Eleanor Finch
The Constitution of the United States was established to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. In the US, certain officials are bound by an Oath of Office to support and defend the Constitution. This includes the President, members of Congress, and members of the Army. The oath requires them to commit to abiding by the constitutional system and not using illegal or unconstitutional force to change it. The Supreme Court has clarified that the oath does not intend to impose obligations of specific, positive action on oath-takers.
| Characteristics | Values |
|---|---|
| Members of Congress | Required to take an oath to support and defend the Constitution |
| Congresspeople | Required to take an oath to support and defend the Constitution |
| The President | Required to take an oath to preserve, protect and defend the Constitution |
| Attorneys | Required to take an oath to support and defend the Constitution |
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What You'll Learn
The US Constitution is timeless and unchangeable
The US Constitution is a declaration of the type of government established by "We The People", who also enumerated the powers of said government. The federal government had no say in the matter and was created and empowered by the people, who retain the right to change it. The Constitution is timeless and unchangeable, and any laws that go against it are null and void.
The US Constitution also lays out the powers of the federal government, including those of Congress. However, Congress often passes laws that exceed the authorities listed in the Constitution or delegates its powers to the executive branch. This is an infringement on the Constitution, which is meant to protect against an overreaching government.
To defend the Constitution, many people, including members of the military, Congress, and the Senate, take an oath of office. This oath is a promise to support and defend the Constitution against all enemies, foreign and domestic. It is an acknowledgement that the ultimate power lies with the people, and that the government is bound by the rules and limitations set by the Constitution.
The Sixth Amendment of the Constitution provides protections for defendants in criminal prosecutions, including the right of the people, not the state, to judge. The Seventh Amendment further protects defendants in civil cases, preserving the right to a trial by jury. These amendments ensure that the power lies with the people and cannot be taken away by the government.
The US Constitution is a timeless document that cannot be changed by construction. It serves as a foundation for the American government and outlines the rights and powers of its citizens. Any attempts to narrow or negate these rights are impermissible, and the Constitution remains the ultimate authority.
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The people are the source of constitutional power
The US Constitution is a declaration of the type of government "We The People" wanted, outlining the powers that the people would allow it to have. The federal government had no say in the matter; it was created and empowered by the people, who retain the right to change it. This view has been consistently recognized by the Supreme Court.
Thomas Paine, Madison and Jefferson, John Quincy Adams, and James Wilson all agreed that the source of all constitutional power is the people. The people created a balance of power by spreading the federal government’s powers amongst three branches. This was to protect against an overreaching government.
The people also refused to ratify the Constitution without certain minimal guarantees, which were established with the first ten Amendments, collectively known as the Bill of Rights. The Sixth Amendment, for example, provides protections for defendants in criminal prosecutions, including the right of the people, not the state, to be the judge. The Seventh Amendment also provides protections to defendants in civil cases (lawsuits), where again, the people judge, not the state.
The people also define what common law is, not the government. Bouvier’s Constitutional Law Dictionary, 1856 edition, defines common law as “That which derives its force and authority from the universal consent and immemorial practice of the People.”
The Constitution is more than just the Bill of Rights—it also lays out the enumerated powers of the federal government, and particularly Article I, Section 8, which lays out the powers of Congress.
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The jury's ability to declare innocence
In the United States, the President, members of Congress, and members of the Army are among those who take an oath to protect and defend the Constitution. The Constitution outlines the powers of Congress, including the legislative powers vested in a Congress of the United States, which consists of a Senate and House of Representatives.
The Sixth Amendment guarantees a defendant's right to a trial by an impartial jury. When a criminal case goes to trial, a jury typically decides the outcome, considering various pieces of evidence presented by the prosecution and defence. The jury's ability to declare innocence is a critical aspect of the justice system, upholding the principle of presumption of innocence. This presumption can be overcome only if the prosecutor proves guilt beyond a reasonable doubt.
Jury nullification, also known as jury equity or a perverse verdict, is a significant aspect of the jury's power. It refers to a jury's decision in a criminal trial that results in a "not guilty" verdict, even if the jury believes the defendant has broken the law. This can occur when jurors believe the law itself is unjust, the prosecutor has misapplied the law, or the punishment is too harsh. Jury nullification has been used historically to oppose unjust laws, such as those penalizing runaway slaves or prohibiting alcohol during Prohibition.
