January 27, 2013

“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.”

by Hal Gershowitz

Comments Below



Wow! That’s it. Just one brief sentence.  It contains the only obligation that President Obama and every other president in our history has been sworn to honor. The supreme constitutional responsibility of the President is to preserve, protect and defend our constitution.

But what exactly does that mean, and how seriously have our Presidents remained faithful to that solemn oath?  Well, it means exactly what it says.  There is nothing whatever ambiguous about the oath of office.  It is simple and it is direct.

The fidelity of our many Presidents to that oath, however, has varied greatly. There were many who were guided by their oath of office and they were among our greatest Presidents.  There were others who, in our opinion, treated it as an inconvenient encumbrance to their own grandiosity –a quaint relic — a museum piece.

Contemporary debates about the constitution coalesce around the notions of originalism on one end of the spectrum and that of a living constitution at the other end of the spectrum.   Some go so far as to describe the document as a living, breathing constitution.  Both views are, in our opinion, somewhat of a disservice to the Constitution and to the collaborative effort of the greatest thinkers in American history who produced it.

Originalism presumes we can divine how the framers would have decided a whole host of contemporary constitutional issues.  But there were, after all, a whole host of constitutional issues almost concurrent with the earliest breaths of the infant republic.  No one had to wonder what the framers thought, because they were all right there. But they couldn’t always agree on how the Constitution should be interpreted.  There were major constitutional crises during the first Washington Administration and bitter disputes among the founders.  In fact, Jefferson resigned as Washington’s Secretary of State because of disagreements with the President, and the two men never spoke again. Go figure.

Suffice to say, our ability to understand original intent is severely burdened and often irrelevant given the world in which we live today compared to that which informed our founders.

Conversely, there are those who embrace the notion of a living constitution as license to manipulate the constitution to fit their particular agenda(s). They seem to view the Constitution as one might view grammar; that is, something that changes with usage.

That thinking, in our judgment, would subject the constitution to the death of a thousand cuts and, in a matter of time, the republic as well.

So, what then, is our view of the constitution’s role in an ever-evolving America? It is, we think, to provide an over-riding vision and philosophy regarding the relationship of the people to the republic, and of the republic to the states that comprise the union.  This is no small matter.  If we get this wrong, America fails to be America.

America was the first nation that, at its creation, carefully, thoughtfully and rather severely limited the powers it could bestow upon itself then, or in the future.  Presidents representing both parties have, during our history, tried to trample upon that principle when it suited their interests or their particular ambitions.

John Adams had no trouble enforcing the odious Alien and Sedition Act, which shredded the right of free speech if that speech was too harsh with respect to his Administration. Abraham Lincoln suspended habeas corpus during the Civil War. FDR tried a heavy-handed stacking of the Supreme Court, which had ruled that many of his New Deal initiatives were unconstitutional. Richard Nixon…oh, why even go there.

Barrack Obama, shortly before he came to Washington, publicly lamented that the Constitution focused too much on what the federal government could not do, at the expense of what it should be obligated to do for the people. And just last week a federal appeals court unanimously ruled that President Obama’s “recess appointments” to the National Labor Relations Board were unconstitutional because the Senate wasn’t in recess. Obama, sensing that his nominees to the Board were too pro-union to make it through the Senate confirmation process simply tried to sidestep the process during the holidays. “Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” the court ruled.

On the question of the proper and prescribed role of government the founders could not have been clearer.  We would be a government of substantially limited federal power. They wrote an amendment, the tenth, which is part of our Bill of Rights, that states that powers not specifically granted to the federal government are reserved to the States.

The legendary and famed Roman, Cicero, intoned that, “it is valuable to look to the words of our Founders, but it is more valuable to study the principles that inspired their words.” We ignore that wise counsel at our own peril.

Of course we needn’t troll back to Cicero for guidance regarding the wisdom of limiting the power of central governments.  The diminutive James Madison was, as a thinker, a giant among giants.   He fought to assure that the government established by the Constitution of 1787 would be a government of limited power and that the powers granted by the people to that government were to be very specifically spelled out within the document itself.  As the founders conceived it, government exists simply to secure the rights of the people.  This is a key point. Government neither creates nor assigns rights and obligations. No.  Its primary function is the protection of the rights of the people.

Madison and the other founders who crafted our founding documents understood that the best limitation on power was the extreme judiciousness with which it was granted in the first place.  The only federal powers that were legitimate were those that had been granted to the government by the people and very specifically enumerated in the Constitution.

“Herein granted” is a phrase that follows quickly after the Preamble of the Constitution. In Article I, the people proclaim: “All legislative powers herein granted shall be vested in a Congress….” Those two words, “herein granted” tell the entire story. This meant then, and means today, that the powers not given to the government were withheld from it.

That the founders, with their extraordinary brainpower, were all part of the American scene at the same time, focused on the same creative process, was, in our judgment, one of the great happenings of history. Their thinking is as fresh and exciting today as it was when first committed to writing over 230 years ago.  Ponder their words.

“The Tenth Amendment is the foundation of the Constitution.” – Thomas Jefferson

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, Federalist No. 45, January 26, 1788.

“Most bad government has grown out of too much government.”  Thomas Jefferson

“When governments fear the people there is liberty. When the people fear the government there is tyranny.” James Madison, Federalist No. 39, January 1788

”Freedom is lost gradually from an uninterested, uninformed, and uninvolved people.” Thomas Jefferson

“They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Benjamin Franklin

“There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” James Madison, speech to the Virginia Ratifying Convention, June 16, 1788

“But with respect to future debt; would it not be wise and just for that nation to declare in the constitution they are forming that neither the legislature, nor the nation itself can validly contract more debt, than they may pay within their own age, or within the term of 19 years.” –Thomas Jefferson.

All of which brings us full circle, back to the oath of office with its singular admonishment to preserve, protect and defend the Constitution of the United States. We the people should demand no less.

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4 responses to ““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.””

  1. jacqueline Rudman says:

    The people did speak at the last two presidential elections. The people wanted the government that the Progressive President Obama supported not the “You’re on Your Own” government that Mitt Romney was proposing. Therefore, we , the people have spoken.

    • We were not questioning the outcome of the just-completed (or any other) election. Being elected to office, however, doesn’t absolve a President from his or her responsibility “to preserve, protect or defend the Constitution of the United States.” Fortunately we have a judiciary to rule when a President (or the Congress) takes action that violates the Constitution.

  2. Mark J Levick says:

    The Constitution envisioned three separate branches, each with their own separate powers and roles so as to serve as checks and balances. The Legislative Branch, has chosen to cede it’s power to the Executive Branch by not contesting the President’s end run on the confirmation process be it the appointment of Czars or NLRB members and refusal to adopt a Budget. The appointment of judges has become totally political in support of the Party in power. Thus we are left with an Executive Branch with few checks and balance during periods when its followers control the Courts or at least one house of Congress. Liberals believe this is progressive when their guy wins and an abuse of the Constitution when the other side wins. The people are too busy trying to either protect what they have earned or the benefits Government has bestowed upon them to demand adherence to the principles set forth in the Constitution. Thus, we have more Government, more debt and less individual self reliance.

  3. Mel sinykin says:

    Congratulations, Steve, for your law firm making the list (#62) of Fortune’s “100 Best Companies to Work For.”

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