Benjamin Wittes and Quinta Jurecic recently asked, in LawFareBlog.com, What happens when the judiciary doesn't trust the president's oath?
This weblog, in late February, described the Oath of Office recently taken by the present occupant of the White House as perjurious, The acceptance of the president-elect's supposedly solemn affirmation, the argument asserted, revealed that we have come to regard an important constitutional safeguard as a meaningless ritual:
The oath of office was meant to screen out anyone who had no intention
of maintaining the order(1) of a constitutional democracy:
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:—"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."
The
inadequacy of this provision is that it assumes that the Electoral
College would not make an unprincipled scoundrel president of the United
States. As Bruce Schneier reported earlier in this post, the honorable
Mr. Trump made "purposeless, false and inflammatory statements before
Congress." Newsmax noted yesterday,
"New York Times Headline Once Again Calls Trump a Liar." Add to this
the disrespect for the law involved in denigrating any judge who places
the Constitution above the diktat of a government official; and the
disrespect for the First Amendment revealed by the practice of declaring
the media the enemy of the American people, and it should be clear that
the charlatan in the Oval Office swore perjuriously.
The problem isn't that these guardrails
failed. The problem is us. If we had believed in the values of liberal
democracy, we wouldn't have voted for a known unfit by the millions. If
we believed in our values, we would not have treated the oath of office
as a meaningless ritual.
Wittes and Jurecic's discussion suggests that the Oath, far from meaningless, is having significant effect down the line. In so doing, they took the question to a deeper level. The Oath of Office is an affirmation of "civic virtue." "We think," they reasoned, "the answer lies in judicial suspicion of Trump’s oath." (Emphasis added) Then the condition of the Republic requires us to:
Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight.
In this situation, the "legal debate, ... about both the propriety of the President’s [immigration] order and the propriety of the judicial responses to it," reflects the problem of his ethics and his credibility:
It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
Wittes and Jurecic have thus moved the debate over the crisis of the Presidency from politics to principle. Presidency is a matter of deference; and deference cannot be accorded if the person behind the desk is manifestly lacking in civic virtue.
"What happens when people—including judges—don’t take the President’s oath of office seriously?" The perjurious presidential oath of office may have been recognized as disqualifying the "President." His lack of civic virtue means that there is "thus no concept of deference to him" ... [and] "the words of the President are not presumed to carry any weight." If so, Trump is not the strongest, but the weakest president in history.
-*--
(1) Lincoln believed that he could not allow the South to secede, thus depriving the U.S. citizens living there of the protection of the Constitution, and yet be faithful to the Oath of Office: "You
have no oath in Heaven to destroy the government, while I shall have the
most solemn one to preserve, protect, and defend it."
[Note captured ten years ago]: A passage from Lee Smolin's Three Roads to Quantum Gravity illustrates the intellectual sensibility in action. He and his researchers had (because of failure to check the literature) appeared to claim credit for originating methods actually developed by others:
One of our students, Bernd Bruegmann, had come to my office
with a very disturbed look on his face. [...] There was no
avoiding the fact that the method we had developed was quite
close to the one that Gambini and Trias had already been
using for several years in their work on QCD. [...]
With a heavy heart we did the only thing we could, which was
to sit down and write them a very apologetic letter. We
heard nothing from them until one afternoon in Trento, when
Carlo got a phone call from Barcelona. [...] They [...] asked
if we would still be there tomorrow. The next morning they
arrived, having driven most of the night across France and
northern Italy. We spent a wonderful day showing each other
our work, which was thankfully complementary. [Gambini ...]
in the next few months [...] invented a new approach to doing
calculations in loop quantum gravity.
This illustrates the liberal virtues of selflessness, candidness, love of knowledge, and passionate desire for optimum outcomes. This is the idealism implied in George Washington's concern for the "public good" (see his inaugural address and his farewell address).
It's related to what Olivia Judson wrote a year later:
The third reason to teach evolution is more philosophical. It concerns the development of an attitude toward evidence. In his book, “The Republican War on Science,” the journalist Chris Mooney argues persuasively that a contempt for scientific evidence — or indeed, evidence of any kind — has permeated the Bush administration’s policies, from climate change to sex education, from drilling for oil to the war in Iraq. A dismissal of evolution is an integral part of this general attitude.
Moreover, since the science classroom is where a contempt for evidence is often first encountered, it is also arguably where it first begins to be cultivated. A society where ideology is a substitute for evidence can go badly awry. [...]
But for me, the most important thing about studying evolution is something less tangible. It’s that the endeavor contains a profound optimism. It means that when we encounter something in nature that is complicated or mysterious, such as the flagellum of a bacteria or the light made by a firefly, we don’t have to shrug our shoulders in bewilderment.
"An attitude toward evidence" is liberating and can contain "a profound optimism." There were people in our culture who objected to "The Martian" because it was a narrative of the capacity of human intelligence to master nature through problem solving (much as Robinson Crusoe did). The politics of anti-science, which has antecedents in Plato's rejection of the empirical, and of treating truth as "problematic," is a failure of nerve regarding evidence, and its fruits are pessimism and, carried to an extreme, nihilism. "A society where ideology is a substitute for evidence can go badly awry." A society where the Chief Executive has a snowballing credibility problem can destabilize the public order and delegitimize its own government.
Also ten years ago, Stephen Pinker noted the tendency to regard propositional statements (such as "all people are created equal") as loyalty oaths: "People have a nasty habit of clustering in coalitions, professing
certain beliefs as badges of their commitment to the coalition and
treating rival coalitions as intellectually unfit and morally depraved."
Intellectual intimidation, whether by sword or by pen, inevitably shapes the ideas that are taken seriously in a given era, and the rear-view mirror of history presents us with a warning.
Time and again, people have invested factual claims with ethical implications that today look ludicrous. [...] The foisting of "intelligent design" on biology students is a contemporary one. These travesties should lead us to ask whether the contemporary intellectual mainstream might be entertaining similar moral delusions. Are we enraged by our own infidels and heretics whom history may some day vindicate? [...] When done right, science (together with other truth-seeking institutions, such as history and journalism) characterizes the world as it is, without regard to whose feelings get hurt. [...] the intellectual blinkers that humans tend to don when they split into factions. People have a nasty habit of clustering in coalitions, professing certain beliefs as badges of their commitment to the coalition and treating rival coalitions as intellectually unfit and morally depraved. Debates between members of the coalitions can make things even worse, because when the other side fails to capitulate to one's devastating arguments, it only proves they are immune to reason. In this regard, it's disconcerting to see the two institutions that ought to have the greatest stake in ascertaining the truth -- academia and government -- often blinkered by morally tinged ideologies. [...] It's hard to imagine any aspect of public life where ignorance or delusion is better than an awareness of the truth, even an unpleasant one. Only children and madmen engage in "magical thinking," the fallacy that good things can come true by believing in them or bad things will disappear by ignoring them or wishing them away. (Emphasis added)
When the Oval Office is under the Babylonian captivity of an incompetent pretender obsessively engaged in "magical thinking," where news articles are beginning to use "unhinged" as a reasonable description, the ability to rise to a reasonable response to real crises is increasingly in doubt. Imagine the vulgar disgusting person who now represents our nation to the world driving "most of the night across France and northern Italy" because of idealism and the love of knowledge. Imagine "a wonderful day" devoted to what is inspiring. Imagine that our government once again included someone who could say, "We choose [to do these] things, not because they are easy, but because they are hard."
