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Wednesday, February 4, 2009

The Irony of the Roberts/Obama Botched Swearing In

During the swearing in of President Obama by Chief Supreme Court Justice Roberts, both Obama and Roberts flubbed the words. I found this ironic, considering it seems that Obama may not really take the oath seriously to start with. I hope I am wrong.

First of all, the oath-taker swears or affirms that he will “protect and defend the Constitution of the United States.” This was significant when first written, considering that our predecessors took oaths to Kings, or a government or something like that. We swear to a piece of paper with writing on it. And this is the same oath taken by entering Congressmen, Judges, federal officials; I personally took this oath twice before joining the Army.

But one thing that many people forget is that this is not just some off-hand promise – this is an oath to God himself. It is unfortunate that, in the United States, we seem to have lost the importance of a person’s word. But are we even surprised, considering the U.S. divorce rate of over 40%, even among those who make an oath to God to respect the institution of marriage “till death do us part?” Despite the lack of surprise, however, the importance of such an oath can still not be overstated, regardless of how dishonest some, or even a majority of people may be. A person’s integrity, especially to God, is still his most important asset - at least as far as I'm concerned.

Part of the oath for those who serve in the Military is that you will obey the orders of those appointed above you. This was very difficult for me. Often the people appointed above you are not the most intelligent or well intentioned individuals. Obviously there is some underlying assumption that the people appointed above you will have some reasonable level of competency and integrity. However, I often followed orders I disagreed with and did not have to follow, simply because I had taken an oath to do so. If I was told to do something at 1 am, I was there at 1 am whether I was monitored or not - because I knew that at least God would be watching no matter what. I could not break my oath to him as long as the Army upheld some reasonable standard in regards to its end of the deal. I should expect the same from President Obama.

Here is another important note: the oath-taker takes an oath to "protect and defend the Constitution" – as opposed to an oath to protect and defend the American people, the U.S. government, the U.S. economy or Supreme Court precedents. The Constitution is not only the supreme law of the land, but it is superior to all other considerations. The premise is that if the principles outlined in this document are protected, then everything else will fall into place – it is not the destruction of our people, economy or government that we are to fear, but rather the destruction of the principles which make them work and worth defending. Roosevelt famously said, "we have nothing to fear but fear itself." This is true, but only because fear can lead us to destroy the very Constitution which gave rise to our security and prosperity to start with. The Constitution does not ask that much of us. Mainly it demands basic respect for humanity, respect for both individual-economic AND individual-social rights, presumption of innocence and limited governmental power. It is often vague and ambiguous. However, there are some points which are spelled out clearly.

Some have argued to me that the Supreme Court members, when making Constitutional decisions, should look to the precedents which were set by Courts before them. I find this argument incompatible with the oath of office taken by the Justices. Again, they do not take an oath to God to protect and defend the precedents, only the Constitution itself. If the Constitution itself conflicts with the precedents, the Constitution should always win.

This brings about the question of what should be questioned when the Constitution is at issue. Some say the Constitution is a “living document” and that its meaning changes with time. Certainly, the meaning of certain principles changes with the times, however, the real question is where should our commitments lie? Are we committed to preserving the principles of the Constitution as it was written, or some principles that Judges and Presidents decide on along the way?

As stated before, the central premise is that if we protect and defend this document, the vast majority of our commonly human problems will be avoided, while simultaneously allowing the succeeding generations the ability to deal with the various problems that come up along the way. For example, the Constitution clearly did not protect black people from slavery, and actually had certain provisions which helped entrench slavery. However, years later, this same Constitution provided the tools which made the abolishment unquestionable (the 13th amendment) and also provided the tools for the social movement which would bring black people through the civil rights movement. It is the protection of this document, through all of its tools (sometimes including the amendment process) that protect our nation from certain problems which would hinder us from preserving our security and prosperity.

In 1937, a revolution began the process of undermining the Constitution. The very document current Presdient Roosevelt was sworn to protect, he despised openly as he famously said that it was written for the time of “horses and buggies.” He openly admired the way Mussolini’s Italy was run, which was certainly not in keeping with our Constitutional principles of decentralized government. After having his revolution hindered for several years by the Courts which consistently found his socialist programs to be unlawful, Roosevelt then succeeded in packing the Court with judges who did not care about U.S. law as it was written. They created a new body of law which is based on judicial opinions, and not the Constitution – often called the view of the “living Constitution.” In my humble view, he broke his oath to God. To me, this leaves me with little to no respect for the man, regardless of how he may be characterized by some historians. (It should be noted that many historians have seriously questioned the hero-worship he has received).

We cannot know whether Justice Roberts is any better. He is a member of the Federalist Society, which is an organization which seeks to defend the view I am promoting. However, its most prominent member, Supreme Court Justice Antonin Scalia, has undermined the Constitution as well. For example, in a case called Gonzales v. Raich, Justice Scalia rationalized ignoring the plain English meaning of the Interstate Commerce Clause of the Constitution and the 10th amendment to the Bill of Rights. Many people may not like this, since this was a drug case, as a matter of opinion. However, the language of the document could not be more clear and there is an amendment process to deal with such objections. This is why I prefer Justice Thomas’s jurisprudence. He understands, much greater than Scalia, that Supreme Court precedent is subordinate to the Constitution itself.

So, although we cannot know so early how Robert's jurisprudence will come out, it is certain that Roberts will not completely ignore the Constitutional text, as his colleagues Breyer, Ginsburg, Souter, Stevens have – showing no regard for parts they do not personally approve of, and seeking erroneous intellectual justifications for opinions based on unconstitutional precedent, rather than the Constitution itself. Breyer actually has gone so far to say that certain opinions are “pretty well settled,” rather than even bothering to refer to the actual text of the Constitution. Although Roberts is a President Bush appointment (and President Bush was not exactly known to be a champion of the Constitution) President Bush's appointees tended to be very good jurists. It is especially note-worthy that President Bush almost never won a case in front of his own appointees.

Obama has been clear where he stands. He is a former Constitutional Law professor and University of Chicago. He is part of the crowd which seeks to undermine the protections of the Constitution that he does not like, promoting the idea that the Constitution is supposed to change as certain politicians and judges change. Again, because of this lack of respect for a divine oath, and the Constitution itself, I found the botching of the swearing in itself ironic. Although both Obama and Roberts are to blame for the mistakes, we know that Obama, like far too many married couples today, and many soldiers I worked with who disobeyed orders, probably simply does not take the oath to God seriously.

I hope I am wrong. We will see in the coming years.

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