Oath to Uphold Constitution Is an Active Duty

Gerald J. Whalen

“Irish, both sides. Mother and father. I'm Irish and you're German. But what makes us both Americans? Just one thing. One. Only one. The rule book. We call it the Constitution, and we agree to the rules, and that's what makes us Americans.” 'Bridge of Spies', Dir. Steven Spielberg, Dreamworks et al., 2015. We are a nation that combines immigrants, the descendants of slaves and indigenous peoples. Our diverse ethnic heritages preclude national consensus on common traditions, religion, language, or food. What defines us as Americans is something different: It is our belief that certain inalienable rights exist in a just society, including the expectation of fair treatment, recognition that no individual or group is above the law, protection from unjust intrusions and takings, and, of course, the pursuit of happiness. The touchstone of this common belief is the Constitution. This rule book codifies our agreement on our fundamental principles and permeates our daily lives, whether judge or student, barber or banker. As Justice Robert H. Jackson once said, democracy “is not a theory of officialdom; it is a habit of the American people.” Robert H. Jackson, “Is Our Constitutional Government in Danger?,” Town Meeting, Vol. 5 No. 4 (Nov. 6, 1939). Many of us entered law school inspired by the Constitution and the principles of our founders. Even those members of the Bar who pursued the law for, shall we say, more practical reasons are nonetheless taught to give reverence to those principles. We learned to value and respect the Constitution through the opinions of Justices Holmes, Cardozo, Learned Hand, Jackson, and now Justices Ginsburg and Sotomayer. We learned that dissent is healthy. We learned that passionate discussions have been and will continue to be had about the meaning to be afforded to the specific words chosen for the embodiment of our principles. But the bones of the document, the fundamental promises that are embodied in the Constitution, are not in dispute. We now keep those promises. Our training culminated in a pledge, simple in its wording but heavy with responsibility: We will support the constitution of the United States, and the state of New York, and we will faithfully discharge the duties of office of attorney and counselor-at-law, according to the best of our ability (NY Const., art XIII, §1). These words are not empty and discharging the duty is not easy. There have been times in our history when we allowed ourselves to wander away from our foundation. Lincoln suspended the writ of habeas corpus, a cardinal principle that the Constitution recognizes as “essential to the liberty of the citizen,” despite his lack of constitutional authority to do so being “too plain and too well settled to be open to dispute” (Ex parte Merryman, 17 F. Cas. 144, 148 [CC D. Md. 1861] [Taney, C. J.]). The Supreme Court ratified the internment of American citizens because they were “born of different racial stock” (see Korematsu v. United States, 323 U.S. 214, 243 [1944] [Jackson, J., dissenting]). During McCarthyism, Congress “improperly s[ought] to try, convict, and punish suspects” in violation of the separation of powers and infringed First Amendment rights “through exposure, obloquy and public scorn” (Barenblatt v. United States, 360 U.S. 109, 136-37, 140-41 [1959] [Black, J., dissenting]). These events remind us that, often, our failure to adhere to our core principles results not from malice or greed, but from fear and a desire to protect those we love. Justice Black, in concluding that the actions of the House Committee on Un-American Activities were in violation of the Constitution, did “not question the Committee’s patriotism and sincerity in doing all this” (id. at 159). The relevant question was nonetheless “whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free.” (id. at 162). Our past failures are not a sign of a weak foundation. The Constitution, subjected as it has been to over 200 years of challenges and analysis, is structurally strong. Instead, these lapses serve as a reminder that it is not just our leaders who are tasked with responsibility; rather, our oath to uphold the Constitution is an active duty assignment. Vigilance may not require perfection; nonetheless we are expected to be perfect in our earnestness to fulfill our duty. The promises that have been made require no less.