In some cases, a single juror maintaining a "not guilty" verdict can result in a hung jury, where no final judgment can be made. While judges typically instruct jurors to accept their interpretation of the law, jury nullification remains a controversial and complex aspect of the US legal system, with varying practices across different states.
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The constitutional oath of office
The obligation to defend the Constitution of the United States is not limited to one person but is a shared responsibility among various individuals in positions of power. The most well-known oath of office is that taken by the President of the United States. Before assuming office, the President swears an oath to "preserve, protect and defend the Constitution of the United States." This oath, administered during the inauguration ceremony, underscores the President's duty to uphold the nation's foundational document.
Similarly, members of Congress, including senators and representatives, are also bound by an oath to "support this Constitution." The First Congress, convened in 1789, established a simple oath: "I do solemnly swear (or affirm) that I will support the Constitution of the United States." This oath affirms their commitment to upholding the Constitution as they create laws and conduct legislative business.
The history of the oath of office is worth noting, particularly the evolution of the Ironclad Test Oath during the Civil War. In 1861, President Abraham Lincoln mandated that all federal civilian employees within the executive branch take an expanded oath, pledging their support for the Union. The Ironclad Test Oath, introduced in 1862, required civilian and military officials to declare that they had never provided aid or encouragement to those engaged in armed hostility against the United States. While this oath was initially resisted by Congress, many senators voluntarily took it, and in 1864, a resolution was passed to make it mandatory for all senators.
The oath of office extends beyond the legislative and executive branches. For instance, military personnel also take an oath to protect and defend the Constitution. Furthermore, attorneys and other legal professionals are often required to take an oath of office, which includes defending the Constitution against all enemies, foreign and domestic. This oath underscores the commitment to uphold the rule of law and the principles enshrined in the Constitution.
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The constitutional system and revolutionary violence
The US Constitution is a document that establishes the country's governing principles and outlines the powers of the federal government. It is the source of all constitutional power, and this power ultimately belongs to the people. The Constitution is defended by various oaths of office, which are sworn by government officials, military personnel, and attorneys. These oaths typically include a pledge to support, protect, and defend the Constitution against all enemies, foreign and domestic.
The obligation to defend the Constitution is not limited to words but can extend to actions and even one's life. However, the Supreme Court has clarified that oaths of office do not compel the oath-taker to meet force with force. Instead, it is a commitment to abide by the constitutional system and not use illegal or unconstitutional means to change it. This interpretation ensures that those who swear to defend the Constitution are not obligated to use violent means to do so.
The concept of revolutionary violence in the context of the Constitution is complex. While the state does not have a monopoly on permissible violence, revolutionary violence carried out by the majority of the people or with their general approval could challenge the authority of the government. In such cases, government attempts to control or suppress this violence may be impermissible. However, it is important to distinguish between permissible revolutionary violence and impermissible means of seizing power, such as those advocated by some far-right groups, which involve violence, cruelty, and indiscriminate terror.
The obligation to defend the Constitution extends beyond passive adherence to active preservation. This includes upholding the principles established by the Constitution, such as justice, domestic tranquility, and the general welfare of the people. It also involves ensuring that the federal government operates within the boundaries of its enumerated powers, as outlined in the Constitution. Congress, for example, must pass laws that align with its constitutional authorities and avoid unconstitutionally delegating its powers to the executive branch.
In conclusion, the constitutional system is defended through oaths of office and a commitment to abide by the constitutional system and principles established within the Constitution. Revolutionary violence, while complex, can be permissible when carried out by the majority of the people or with their approval, challenging the authority of the government. However, the obligation to defend the Constitution does not condone impermissible violence or the use of force to meet force. The focus should be on restoring or improving the constitutional system through lawful means.
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Frequently asked questions
Members of Congress, federal civilian employees within the executive branch, civilian and military officials, and senators all have to take an oath to defend the constitution.
The oath to defend the constitution is a pledge to support and defend the constitution against all enemies, foreign and domestic. It is an oath to abide by the constitutional system and not use illegal or unconstitutional means to change it.
In the case of Cole v. Richardson, a prospective Massachusetts state employee refused to take the oath of office on the grounds that it was unconstitutional. The US Supreme Court upheld the oath, concluding that it did not compel the oath-taker to meet force with force but only to commit to the constitutional system.
