We are all familiar with that rite of passage in which an individual who has been elected or appointed to public office is asked to swear that he will defend the Constitution against all enemies, foreign and domestic. At the instant that he utters the magic words, “I do,” that individual is vested with the powers of his new office, and his friends uncork the champagne in celebration. But even though that oath is required by the Constitution, I suspect that few give any thought to its implications in the larger constitutional scheme.
The requirement of an oath is to be found in the first part of the third clause of Article VI, which reads as follows:
The Senators and Representatives . . . and the Members of the several State Legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution.
The balance of that clause provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
I began to consider the implication of the oath two years ago when I was asked to participate in a symposium on “The Catholic Public Servant.” As I was teamed with a former governor and a current congressman, it was obvious that I was expected to focus my remarks on the role and responsibilities of a Catholic judge. And because of the lamentable tendency these days to view members of the Supreme Court as philosopher kings who are authorized to write policy into law, I felt it necessary to focus on constitutional fundamentals.
It should be noted that the third clause of Article VI is the only provision of the original Constitution that applies to all three branches of government; the only one that applies to both state and federal officials. So it should be obvious that the Founders intended the oath to serve more than a ceremonial purpose. They were launching an extraordinary experiment in governance, and they knew it would work only if every public officer in their new Republic were to bind himself to make it work. To this end, they consciously enlisted the power of religion to ensure fidelity to the Constitution. James Madison, in fact, was to comment on the seeming paradox that such a requirement should appear in the same clause as the provision abolishing religious qualifications for public office. As he wrote in October of 1789, “Is not a religious test . . . involved in the oath itself?”
It doesn’t speak well of our age that we must remind ourselves that the special power of an oath derives from the fact that in it we ask God to bear witness to the promises we make, with the implicit expectation that He will hold us accountable for the manner in which we live up to them. This understanding of the meaning of an oath is as ancient as our civilization. Edward Gibbon made the point in a wry passage on the role of religion in the Roman Empire:
The various modes of worship, which prevailed in the Roman world, were all considered by the people as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. . . . The magistrates could not be actuated by a blind, though honest bigotry, since the magistrates were themselves philosophers. . . . [But t]hey knew and valued the advantages of religion, as it is connected with civil government. . . . [A]nd they respected as the firmest bond of society, the useful persuasion that, either in this or in a future life, the crime of perjury is most assuredly punished by the avenging gods.
Like the Roman magistrates, the Founders of the American Republic took conscious advantage of this “useful persuasion” to further the interests of their new state; but unlike those magistrates, the Founders believed in both the religious nature of the oath and in the sanctions that await those who break a promise made to God. In his Farewell Address, George Washington would ask, “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths . . . ?” And in his diary, John Adams acknowledged his terror at the thought of eternal punishment should he ever betray his conscience and his God in order to secure political advantage.
What, then, are the implications of the oath that all public officers are required to take? What obligations does it impose on them? The answer, of course, lies in the words to which they have been asked to swear. These have been set by statute; and although the exact language will vary depending on the office being assumed, they all require that the prospective officials swear or affirm that they will support the constitution of the United States and faithfully discharge the duties of the offices upon which they are about to enter. This undertaking demands that they determine as best they can exactly what it is their offices require of them, and what limits have been placed by law on their authority; having done so, they live under a continuing duty to meet those standards and to respect those limitations to the best of their abilities.
In my remarks to the symposium, I observed that the nature of a public officer’s responsibilities will determine what role, if any, religious convictions may legitimately play in his official work. I acknowledged that there are those today who will construe the First Amendment to require that public servants ignore their own religious beliefs when discharging their public duties, but suggested that this position demonstrates a profound ignorance of both the Constitution and human nature. Which brings me to the second part of clause 3 of Article VI, namely, its prohibition of religious qualifications for public office. This provision, of course, merely ensures that positions of authority in the federal and state governments will be open to persons, and therefore to influences, of every faith, and of none.
The Founders were not afraid of religion. To the contrary, they thought it essential to the success of their fledgling government. Because the Founders understood the links between religion and virtue and responsible citizenship, they emphasized throughout their writings that the Republic’s survival, and the liberties it was intended to protect, ultimately depended on the morality of its citizens. In sum, we live in a society in which the importance of religion has always been recognized; and while the First Amendment forbids laws “respecting an establishment of religion,” it has never required that the state be isolated from exposure to religious influences.
