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.

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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!)

Comparing Walzer's just war theory and the traditional Christian just war criteria, Feb 27 class notes

Here's what I propose to discuss in the February 27 class:

I asked you to read two different bodies of stuff. First, Walzer, chapters three and four. These chapters take up what Walzer thinks is essentially wrong with war. He says war is wrong because war is hell, but he gives war is hell a meaning fundamentally different from anything I mentioned in last class's gloss on Sherman's "war is hell." War is hell, for Walzer, fundamentally because it coerces people, combatants and noncombatants alike, in ways that are unjust and which violate their rights. War is hell because, as he says, war is a form of tyranny. This is quite different from any of the readings of that phrase I suggested last week.

This is to say, Walzer thinks that war is fundamentally wrong not because of its bad consequences primarily - of course he acknowledges them, but they are not the sum total of his objection - but because it violates rights. The question is how it violates rights, and Walzer says, well, one way to consider how it violates rights is to consider those (marginal) forms of warfare that do not violate rights - wars consisting of consenting participants who conceive of it as a game.

As we discussed last class, that participation might still be wrong - indeed wicked - but to kill in those circumstances is not necessarily unjust or a violation of rights. (We might think of duelling, for example.) But Walzer confines our consideration of what is wrong with war fundamentally to the question of rights. A theologian - not necessarily Christian, in fact - might object that this is not enough - you cannot give consent to kill or be killed as in a game, because you consent to something that is not yours to consent to. Whereas Walzer is focused on a contemporary and secular way of making out the argument against war, by asserting the idea that what matters in war, and what makes war wrong, is its violation of rights, as evidenced by the lack of consent in nearly all wars. Consent, liberty, freedom for oneself - these are all paradigmatically values of secular modernity - and very different, and providing a different account of the wrongness of war, from the religious view that one's life, and others' lives, belong to God.

This idea that war is a form of tyranny, and a deprivation of rights thereby is a powerful one. It allows Walzer to generate a powerful, and powerfully secular, form of rights discourse by which to talk about what is okay and not okay in deciding to make war, and in conducting war itself. But the move to limit the discourse to a rights discourse also limits the moral impulses, so to speak, on which Walzer's theory draws - and means that it is not really the whole tradition of just war thought and its criteria, which is presumably part of the reason that Walzer does not anywhere lay out the traditional criteria of the just war - the five, six, or more requirements that are usually asserted as the criteria of the just war. He does not do so - in a brief conversation with me at a conference once several years, he sort of said so - because although he is looking for a way to provide a secular theory of the just war that relies on rights but not on God, it is (deliberately) not a full theory of the ethics of war. It is concerned with a particular issue, the violation of rights, the violation of rights that arises from unjustified aggression, and resistance to aggression. Walzer's theory is really a theory of resistance to aggression. That is a very large consideration, to be sure. But the tradition of the just war, with its consideration of overall consequences, of prudence, of many historical, political, etc., factors that stretch far beyond a consideration of rights, even to resist aggression, is actually much broader than that.

2. This gets ahead of ourselves, however. Let us now turn from Walzer, and look at the addition readings I gave - from James Turner Johnson, mostly, who is a famous historian of religion and the just war tradition at Rutgers University - in order to state the tradition in its historical form. You'll notice that Johnson offers, in one of those readings, a critique of the limits of Walzer's rights based approach - notably that it is profoundly ahistorical. So, what are the traditional criteria? (We'll walk through them in class, first in summary, and then over the next couple of classes we'll go over them one by one.)

3. What are the differences you can see between these criteria and Walzer's theory? One example of the differences can be found in Walzer's very strong claim that all things being equal, one should resist aggression, and that one is always justified in doing so, even presumably in a losing cause. The traditional just war criteria do not say that. On the contrary, they say one should calculate the likelihood of success, and if it looks like a hopeless cause, one should consider the total consequences, even as against permitting injustice, and consider not fighting. Why are these things so different? I do not think this is a minor difference in assessing factors of just war theory - my view is that this goes to the very heart of Walzer's secular theory of the rights of political communities, versus a religious tradition in which the right action ought to be assessed from the point of view not of a political community, but trying to see with the eyes of God and the angels, as it were, - from the outside, looking down on the total conflict. Am I right about this? (I write about this a little bit on my blog - I'll post the reference later.)

4. Thus, Walzer is one version of a rights based just war theory; the religious traditions of Christianity offer not just one but several other possibilities. I stress that this is a tradition - it is a framework for arguing about war's ethics, not a calculus. You don't simply plop in some values for this or that and, click, out pops an answer. It is a tradition that invites very different moral conclusions about particular wars and their circumstances, depending on how you read the facts, of course, but also depending on how you interpret and read the moral values themselves. For one thing, in part this is a tradition about rights and justice, but it is also consequentialist - as, it would seem to most of us, any discussion of war must partly be - and also about prudence. It is about individuals and their rights, political communities and their rights, and consequences and prudence, and even including Thucydides 'argument upon your safety'. I would hate anyone to come away from this discussion thinking that this framework yields one simple answer; an essential part of this class is being able to articulate different answers that might come out of this same framework.

Okay, where we go from here is to walk back through the criteria one by one and fill in what they mean, or might mean.

Sherman's war is hell - just war theory class discussion notes, Feb 20

Sherman's 'War is hell'. I want to begin with Walzer's account of Sherman's famous expression, war is hell. The point here is to tease out multiple meanings and ways in which that phrase can be read to express different senses of the moral reality of war. I will give three readings, starting with a "zero" reading - ie, the context in which Sherman actually spoke.

0. Sherman's war is hell speech. Sherman seems not have to spoken the line famously attributed to him. Instead, speaking many years after the war to an audience of veterans but also younger men and boys in Columbus, Ohio in 1880, he said:

"There is many a boy here today who looks on war as all glory, but, boys, it is all hell. You can bear this warning to generations yet to come."

In this context - a post war context which was increasingly infusing the Civil War with a patina of martial glory and romanticizing battle - Sherman here neither justifies atrocities nor justifies war itself. It seems instead, rather, a reminder to veterans not to gloss over the horror of their experiences and to young men not to romanticize war.

On the other hand, it is also evident from Sherman's writings, his letters, and above all his superb Memoirs, that Sherman indeed regarded war as in immutable, entirely natural part of the human landscape. He was in no sense conventionally religious and, as Charles Royster has put it, for Sherman war was a "natural phenomenon, guided by nature's laws, which God had created but which operated with the consistency of mathematics, not by God's 'mere fiat'." Yet he was a firm believer in order, and that history tended toward order - this constituted progress. When humans, for example, willfully "defied the movment of history ... their deviation would inevitably be corrected either by political persuasion or by violence. In the latter case, combat was as natural, as scientifically explicable, as the thunderstorm or the movement of the planets; the ultimate result followed as ineluctably as did effects of the laws of physics."

In that sense, Sherman was profoundly religious, in a special sense, a believer in a telos of the universe in which even human actions had a purpose toward order even if battle itself partook of a disorder that could not be compassed by generals and their plans. "Wars are not all evil," Sherman wrote late in life, "they are part of the grand machinery by which this world is governed." (Charles Royster, The Destructive War.)

That latter sentiment is something quite different from a warning against the glorification of war; it does not glorify war, but it is altogether accepting of it - accepting of it as hell on earth.

1. 'War as hell' as an empirical assertion. One way of reading 'war is hell' is to treat it as an empirical assertion about the nature and experience of war. That is easy enough looking at battle, especially in the Civil War. However, we will also talk about wars, as Walzer notes, where war is not hell - it is a chosen experience, not that different from extreme sports, where the participants are voluntary and it is a conscious effort at self-testing. But those wars are the very, very rare exception - the question is what follows from the empirical observation that war is messy, nasty, brutal, hellish, etc.

The answer most often given is that wars, therefore, should be as short as possible. The most complicated and interesting factual and conseqeuntialist claim is, however, additional to what we've said so far - the claim that it is better to have a short, hellish war that might be a massive explosion of violence and horror, but which is short, than a long war which might be at most moments less violent and horrible but which, over time, is actually worse for the societies involved because of the evils of violent disorder.

There are many versions of this claim. Sun Tzu, for example, wrote of keeping wars short in order not to devastate the peasants who could not survive several years of campaigns without starving. Bertolt Brecht wrote his famous anti-war play, Mother Courage and her Children, against the backdrop of the Thirty Years War, in which the grand irony of the play is that the war itself has become the economic basis of so many people's lives that it's not clear that anyone is interested in peace - echoes of the long-running war in southern Sudan, in which over a twenty year time, international relief aid had become so built into the economy of the region that it had become a reason for continuing to fight.

