constitution means protecting the people of the United States from their enemies, but it has always meant protection in a stronger and broader sense of a certain political system embodied by the Constitution.

Second, the presidential oath of office is different from every other oath in specifically using the phrase "preserve, protect and defend" the Constitution rather than simply an oath to "support." Lincoln, in particular, believed that the difference in language, and the more pressing language of the presidential oath gave the president greater power and executive scope of action in emergency - he believed it gave him constitutional authority for at least part of his unprecedented exercises of presidential power in the Civil War.

It is noteworthy that Vice Presidential counsel David Addington - someone whom I have described as somewhere between Zen monk and thug - is painted by Jack Goldsmith in The Terror Presidency as a close student of Lincoln and a believer in the view that those additional words in the presidential oath carry a genuine distinction for executive authority.

(ps. I see Diane Marie Amann making much the same correction re the exact language of the oaths, here. Great minds, of course, naturally think alike!)

3 comments:

E. Arnon said...

We might forgive Klien this error if we remember that the person who took that oath (falsely, on two occassions) has constantly made the point of saying that he "took an oath to defend this country" (more or less)and not once mentioning that actually he took an oath to defend the Constitution.

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