The Constitutional Oath

As an attorney and perpetual student of the law, I have never been comfortable with the idea of litigating constitutional issues. Courts represent the last resort for citizens oppressed by their own government.

As Jonah Goldberg noted at National Review, many progressive journolists [sic] and constitutional “experts” seem nonplussed at the idea of anyone examining the constitutionality of legislation that is not a judge or justice. The problem with that mentality is that the Constitution does not identify the Supreme Court as the sole arbiter of constitutional meaning.

The concept of judicial review came about in Marbury v. Madison. Essentially, actions of the political branches would be subject to review and possible invalidation by the Supreme Court. Mind you, this case revolved around a political dispute between the outgoing Federalists and the incoming Jeffersonian Republicans. Chief Justice Marshall, an ally of the Federalists, ruled in favor of the Jeffersonian Republicans to garner support for the new role he had carved out for the judiciary. Ever since, the Supreme Court has assumed the final say on constitutionality with few exceptions, though no explicit authority exists.

This decision provides the basis for progressive belief that the Supreme Court represents the only means for decisions on the constitutionality of legislation, and it is outright wrong. This is the fall-back for progressives on the constitutionality of Obamacare. “Shouldn’t we wait until the Supreme Court presents its opinion?” Heck no!

You see, all constitutional officers are required to take an oath to uphold the Constitution in Article VI cl. 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….

As an officer of the court, I took an oath to support the Constitution to become an attorney, and I take it seriously. In fact, I risk being disbarred for advancing arguments that have been deemed beyond constitutionality (another argument for another day).

The President is required to take a specific oath according to Article II 1:

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.

All Constitutional officers take an oath to support the Constitution, so the idea that the Supreme Court should be the only authority on the Constitution is ridiculous. Constitutionality should be examined in every decision or action taken by the federal government.

When our representatives in government ignore their oaths, abominations like Obamacare become the law. And when we as citizens ignore our representatives violating their oaths, we risk the contractual relationship that protects our rights from government power, through the Constitution.

Progressives do not care about constitutionality, nor do they take oaths to the Constitution seriously. Power is their game, and power runs contrary to our rights as citizens. Beware the progressive that hides behind the Constitution. Ridicule the progressive that openly ignores the Constitution, then vote them out: