Thread by @jedshug

The argument "The Constitutional Oath Requires Originalism" is ironic.

Because its anti-pluralist/orthodox view of oaths is inconsistent with the original public meaning and constitutional text on oaths.

Start with @GGKrishnamoomoo @erikencarnacio2:

https://twitter.com/GGKrishnamoomoo/status/1261688928597430274?s=20

Their rebuttal to @crgreen24601 @evanbernick:
Oaths drafted by the 1st Congress:
"I will faithfully & impartially...perform all the duties incumbent upon me, according to the *best of my abilities* & *understanding*, agreeably to the constitution"

But wait. There's more. 2/

3/ Let's go directly to the text of the Constitution.

The Framers deliberately used the phrase
"OATH OR AFFIRMATION"
*4 times*
because of their religious toleration of Quakers and (to use an anachronistic term) pluralism.
Here is Art. I, Sec. 3:

4/ Presidential Oath of "faithful execution," which @andrewkent33 Ethan Leib & I have explored.

A) "Oath or Affirmation"
B) “I do solemnly swear (or affirm)"
C) "good faith"
D) "best of my Ability"

We show it had legal significance, but not monistic objective orthodoxy.

5/ Our study of "faithful execution" as a legal requirement of good faith & a forerunner to fiduciary law of offices from the Magna Carta to the Constitution is here.
Of course, there is some anti-tolerant anti-Catholic orthodoxy in the English history...
harvardlawreview.org/2019/06/faithf…

6/ But the constitutional text shows the lessons of that history:
Toleration for religious dissenters.

Art VI's Oath of Office clause:
"Bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office"

7/ And the Bill of Rights.
You might think first of the pluralism of the Establishment Clause and the Free Exercise clause.

You make a good point.

But I'm thinking more specifically of the 4th Amendment "Oath OR AFFIRMATION"

8/ Only once does the Constitution mention "oath" without "affirmation."
And that's the 14th Amendment on Civil War treason/insurrection/disqualification - really a shorthand.

8/ I'm sure I'm missing something in the papers, but so far I'm struck by how @crgreen24601 & @evanbernick emphasize present-day evidence about oaths.

In the 1787 Convention, the salient debate on oaths was our quintessential pluralism:
A federalism debate of mixed loyalties...

9/ See Farrand, Vol 1, 203-207 (June 11). Federalism/states' rights concerns from Roger Sherman & Elbridge Gerry:
Gerry “suppose[d] that the national legislators ought to be sworn to preserve the state constitutions, as they will run the greatest risk to be annihilated.”

10/ How did the Convention resolve the conflict between oaths/affirmations to states vs. Union?

Pluralistic understandings of oaths.

Originalist dual sovereignty federalism/pluralism.
Not nationalist orthodox monism.

Ironic for the Oath = Originalism Orthodoxy Argument, eh?

11/ Sorry I was late to this debate & missed some twists.
@WilliamBaude suggests more work on oaths.
@kellenfunk is doing great award-winning work.
@RichardMRe has intriguing non-originalist arguments.

I just wanted to flag the historical & textual questions in this thread...

12/ The revolutionary war problem we discussed in our "Faithful Execution"/presidential oath article w/ @andrewkent33 & Leib is not a great example for the "objective" exclusivity of oaths, b/c it was a simple oath of allegiance, marking a bright line between Britain and America.

13/ And it didn't really work very well. Dual loyalty was a pervasive problem on the ground, Hyman shows.

But the bigger problem for Bernick and Green is the Convention. Not only June 11 cited above, but also July 13 (Farrand I: 84-87)

14/ This is material on the Convention we cut from our Faithful Execution article b/c of length.
Note Rufus King seems to be consistent with Green/Bernick's exclusive understanding.

But the Convention appears to have disagreed, settling on pluralism of federalism (Farrand II:92)

15/ My discussion of Harold Hyman's "To Try Men's Souls" on the Founding's resolution of oaths, pluralism, and dual loyalty to nation and state: