OATHS FOR EVERYONE

As one of the prongs in their pro-Bush editorial this morning in the Washington Post, William Kristol and Gary Schmitt write:

That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

The word "uniquely" is misleading, but in an interesting fashion. Article VI commands that:

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

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.

One last point. Back in May, Bill Kristol wrote an essay trashing Democrats for invoking the Constitution during the recent furor over the filibuster of federal judges:

Suddenly Democrats are wrapping themselves in the Constitution. Emphasizing his commitment to maintaining the filibuster as a way to stop President Bush's judicial nominees, Senate Democratic whip Richard Durbin said last week, "We believe it's a constitutional issue. . . . It's a matter of having faith in the Constitution." The trouble is, the filibuster is nowhere mentioned, or even implied, in the text of the Constitution.

Nowhere in the essay does Kristol mention Democratic constitutional arguments in favor of the judicial filibuster, including separation of powers concerns (particularly after the post-Constitutional invention of political parties) or the Rules clause of Article I. But since he's writing primarily as a polemicist rather than an educator, I suppose that's a side issue.

Does the fact of a constitionally prescribed oath for members of Congress inform the judicial filibuster issue? I'm not sure; Kristol doesn't mention it. Instead, the first sentence implies - outrageously, even - that Democrats do not take their constitutional oath seriously.

More interestingly, as an interpretive matter, do you really think that the judicial filibuster is less anchored in the Constitution than plenary executive power to evade congressional restrictions on domestic spying by the NSA? I doubt it.

MORE: Josh Marshall argues here that - despite the oath - Kristol and Schmitt underestimate the problem of congressional oversight in this case. And for a full examination of the the legal issues involved, see Orrin Kerr here. For the purposes of this post, note that Kerr doesn't mention oaths, presidential or otherwise. That's appropriate: nothing really interesting hinges on the existence of an explicit presidential oath in the Constitution. I'm not really sure why Kristol and Schmitt thought it worth talking about, unless they want to make the rather banal but sometimes neglected point that all relevant political actors, including the President, are required to engage in constitutional reasoning and should feel themselves bound by its results.