Or the disasters of failed states, ruled by shifting gangs and clans and warlords - this was the world which Augustine surveyed in which he announced that the obligation of Christian rulers was to provide "ordinary" just order, with an emphasis on the virtues of order, tranquillitis ordinis, rather than dreaming of the eschatological peace of the end of days. One of the fascinating transformations in the current debate over the Iraq war has been the conversion of liberal idealists, previously taken with the idea of "no justice, no peace," coming to the realist view that order, just or not, can be a very good thing. (There is a scene arguing exactly this in the great Hungarian novel The Loser, at the time of the 1956 revolution.) So, goes this assertion, if you are going to have a war, then the best thing is that it be short and sharp, decisive even, because although war is hell, it is much better to experience that and avoid the greater disaster of long term disorder, which is the real hell.

So, in the end, this latter reading of 'war is hell' is an empirical assertion underlying a consequentialist judgment about what produces the best long term results - war is hell, but a short time in hell is better than long term disorder and violent insecurity.

2. 'War is hell' as realist argument for unlimited war. We have already walked through the argument by which descriptive realism becomes a moral justification for unlimited war - this is the Hobbesian spin on Thucydides that we discussed last time. I won't spend much time here on it, just to note that you can easily read 'war as hell' as shorthand for that argument. War is hell, you are, when in war, in the state of nature itself, and so it cannot be limited. This is realism as an argument for unlimited war.

3. 'War is hell' as argument from 'superjustice'. The final way I propose to read 'war is hell' is, strikingly, an argument not from realism but from justice, and yet an argument for unlimited war. It is probably the argument closest to Sherman's deepest views on the moral nature of war - and while it an argument for unlimited war, it is not an argument from realism. Sherman argues that because the South has rebelled against the Union, it has violated what might be seen as natural law. The consequence is a reaction that Sherman himself seems to contemplate in almost physics-like terms - a violation of the natural moral order begets an opposite and equal reaction, and it is one that is irrespective of the agency of those who carry it out. Notice how Sherman, in Walzer's summary, denies responsibility for the things that his army does to the South - because they morally did the wrong, he says, the consequences are both as natural as an opposite and equal reaction to reestablish the status quo, and not in any sense his fault or even doing - what he does is simply what the South did to itself.

Now, this argument is troubling on many grounds, starting with the peculiar and untenable shifting of agency. It will obviously not do for Sherman simply to deny that he and his army had any choice or agency in the matter; of course they did. They could have let the South secede.

More interesting is the claim of natural law that underlies the denial of agency. It is not a claim of necessity in the realist sense, not even in the Hobbesian sense. It is not an argument from the necessity of our survival. It is, on the contrary, an argument from the most profoundly offended sense of justice. And the sense of offense is so great that it permits any form of response - war unlimited in every sense - to right the wrong. We are accustomed to thinking of the concept of justice in war as one which limits war, both its causes and its conduct. But that is not necessarily the case - justice, instead, can also be a profound argument for denying that war can have limitations. No justice, no peace, taken to a very grave extreme. And that is what, at bottom, Sherman is saying. He affects the passive equanimity of a hammer in the hands of a 'natural' response; it is not his doing or his agency. But what drives the hammer blow, it turns out, is a sense of justice that will not admit of any limitation on its drive for justice.

The drive for absolute justice, without limit, is the subject of much literature from the Greeks, who, with their sense of moderation, as hubris and a source of traged, down to today. Durrenmatt's The Visit of the Old Lady, for a modern example; or Albert Camus' very great essay, The Rebel. But Sherman - and this seems to be pretty close to what the man actually believed - was not finally a realist, but a fanatic for justice. I want us to bear this in mind as we look at moral claims to limit the scope of war - the standard account of the ethics of war tends to see, with Walzer, realism as the primary way by which unlimited war is justified. But in many ways, it is even easier to get there with a claim of genuinely unlimited justice.

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The other thing we will discuss, or start discussing, on Tuesday, February 20, is why war is wrong. I will follow Walzer's discussion quite closely. The fundamental question is what makes war wrong for Walzer - the key is that it is a form of tyranny, of coercion, of denial of natural liberty to individuals as to a political community. And I will suggest that it is this element of Walzer - this focus on the denial of liberty - that most importantly makes Walzer's account of just war theory a secular one. It is not merely that Walzer seeks an account that does not explicitly appeal to God or God's laws or commandments - it is, even more, that Walzer's seeks a theory that affirms the basic secular tenets of modernity, starting with liberte, egalite, and fraternite. I will start off into this discussion in class.