Thus, as I understand our constitutional arrangements, a President and members of Congress need never apologize for the fact that their views or votes may reflect their religious beliefs. As members of the elected branches of government, they are expected to engage in the formulation of public policy; and it is, quite simply, fatuous to suppose that they can check the religious components of their convictions at the door before entering the council chambers of government. The role of federal judges, however, is of a significantly different kind. As unelected officials, they can claim no mandate to reconstruct public policy. Rather, their constitutional duties are exclusively judicial. It is their job to give force and effect to the law, whether they agree with it or not; and that, I assure you, is responsibility enough.
I explained to my Catholic audience that in taking office, I had sworn to “administer justice . . . according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.” I then proceeded to describe this federal appellate judge’s understanding of the nature and limits of his authority, more or less as follows. I said that the authority that was vested in me upon taking that oath is derived exclusively from the Constitution. Thus the justice I am sworn to administer as an appellate judge is not justice as I might see it in a particular case, but justice as it is defined by the Constitution and laws and legal traditions of the United States. And if I consciously deviate from that body of law to do justice as I see it, I violate my oath of office and undermine the constitutional safeguards embodied in the Separation of Powers. I acknowledged, of course, that a judge is no more relieved of moral responsibility for his work than anyone else in either private or public life. My duty as a federal judge, however, is to be measured by the requirements of my office. I cannot act as the impartial arbiter of the law unless I am willing to apply it.
I recognized that when it came to interpreting the Constitution, there existed a body of respected opinion that viewed that document, its nuts-and-bolts provisions aside, as essentially a depository of principles that each generation of jurists is at liberty to adapt to the exigencies of the times. I noted, however, that whatever the merits of that school of thought, I felt my own reliance on original meaning not only sounder in principle, but better designed to narrow the occasions for the ultimate judicial sin: the abuse of power. It ought to be clear, I suggested, that in a polity based on the rule of law, federal judges have no license to insert their own views of what is right or appropriate into the Constitution and statutes they are sworn to apply. To put it bluntly, no federal judge, however wise, has the moral authority or political competence to write the laws for a self-governing people; and no American should wish it otherwise. The federal judiciary is recruited from the ranks of a professional elite, and at the appellate level at least, it is isolated from the rough and tumble of everyday life.
I suggested that while it is improper for any judge to use his position to smuggle religious doctrines into the law, the law may well benefit from a religious judge’s approach to his work. I also said that to the degree that there is such a thing as a Catholic ethos, and I believe there is, it nurtures a respect for and acceptance of lawful authority and tradition; and it cultivates a sense of work as vocation. And to the degree that judges continue to believe that fidelity in service will be rewarded, and a betrayal of trust punished, in the next world if not in this, to that degree do they remain subject to the incentives the Founders sought to harness when they required the oath as a precondition to public service.
I suspect there are few positions in public life in which it is easier to keep faith with the oath than the one I now occupy. Thanks to life tenure and the cloistered environment in which appellate judges work, none of us is exposed to the temptations to depart from perceived duty that confront, for example, the members of Congress. I am persuaded that in the case of elected officials, the overwhelming temptation is to conclude that it is more important for your constituents that you be reelected than that you deal honestly with them. Hence, the frequency with which legislators will yield to political pressures or expediency and vote against their convictions, especially when they can salve tender consciences by persuading themselves that a principled vote would not have affected the outcome. Given the difficulty of resisting such temptations over the longer run, a proper concern for the welfare of congressional souls may well be the ultimate argument in favor of term limitations.
In the last analysis, of course, an oath will encourage fidelity in office only to the degree that officeholders continue to believe that they cannot escape ultimate accountability for a breach of faith. Edward Gibbon observed that by the beginning of the second century A.D., the poet Juvenal would lament that the Roman world had lost the fear of punishment in the afterlife that had given oaths their special force. The same may now be said of our world. It seems that cheating no longer raises eyebrows, whether committed in a schoolroom or in bed, and such words as “sin,” “honor,” and “virtue” sound quaint as we discard standards of behavior that have been rooted in our society since the founding of the Republic. Moreover, we are showing a dismaying tendency to recast God in man’s image. If enough people openly engage in conduct once considered reprehensible, we rewrite the rule book and assume that God, as a good democrat, will go along.
Still, I wonder what changes there might be in the quality of public life today if more of our officeholders could be persuaded to take a truly scrupulous view of the responsibilities they assume when, with hands placed on Bible, they swear to faithfully discharge all the duties of their offices, according to the best of their abilities and understanding, so help them God.