The Office of the Oath
Gudridge, Patrick O., Constitutional Commentary
There is little difficulty, Alexander Bickel declared, in concluding that the Constitution takes precedence in cases in which the Constitution and congressional legislation conflict. Whether, or in what circumstances, federal judges should assume the responsibility of deciding if there is such a conflict is a separate and ultimately more important matter. Marbury v. Madison therefore "begged the question-in-chief" (1):
[A] statute's repugnancy to the Constitution is in most instances not self-evident; it is, rather, an issue of policy that someone must decide. The problem is who: the courts, the legislature itself, the President, perhaps juries for purposes of criminal trials, or ultimately and finally the people through the electoral process? (2)
None of Chief Justice Marshall's arguments persuaded Bickel that active involvement of judges in constitutional interpretation is in any sense necessary. It "may be possible; but it is optional." (3) The fact that federal judges take oaths to support the Constitution, a matter of considerable relevance for Chief Justice Marshall, was--it seemed--especially beside the point:
This same oath ... is also required of "Senators and Representatives, ... Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitution. On one reading, the consequence might be utter chaos--everyone at every juncture interprets and applies the Constitution for himself. Or ... it may be deduced that everyone is to construe the Constitution with finality insofar as it addresses itself to the performance of his own peculiar function. Surely the language lends itself more readily to this interpretation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judiciary's oath to do the same, and that every official of government is sworn to support the Constitution as the judges, in pursuance of the same oath, have construed it, rather than as his own conscience may dictate. (4)
Professor Bickel proceeded too quickly. John Marshall might have readily agreed that judicial constitutional interpretation is "an issue of policy"--but he may well have thought (I will argue) that the presuppositions of the oath to support the Constitution provided that policy. He might have readily endorsed the proposition that "everyone at every juncture interprets and applies the Constitution for himself"--but he probably would not have viewed this state of affairs as "utter chaos." The presuppositions of the oath implied not only authorization for constitutional interpretation but also the requisite discipline.
Are such conceptions (conceptions Marshall might have plausibly held) of any pertinence now? I address this question last. It is first necessary to sketch what he might have taken "the presuppositions of the oath" to be.
This is the text of Chief Justice Marshall's discussion of oaths in Marbury:
Why otherwise does it [the Constitution] direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as --, according to the best of my abilities and understanding agreeably to the constitution and laws of the United States. …