James Wilson Institute director Prof. Hadley Arkes responds to a side conversation taking place in the broader discussion over Adrian Vermeule’s “common good constitutionalism” – the debate over one’s oath to the Constitution. Multiple commentators have argued that abandoning originalism leads judges to violate their oaths to uphold the Constitution. Prof. Arkes finds instead that looking beyond the text of the Constitution to its underlying principles was presumed by the conduct of the Founders. Hamilton and Madison argued over the meaning of the Constitution despite being perhaps the two greatest authorities on the subject, both demonstrating appeals to extra-constitutional principles to justify exertions of constitutionally appropriate power. Similarly, Lincoln was able to take his oath in 1861 because the oath bound him to the higher principles the Constitution is founded on and not primarily the Dred Scott decision with which he disagreed. Ultimately, Prof. Arkes sees the debate over oath-breaking as little more than a clever distraction from the substantive questions of the debate between originalism and Vermeule’s proposal.
Some quotes from the article:
“My concern, again, is that the argument over the oath has been a stylish ‘changing of the subject.’ That sense of a distraction at work is sustained by the fact that the argument has lingered in the cloud of abstraction. We have been putting off the question of what difference it would make for our jurisprudence if we were to judge Originalism against the alternative that Adrian Vermeule would offer.”
“It seems to me that the central vice of some of the people making the argument over oaths is this: they find it hard to recognize that the understanding of the Constitution may depend on our ability to reach back to those principles of law that were there before the Constitution, the principles that the framers drew upon as they shaped the structure of the Constitution.”
“[O]thers of us will be compelled to say that what others celebrate as ‘neutrality,’ we would name more plainly as moral emptiness. And if this is what conservative jurisprudence tries to celebrate with a brave face, it simply exposes itself, in Matthew Peterson’s winged phrase, as a jurisprudence and ‘antipolitics of ‘principled’ loserdom.'”
Read the full article here.