Subtitle: The Article VI Placebo
There are some bright guys at The John Birch Society (JBS). Since I share their exasperation with Washington DC I wish they devoted more of their intelligence to study. In particular they should look both closer at, and beyond, Article VI.
The pertinent clauses of Article VI are frustratingly brief. The Constitution, laws pursuant thereof and treaties are the supreme law. Judges and everyone else in the state and federal governments are “bound by oath or Affirmation, to support this Constitution.” Well, there you go. JBS relies on Article VI to restore Constitutional government. Just send better people to DC. Send folks who really, really mean to follow the Constitution. Somehow, they’ll save our decks-awash ship of government and set a new course in liberty. This is also the excuse Leftists hoist to rationalize the failures of socialism.
Just what did the Framers mean by “support this Constitution?” Is it vague? The drafters could not have thought, could they, that the Constitution was entirely unambiguous, that one and all, judges, legislators, and the sovereign people would, upon confronting its application, come to the same conclusions? Not likely.
Similar oaths go back to ancient times. The Article VI oath is a cousin of the Athenian dikastic oath, where the dikasts’ oath embodied the fundamental statement of Athenian jurisprudence. In swearing it, Athenian dikasts (judges) solemnly declared that reason guided their judicial decisions. The oath included two key elements: first, that they cast their decisions ‘according to the laws’ and second, that they do so by their ‘most just understanding’ Imagine if the now-retired Anthony Kennedy and the fab-four progressives on Scotus had kept to law and reason.
Unlike dikastic oaths, the Article VI oath doesn’t neatly identify a central tenet of constitutional faith. Without a written central tenet, does it invite sophistry? I don’t believe so. Like oaths to sovereign English monarchs, the Article VI oath is, in actuality, also made to a sovereign: We the People.
Chief Justice John Marshall (1755-1835) wrote there was a point to the oath, in that “it is apparent the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. If the Constitution forms no rule for … government (or) for a judge, then the oath becomes … a crime,” and “is worse than solemn mockery.” Public servant failure to abide by the Constitution is akin to treason, insurrection, rebellion and sedition.
While I join the JBS in sympathy in wishing all judges, politicians and bureaucrats followed the letter of the written Constitution, there are at least two reasons why this is as fanciful as the Left’s dream of perfect social justice.
First, while every patriot respects our Constitution with secular reverence, it isn’t the day-to-day Constitution that guides government. A true constitutionalist bureaucrat would refuse to enforce the myriad regulations that, for instance, abuse the Commerce Clause. But, thanks to the Scotus’ 1942 Wickard v. Filburn decision, the administrative state follows a living and breathing Constitution amended dozens of times by the Scotus. It is a phantasm for the JBS to think everyone in government, at the expense of their jobs, will stand athwart several generations of Scotus revisions to the Commerce Clause.
Second, the 17th Amendment renders obedience to the written Constitution all but impossible. Our Framers knew very well of popular pressure on elected officials to soothe life’s tribulations and what they called the “levelling” instinct common to self-governing societies. To counter this certainty the Framers created a legislative chamber for the other traditional members of the American polity and governing scene: the states. Being state appointed, with fewer members and longer terms, the Senate was purpose-built as the deliberative, reflective and thoughtful body to counter wild populist bills expected from the House.
So, despite the everyday jargon our government hasn’t been federal since the spring of 1913. We live in a democratic republic in which two-year and six-year popularly elected politicians do what popularly elected officials do: avoid anything that might draw media criticism and keep up the flow of goodies to constituents. It is unavoidable.
Limitation to enumerated powers just doesn’t enter the equation. The JBS appeals to constitutional virtue are noble but unrealistic. Freezing a governing form while those in government corrupt it is to invite civil disorders. Instead, we the sovereign people must do our duty to protect ourselves and our posterity by calling an Article V COS to restore the Framers’ PROVEN form of government.
When our servants wander outside of enumerated powers, when judges make law, when presidents turn the IRS on conservative groups, they assault the sovereign. The solution isn’t to hope for better servants; the answer is for the boss, the sovereign, We the People to step up and slap the hired-help back to their proper places.