Evan D. Bernick (Law Clerk to Judge Diane Sykes, Seventh Circuit) has posted The Morality of the Presidential Oath (Ohio Northern University Law Review, 2020) (59 pages) on SSRN. Here is the abstract:
Alone among federal officeholders, the President of the United States is required by the Constitution to make the following public promise:
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.
It is uncontroversial that this promise is meaningful and that the President is obliged to keep it. But what exactly does it mean—and what is the content of the President's obligation? What is "the Constitution of the United States"? The text of a document? An aggregation of past mental states—say, the intentions or expectations of the framers or ratifiers of that document? A set of moral concepts? A collection of doctrines laid down by the Supreme Court? All of the above? And why ought the President act in accordance with the Constitution—whatever it is?
This Article argues that the President's oath underwrites a moral obligation to fulfill a set of legal obligations. Specifically, the President incurs a promissory obligation to comply with and support a particular Constitution—an entity constructed in 1788, supplemented since, and sufficiently morally legitimate to be implemented today. The obligation is limited and contingent, as are all promissory obligations. But it is weighty enough to bridge the gap between what the law is and what the President ought to do in office. The Article provides a framework for implementing the oath and also discusses the conditions under which the oath ought to be broken.
UPDATE: At Legal Theory Blog, Larry Solum says: "Highly recommended."
Posted at 6:37 AM