It seems pedestrian to note that not being elected means you don’t get to enter Congress, be paid too much to do too little, fantasize that you’re better than those who elected you to represent them (not the other way ‘round), and retire at nearly full salary after a couple of 113-day “years” full of 3-day “weeks”.
Perhaps it is even more pedestrian to note: No oath, no office.
…The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution… [emphasis mine]
A refusal to take the oath of office results in not being seated in the Senate or House chamber, the legislature of any State, the Oval Office or the office of State Governor (or the military – as military officers and cadets at our service academies must take the same oath).
Pedestrian? Perhaps. Important? Critically. Ignored? Constantly.
What is the oath of office?
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God. [emphasis mine]
How does this oath play in real life? Do lawmakers consider their oath of office more than window-dressing? Are there examples of lawmakers ignoring what they have sworn to uphold in order to gain their power, to bend the laws of the United States to their vision, rather than to the vision of those who wrote – and ratified – the Constitution, thereby creating the United States?
Legislation is subordinate to the Constitution, the “Supreme Law of the Land,” to which lawmakers swear their oath. Legislation which conflicts with the Constitution legislators are sworn to uphold is, and has been since Marbury v Madison (1803), unconstitutional.
If our representatives in government want to pass legislation contrary to the Constitution, and good reasons may exist for them to do so, they can – and must be required to (otherwise we live under the Rule of Man) – amend the Constitution to repeal all or parts of the Bill of Rights to which they object, or to introduce via amendment Constitutional exceptions they desire for the end they deem necessary. This is, after all – or at least was – a nation under the Rule of Law.
“It’s too hard and takes too long to amend the Constitution,” many say. Isn’t Liberty worth a little work? Our Founders fought and died for it.
The writer of A League of Their Own gave an answer for the Ages to a question about something being “too hard:”
“It’s supposed to be hard. If it wasn’t hard, everyone would do it. The hard… is what makes it great.”
Constitutional government is “hard.” “Everyone” is not “do[ing] it. “The hard… is what makes [America] great.”
Isn’t it time we demanded our legislative employees lived up to their oath, even if it is “hard”?
Let’s take a look at one hot-button in the culture wars, the 2nd Amendment.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The current – Constitutionally binding – interpretation of the Second Amendment by SCOTUS makes it clear that the 2nd Amendment is an individual right. Multiple SCOTUS and Appellate Court decisions (Heller, McDonald, Peruta, etc.) have held that the right of an individual citizen to keep and bear arms, within or without the home, “shall not be infringed.”
What has this to do with the Constitutional – Federal and State – oath of office?
No logical differentiation exists between refusing to take the oath, and taking it and ignoring it.
If one cannot be seated without taking the oath of office, one must be un-seated for ignoring that oath, for working against the Constitution one is sworn to uphold. Otherwise the oath itself has no meaning and should be relegated to the ash heap of history as an aristocratic embellishment from an earlier time. Such relegation would require an Amendment to the Constitution repealing the above-quoted portion of Article 6. That is how important the Founders – and the ratifying States who created the Federal Government – knew the oath to be: Deleting the oath to the Constitution requires altering the Constitution itself.
If the oath of office was so important to those who founded our nation and ratified our form of government that deleting it requires amending the Constitution, shouldn’t that oath be enforced on our employees?
Suppose a Senator or Representative or State Legislator takes the oath and is seated. Suppose further that he or she then introduces legislation in opposition to the current SCOTUS holdings on the 2nd Amendment by attempting to limit gun ownership, carrying, magazine capacity, etc. Since the Constitution clearly states our rights to “keep and bear arms shall not be infringed,” and since they have sworn an oath to that Constitution, the introduction of legislation infringing that right obviates that oath. The introduction itself is an affront to that oath, an attempt to infringe a Constitutional right. It is an attack on, the opposite of “supporting[ing] and defend[ing],” the Constitution, making them ineligible to hold their seat and thereby requiring dismissal from office.
Arguments regarding overturning the will of the people of their District/State are irrelevant; they must take the oath to be seated, regardless of being elected.
Arguments regarding ever-changing societal mores and future desires of society to restrict guns are irrelevant to any argument regarding legislation which is, by definition, subordinate to our Constitutional rights: If the Representative or Senator desires to change Constitutional rights over which they have no purview other than the introduction of amendments, they are perfectly capable of introducing an amendment to achieve their desired end. (That they refuse to do so speaks volumes regarding their knowledge that the probability of repealing the 2nd Amendment is zero. It is not the pro-2nd Amendment American who is “out of the mainstream.”)
Altering the Constitution via amendment does not overturn an oath to that Constitution; in fact, it strengthens it by acknowledging the Constitution as, the “Supreme Law of the Land.” Introducing legislation altering the Constitution outside of the amendment process as defined in Article 5, on the other hand, violates their oath to that same Constitution. Rather than “protect and defend,” they are attempting to overturn legislatively a significant right enshrined within that Constitution – historically a right without which the Constitution would not have been ratified and the United States would not exist.
Each chamber of the Legislative Branch, House and Senate, unsupervised by a president and his veto pen, gets to make the rules under which it operates. The GOP now controls the Legislative Branch and (ostensibly) believes in Constitutional government. A rule putting legislators on notice that they must obey their oath – or lose their office – would seem a logical rule to pass and enforce. How would any argue against it? How would they vote against keeping their oath?
Other than leaving open an avenue to covertly tamper with our Constitutional rights, what could be their objection?
A congressional Rule requiring the immediate dismissal from office in the event of the introduction of legislation contrary to their oath of office, the only purpose of which is to abridge the rights of citizens as enshrined in the Constitution legislators are sworn to support and defend, must be introduced and passed.
Enforcing this rule would require a non-partisan, not-publicly-elected officer or officers of the Legislative Branch. In the House, perhaps the Sergeant at Arms, “…the chief law enforcement and protocol officer of the House of Representatives…”), or the Legislative Resource Center of the Office of the Clerk (“…supply[ing] House Members with the documents under consideration on the House Floor”) would handle this function. In the Senate, the Sergeant at Arms would be the logical one to enforce this rule.
The Sergeant at Arms serves as the executive officer of the Senate for enforcement of all rules of the Committee on Rules and Administration regulating the Senate Wing of the Capitol and the Senate Office Buildings and has responsibility for and immediate supervision of the Senate floor, chamber and galleries. The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States. [emphasis mine]
If our legislators are unwilling to hold themselves accountable to their own oath to our Constitution, we – their employers – must know this and must replace them with legislators who are.
At the very least, this rule (exceptions to which doubtless will be “discovered”), would more tightly focus those we hire to make our law to do so within the confines of the same Constitution we hire them to uphold.
(Update: Surely the extension of lawmaking into the Executive Branch via Regulatory Agencies, in itself a violation of the first sentence of the Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” requires the regulators to abide by the same oath – and follow the Bill of Rights – as those illegally extending to the Executive Branch the power to deprive citizens of liberty and property – which is the role of lawmakers. But: “[t]he Federal Election Commission (FEC) is holding a hearing today [2/11/2015] to receive public feedback on whether it should create new rules regulating political speech, including political speech on the Internet,” a blatant, in-your-face violation of the First Amendment.
(“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
(Delegating to the Executive Branch lawmaking powers the Legislative Branch is not allowed to delegate does not remove our First Amendment Rights. Even pursuing a discussion to create a regulatory vehicle to abridge our speech is a violent assault on the Bill of Rights, and on all Americans. In creating the regulatory body, Congress did not – can not – avoid the limitations placed on the Legislative Branch by the States who created that body by ratifying that Constitution.)