The internet has been abuzz lately with academic discussion of the constitutional oath and the possibility that it implies originalism. See this recent post by Chris Green, much-discussed on Twitter. This article by Bernick & Green lays out parts of the argument in more detail, and this non-originalist argument by Richard Re is a foundational piece of modern oath theory. There seems to be a lot of confusion about what the purpose of the argument is or what it implies. A few general thoughts.
1: The oath to uphold the Constitution is a longstanding, widely-observed practice, so its purpose and meaning ought to be of interest to constitutional scholars. Maybe it turns out to be an empty ritual, maybe it turns out to be a substantive promise of some sort, or something in between. But these are important and legitimate questions to ask.
2: The oath does not by itself make originalism true or justified. The oath argument for originalism depends on other premises, such as an underlying theory of law. But if originalism is our law, and the oath requires officials to uphold to our law, then the oath requires officials to uphold originalism.
This doesn’t make the oath argument empty or circular. It serves an important role as a matter of legal theory. For instance, it helps to explain how inert claims about positive law might have some normative power. Maybe this role will seem obvious or empty to those who don’t care about legal theory, who just assume that saying something is the law means that you should probably do it, but I assure you this is a hard question in legal theory.
[2.5: To be sure, there are also lots of arguments on the other side — for instance that promises to do X should never be able to generate normative obligations to do X that did not exist before, that the constitutional oath in fact has a much thinner content than originalist oath theorists argue, etc.]
3: What seems much touchier, and much more complicated, is what follows as a matter of political morality or rhetoric. Talking about the constitutional oath is touchy, because saying that the oath requires X raises the question of what happens if officials don’t do X. Should they be impeached? Called nasty names? Indeed, these possibilities may make it seem safer not to dwell on our social practice of oath taking, or to settle on it being an empty ritual after all.
Still. If it is true that the oath is a non-empty promise, then we ought to figure out what it means. But I don’t think we should rush to the conclusion that everybody who disagrees about its meaning should be impeached, or called nasty names, etc. I don’t have a complete theory of impeachment or of political morality, but surely there is room to say “the promises you have taken should be best understood to require you to do X” without saying “if you don’t agree with me and do X, you are bad and the following harsh things should happen to you.”
The irony is that the oath is apparently so salient as a matter of political culture that it is hard to talk about without people assuming that this whole apparatus — of impeachment, treason, etc. — come with it. But surely that cannot render it immune to intellectual study. It just means that we should do so very very carefully.