Constitution Foes: Punitive Measures Or Rehabilitation?

The concept of enemies of the constitution is a significant one in the political discourse of many nations, particularly those with a strong emphasis on constitutional law, such as the United States. In the US, all federal government employees, including the President, members of Congress, military officers, and civil servants, take an oath of office, swearing to defend the Constitution against all enemies, foreign and domestic. This oath has been a topic of debate, with scholars arguing for a narrow interpretation, referring to political reforms outside the Constitution, rather than a broad interpretation that could lead to independent enforcement by citizens. The designation of domestic enemies is complex, and while certain actions, such as aiding or encouraging persons engaged in armed hostility against the nation, are considered treasonous, the determination of enemies is not left to the military. This raises important questions about who decides what constitutes an enemy of the constitution and the consequences for those deemed as such.

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Enemies of the Constitution include those who have engaged in insurrection or rebellion against it

The US Constitution specifies that certain officials, including members of Congress, "shall be bound by Oath or Affirmation to support this constitution". This oath is also known as the Oath of Office. The oath states:

> "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

At the outbreak of the Civil War in 1861, President Abraham Lincoln ordered all federal civilian employees within the executive branch to take an expanded oath. This became known as the "Ironclad Test Oath", which required civilian and military officials to swear or affirm that they had never aided or encouraged "persons engaged in armed hostility" against the United States. Following the Civil War, some former Confederates were permitted to take only the second section of the 1862 oath, and an 1868 statute prescribed this alternative oath for "any person who has participated in the late rebellion, and from whom all legal disabilities arising therefrom have been removed by act of Congress".

In 1868, Congress permitted some former Confederates to take an alternative oath for those who had "participated in the late rebellion". This led to complaints of a double standard, as loyal Unionists were required to take the harsher first section of the Test Oath. In 1884, the first section of the Test Oath was repealed, leaving only the affirmation of constitutional allegiance.

The concept of a "domestic enemy" is not defined in federal law outside of the oath of office. Constitutional scholars argue that the oath should be understood narrowly, as a promise to oppose political reforms outside of the Constitution, rather than as an invitation for Americans to independently enforce their own views of the Constitution.

Those who have engaged in insurrection or rebellion against the Constitution are considered enemies of the Constitution and may be subject to legal consequences. This includes elected and appointed officials of the federal government who have broken their oath of office by supporting or engaging in insurrection or rebellion.

The Ironclad Test Oath was introduced to prevent those who had aided or encouraged persons engaged in armed hostility against the US

The Ironclad Test Oath was introduced in 1862, during the American Civil War, to prevent those who had aided or encouraged persons engaged in armed hostility against the US. The oath required federal employees, lawyers, and federal elected officials to swear that they had never supported the Confederacy. This included swearing that they had "never voluntarily borne arms against the United States" and had not "voluntarily" given "aid, countenance, counsel, or encouragement" to persons in rebellion.

The oath was initially voluntary, but in 1863, Massachusetts senator Charles Sumner offered a resolution to make it mandatory for senators. This led to a debate about the constitutionality of the oath, with some senators arguing that Congress did not have the power to impose it on members. In 1864, Sumner succeeded in making the oath mandatory for all senators, resulting in the resignation of Delaware senator James Bayard in protest.

The Ironclad Test Oath was a critical factor in removing ex-Confederates from political office during the Reconstruction era of the late 1860s. It was also applied to Southern voters in the Wade-Davis Bill of 1864, which was pocket vetoed by President Abraham Lincoln as he considered it too harsh. Lincoln, however, believed the Ironclad Oath to be an essential part of Reconstruction. In 1867, the US Supreme Court held that the federal ironclad oath for attorneys and a similar Missouri state oath for teachers and other professionals were unconstitutional, as they violated prohibitions against bills of attainder and ex post facto laws.

The Ironclad Test Oath reflected the country's founding principles and emphasised the importance of loyalty and obedience to the laws of the land. It aimed to hold individuals accountable for their past actions and ensure their future commitment to supporting and defending the Constitution of the United States.

The Constitution does not define what constitutes a domestic enemy

The absence of a clear definition for "domestic enemy" has led to varying interpretations. Some well-meaning individuals may argue that certain groups or citizens constitute domestic enemies due to their actions or attitudes that seemingly threaten the Constitution. For instance, an Air Force colonel once asserted that perpetrators of sexual assault and harassment within the military could be considered domestic enemies as they revolt against civil order.

However, most Constitutional scholars, including Berkeley law professor Orin Kerr, advocate for a narrower interpretation. Kerr suggests that the oath should be understood in its historical context, emphasizing loyalty to a constitutionally-based government and opposition to political reforms that fall outside the Constitution. According to this view, the designation of any domestic group as an "enemy" without a declaration of war would be an unconstitutional bill of attainder.

It is important to note that the determination of who or what constitutes a domestic enemy is complex and cannot be left to the discretion of individuals or military officials. While there is no single entity that holds the authority to make such a designation, it is clear that the concept extends beyond mere differences in political beliefs or interpretations of the Constitution.

In conclusion, while the Constitution does not define what constitutes a domestic enemy, it is generally understood that domestic enemies are those who actively threaten the foundational principles and government established by the Constitution. The interpretation of this concept must be approached with caution to avoid infringing on the rights and freedoms guaranteed by the Constitution itself.

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Presidents, members of Congress, military officers, and civil servants take an oath to support and defend the Constitution

The Constitution is the foundation of the United States, outlining the rights and responsibilities of its citizens and government. It is the duty of those in positions of power to uphold and defend it, and this duty begins with an oath. This oath is taken by Presidents, members of Congress, military officers, and civil servants, and it is a promise to support and defend the Constitution against all enemies, foreign and domestic.

The oath taken by these officials is a sacred pledge to preserve the freedoms and principles outlined in the Constitution. It is a recognition of the importance of protecting the country from external and internal threats. The inclusion of "domestic" enemies acknowledges that not just foreign powers but also individuals and groups within the nation can pose a threat to the Constitution and the rights it guarantees.

The specific wording of the oath varies slightly between positions. The President's oath, specified in Article II, Section 1, Clause 8 of the Constitution, states:

> "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."

For members of Congress and other officials, the oath is simpler, stating:

> "I do solemnly swear (or affirm) that I will support the Constitution of the United States."

This oath, adopted in 1789, was expanded upon during the Civil War to address shifting loyalties. President Abraham Lincoln required all federal civilian employees within the executive branch to take an expanded oath, and Congress added the "Ironclad Test Oath" in 1862. This new section required officials to swear they had never aided or encouraged "persons engaged in armed hostility" against the United States.

The concept of a "domestic enemy" is a complex one. While it is not explicitly defined in federal law outside of the oath of office, it is clear that those who violate the Constitution, particularly those in positions of power, can be considered enemies. This includes government officials who break their oath of office by failing to uphold the Constitution or even actively working against it.

Some argue that those who violate the norms upheld by the Constitution are its enemies

The Constitution is a foundational document that outlines the rights and responsibilities of citizens and their governments. It is designed to protect individuals' unalienable rights, such as "life, liberty, and the pursuit of happiness". To uphold these principles, individuals in positions of power in the US Federal Government are required to take an oath of office, swearing allegiance to defend the Constitution against all enemies, both foreign and domestic.

While these actions may not be illegal, they are considered "bad acts" that undermine the principles of the Constitution. The military officer's oath, taken by all commissioned officers, includes a pledge to "support and defend the Constitution of the United States against all enemies, foreign and domestic". This oath was added by Congress in 1861 in response to the Southern states' rebellion, and it underscores the seriousness with which the nation views threats to its foundational principles.

However, the concept of a "domestic enemy" is complex and not explicitly defined in federal law beyond the oath of office. Constitutional scholars like Berkeley Law Professor Orin Kerr interpret the provision narrowly, stating that it should be understood in its historical context as a commitment to oppose political reforms outside the Constitution. This interpretation emphasizes loyalty to the government based on the Constitution rather than endorsing independent enforcement by individuals.

The debate over who constitutes a domestic enemy is ongoing, and it remains a tendentious issue. While some argue that those violating constitutional norms are enemies, others may disagree, highlighting the complexity of defining and addressing threats to the Constitution.

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