Thursday, January 18, 2007

What's wrong with the un-oath

In the Cap-Times, John Nichols asks about what is wrong with the "I don't mean it" oath to uphold the state constitution authorized by the Madison City Council. Since he doesn't get it, I will explain.

Nichols wonders what is wrong with "coupling a declaration of loyalty to a constitution as it is currently written with a promise to work to make the document more reflective of the American promise that all citizens are deserving of equal protection?"

My answer is: nothing. Let me give you an example. Where I ever to be appointed to be a federal district judge or appointed to high federal office, I'd happily say - in a supplemental statement - that I would like to see the erroneous interpretation of the Constitution that confers a virtually unlimited right to abortion overturned. But, until it is, I would be bound - as an executive officer or inferior federal magistrate - to follow it.

In the unlikely event that I ever were nominated to the federal bench, you can bet your life that this would be the central issue in my confirmation hearing. Having said in public that I think Roe V. Wade was wrongly decided, would I - until it is overruled - uphold it? It's a legitimate question and my answer would be that I would. It would be my obligation.

The problem is that the Madison oath goes beyond a statement that "I will work to improve the constitution" and "I'll uphold it as written." It says that the vote to uphold the constitution is taken "under protest," IEEE, "I wouldn't do it unless someone made me." It pledges the oathtaker to work "to prevent any discriminatory impacts from its application."

The last part sounds good, but it's a sound bite. The people who are taking the oath "under protest" think that it is inherently discriminatory not to let two guys marry. The promise to prevent "discriminatory impacts," makes the alternative oath a simultaneous promise to uphold and to undermine our constitution. It's as if I swore to uphold Roe and to prevent its application from allowing any innocent human beings to be killed. I have promised to do two things that I think cannot be done at the same time. You wouldn't take it seriously and I don't take the Madison oath seriously.

Nichols would not be convinced by any of this because he thinks that not allowing people of the same sex to be married is tantamount to slavery or to not allowing women to vote, as if gays and lesbians are being held in involuntary servitude or denied the right to vote or to contract or to be employed. That's his privilege. But the majority of people in Wisconsin - at least outside the confines of Dane County (and maybe LaCrosse where the amendment lost by 16 votes) - disagree.

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