Understanding the Constitution #12: The Oath of Office is Not Just a Formality
Kevin Strong, a 44-year-old employee of the Federal Aviation Administration, was arrested as a result of the January 6th attack on the U.S. Capitol. Facing charges including violent entry and disorderly conduct, Strong may seem no different than others in that frightening mob. Yet one thing sets him and some others that day apart: they took an oath to the Constitution.
Timothy Hale-Cusanelli, a member of the U.S. Army Reserve, also participated. He took the same oath. Indeed, the number of active duty soldiers and law enforcement personnel, along with military veterans, involved is concerning given their training in the use of force. That concern led Secretary of Defense Lloyd Austin to institute a “stand-down” day for DOD military and civilian DOD personnel to revisit their oath and its requirement to abstain from and report instances of political extremism, racism and harassment.
Article VI of the Constitution requires all legislators, executive and judicial officers at the federal level and within states to take the oath. The first law of the First Congress in 1789 prescribed the wording. Added to since, the core is the same: “to support the Constitution.”
Most Americans don’t grasp how revolutionary this was and how special it remains. The oath is not to the president, one’s agency or supervisor. It does not, as in some nations, demand fidelity to a religion. Its vow is to a 233-year-old parchment.
If you work for Amazon or Tesla no oath is required. You are not duty-bound to the Constitution’s Preamble to establish justice, ensure domestic tranquility, promote the general welfare, and secure the blessings of liberty. In a nation dependant on millions of public servants, this makes public service a calling not a 9-5 job. It establishes a moral imperative, signaled by its opening phrase: “I do solemnly swear.”
That moral imperative was put to its severest test with Abraham Lincoln. Facing the onset of civil war, he told secessionists: “You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to "preserve, protect, and defend it."” For other public servants, the requirements of their oath may never be so dire. But as the charges against Strong and Hale-Cusanelli demonstrate, violations of the oath can have dangerous consequences.
The moral imperative for public servants requires balancing potentially conflicting roles: delegate and trustee. Everyone appointed to public service, rather than elected, has delegated authority from someone who was. This means they have an obligation to follow orders in almost every instance. Yet each is also a trustee of the Constitution, their ultimate superior. Donald Alexander, the IRS Commissioner, was asked by President Nixon to audit the tax returns of everyone on Nixon’s “enemies list.” As a delegate he had a clear order. As a trustee, he had a higher authority. He honored his oath and refused.
The moral imperative emphasizes character not just technical competence. Public servants must think for themselves about what integrity, honesty, and selfless service require. As Andrew Jackson put it, “Each public officer who takes an oath to uphold the Constitution swears that he will support it as he understands it and not as it is understood by others.” Alberto Mora, the Navy General Counsel after 9/11, discovered the use of torture against detainees at Guantanamo Bay and protested up the chain of command. As he put it: “Cruelty disfigures our national character. It is incompatible with our constitutional order, with our laws, and with our most prized values.”
The strength of American democracy depends on trust in government, which depends on government officials who honor their oath. Thus, results from the February 2021 Ronald Reagan National Defense Survey ought to concern us. While the military again ranked highest in terms of the percentage of Americans expressing a “great deal” of trust in it (56 percent), that level of trust dropped 14 percent since 2018. Among Americans under 30 – the future of the military and the nation - those expressing a “great deal” of trust reached only 38 percent. Law enforcement came in at 39 percent, the presidency at 30 percent and Congress at 10 percent.
The moral imperative of those who take the oath of office has been honored more often than most Americans appreciate. Margaret Chase Smith challenged her Senate colleagues to condemn the “hate and character assassination” of Joseph McCarthy. Elliott Richardson and William Ruckelshaus resigned rather than fire the Watergate Special Prosecutor. Frances Oldham Kelsey resisted pressure from the maker of Thalidomide to approve the drug for use. Brian Kemp and Brad Raffensperger upheld the legality of the 2020 Georgia presidential vote despite intense pressure to overturn it.
“A constitution is a standard, a pillar, and a bond when it is understood, approved, and beloved. But without this intelligence and attachment, it might as well be a kite or balloon flying in the air,” John Adams told us. All who take the oath of office know and must respect this. All other Americans need to appreciate that the oath exists.
Photo Credit: Lance Cpl. Adeline Smith
