I’ll admit that I’ve never heard of Oath Theory until this week. But my understanding of the argument is that the theory takes at least two premises. The first premise is that Article VI of the Constitution requires political and judicial officers of the United States to “bound by oath or affirmation, to support this Constitution.” The second premise is that, due to a number of specific facts about the United States political and legal development, originalism is our law. (To be clear, only 50% of this writers for this blog believes the second premise, but my understanding is that it is a key feature of the argument.) With these premises taken together, the argument goes that anyone who takes the oath is pledging to uphold an original understanding of the constitution.

This makes me curious: for originalists that believe oath theory, who exactly do they think has taken an oath to be an originalist? And, as a natural follow up, how many of those people have been breaking it? Here are some possibilities:

1. Most obviously, a huge number of government officials. To be exact, Article VI requires that the oath be taken by: “Senators and Representatives … members of the several state legislatures … [and] all executive and judicial officers” of the United States and of the several states. Now, my understanding is that only those officials that took this oath at a time when “originalism was our law” would have been pledging to uphold originalism. I’m not sure exactly when originalism became our law, but my guess is that this still comes as quite a shock to thousands of non-originalist officials and judges.

2. Potentially all naturalized citizens.[1] When citizens naturalize, they also take an oath to support the constitution of the United States. Admittedly, this oath’s requirement is slightly different in a few ways than the Article VI oaths that might be relevant to originalists. For instance, the requirement is not part of the constitution—instead it was passed by the first Congress in the naturalization act of 1790—and the language has evolved slightly over time. The oath also requires new citizens to support “the constitution” instead of the “this constitution.” So it’s possible that these differences are material to people that believe in oath theory. But it’s also possible that an implication of the theory is that the ~700,000 people that naturalized last year were pledging to be originalists. Of course, the constitution doesn’t put a lot of obligations on private people, so regardless of whether it was a secret originalist pledge, most naturalized citizens probably aren’t breaking it. But many naturalized citizens have fought for causes like marriage equality or mandatory school desegregation that run afoul of original understandings of the constitution.

3. As far as I know, all state bars require lawyers to take a pledge to support the constitution.[2] Does this mean that every one of the currently 1.4 million lawyers in the Untied States have pledged to be an originalist? And are all lawyers that argue positions against originalist understandings of the constitution eligible for disbarment?

4. What about government officials in other countries? A quick google search reveals that there are a large number of countries around the word that also require oaths to defend their constitution. The exact status of originalism in other countries’ constitutional traditions is complicated, but originalism isn’t exclusively an American idea (you can check out Yvonne Tew’s article on the topic for the receipts). If originalism is “the law” in those countries (which it may very well not be), would the officials all be unwittingly taking pledges to be originalists too?

Now, this particular originalist argument might be new to me, but arguing with originalists is not. So I’m sure I’m going to be told that there have been forty tweets, twelve blog posts, eight academic conferences, six law review articles, and three federalist papers that already considered and answered these exact questions.

But, for my tastes, this argument wasn’t persuasive when it was just being used to claim that politicians and judges had been pledging to be originalists without realizing it. Once it’s expanded to all the other people that have pledged to support the constitution, the implications of this argument are simply too big for it to get off the ground.

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[1] Like with officials, this would presumably only be people that naturalized sometime after originalism became out law.

[2] This would also presumably only be true under the same circumstances as naturalized citizens (e.g. if its fine for the oath to not be constitutionally required, have language that has evolved or varies by state, and not say “this constitution”).