The Oath of Office

[DGS49]

When a public official swears to "protect and defend" the U.S. Constitution, what does that actually mean?

Can a legislator, for example, without violating his/her oath of office, vote for a bill that s/he believes violates some provision of the Constitution, on the basis that it is not his/her job to make that determination - it is the job of the Federal Courts? Or should the decision to vote one way or another be based on that legislator's good faith opinion of the constitutionality of the bill in question?

It seems to me that any legislative initiative should be subject to a three-part evaluation, as follows: (1) Is it Constitutional, (2) Is it a good idea, and (3) is it fiscally prudent?

To give a specific example, what if the legislator considers that an initiative is a GREAT idea, but is totally unconstitutional? Let's say we have a draft law that provides for SOCIALIZED MEDICINE in the U.S. It is a system that is thoroughly thought-out, that avoids the various problems that exist in countries that have various forms of socialized medicine, and it virtually guarantees that every American will get wonderful health care from cradle to grave, at a cost that is reasonable for everyone?

Should the legislator vote for this law? (Hint: This law would be totally unconstitutional)

Secondary question: If the legislator votes for this law, is s/he violating his/her oath of office?

 

[Disir]

When a public official swears to "protect and defend" the U.S. Constitution, what does that actually mean?

Can a legislator, for example, without violating his/her oath of office, vote for a bill that s/he believes violates some provision of the Constitution, on the basis that it is not his/her job to make that determination - it is the job of the Federal Courts? Or should the decision to vote one way or another be based on that legislator's good faith opinion of the constitutionality of the bill in question?

It seems to me that any legislative initiative should be subject to a three-part evaluation, as follows: (1) Is it Constitutional, (2) Is it a good idea, and (3) is it fiscally prudent?

To give a specific example, what if the legislator considers that an initiative is a GREAT idea, but is totally unconstitutional? Let's say we have a draft law that provides for SOCIALIZED MEDICINE in the U.S. It is a system that is thoroughly thought-out, that avoids the various problems that exist in countries that have various forms of socialized medicine, and it virtually guarantees that every American will get wonderful health care from cradle to grave, at a cost that is reasonable for everyone?

Should the legislator vote for this law? (Hint: This law would be totally unconstitutional)

Secondary question: If the legislator votes for this law, is s/he violating his/her oath of office?

What section would that violate?

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

 

[Delta4Embassy]

When a public official swears to "protect and defend" the U.S. Constitution, what does that actually mean?

Can a legislator, for example, without violating his/her oath of office, vote for a bill that s/he believes violates some provision of the Constitution, on the basis that it is not his/her job to make that determination - it is the job of the Federal Courts? Or should the decision to vote one way or another be based on that legislator's good faith opinion of the constitutionality of the bill in question?

It seems to me that any legislative initiative should be subject to a three-part evaluation, as follows: (1) Is it Constitutional, (2) Is it a good idea, and (3) is it fiscally prudent?

To give a specific example, what if the legislator considers that an initiative is a GREAT idea, but is totally unconstitutional? Let's say we have a draft law that provides for SOCIALIZED MEDICINE in the U.S. It is a system that is thoroughly thought-out, that avoids the various problems that exist in countries that have various forms of socialized medicine, and it virtually guarantees that every American will get wonderful health care from cradle to grave, at a cost that is reasonable for everyone?

Should the legislator vote for this law? (Hint: This law would be totally unconstitutional)

Secondary question: If the legislator votes for this law, is s/he violating his/her oath of office?

How can an unconstitutional law be 'great?'

 

[Pogo]

I thought this was gonna be a thread about the actual oath itself, and whether it has the word "love" in it.

On the topic -- what Disir said in post 2.

 

[regent]

Do we obey laws today that later the Court declares the law unconstitutional?

 

[natstew]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

 

[regent]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

On that issue the Court has said no way.

 

[natstew]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

On that issue the Court has said no way.

Lazy assholes, that's what they were created for. I guess a full time job would interfere with their lives!

 

[PratchettFan]

When a public official swears to "protect and defend" the U.S. Constitution, what does that actually mean?

Can a legislator, for example, without violating his/her oath of office, vote for a bill that s/he believes violates some provision of the Constitution, on the basis that it is not his/her job to make that determination - it is the job of the Federal Courts? Or should the decision to vote one way or another be based on that legislator's good faith opinion of the constitutionality of the bill in question?

It seems to me that any legislative initiative should be subject to a three-part evaluation, as follows: (1) Is it Constitutional, (2) Is it a good idea, and (3) is it fiscally prudent?

To give a specific example, what if the legislator considers that an initiative is a GREAT idea, but is totally unconstitutional? Let's say we have a draft law that provides for SOCIALIZED MEDICINE in the U.S. It is a system that is thoroughly thought-out, that avoids the various problems that exist in countries that have various forms of socialized medicine, and it virtually guarantees that every American will get wonderful health care from cradle to grave, at a cost that is reasonable for everyone?

Should the legislator vote for this law? (Hint: This law would be totally unconstitutional)

Secondary question: If the legislator votes for this law, is s/he violating his/her oath of office?

If a legislator thinks a bill is unconstitutional, he/she should not vote for it.

Your hint aside, socialized medicine would not be unconstitutional.

 

[PratchettFan]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

No. The court resolves disputes. There has to be a case before the court for it to do anything.

 

[DGS49]

A few additional thoughts:

The example of Socialized Medicine would be unconstitutional under the Tenth Amendment. Argue this someplace else. ASSUME for the purposes of discussion that the proposed law is a hellovagood idea, but obviously unconstitutional. Should a hypothetical Congressperson vote against it simply because s/he believes it to be unconstitutional?

Also, consider that there is no provision in the Constitution that allows the USSC to simply review a new law and evaluate it w/r/t the Constitution. The USSC is limited to "cases and controversies," and may not provide a "Declaratory Judgment." The only way the Court gets to look at a new law is if there is a specific case brought before it, and unfortunately, the Court will almost never make a broad finding about the Constitutionality of a law because the Court traditionally wants to defer to the judgment of Congress. What the Court will do is either refuse to hear the case, rule on some relatively minor point.

 

[DGS49]

Consider this question as it applies to what's going on in Alabama on the "gay marriage" issue.

We have a Federal District Court judge (a Democrat WOMAN, if you please) who has GONE BEYOND what the USSC has ever said, and has found, on her own, that the equal protection clause of the 14th amendment prohibits any state from refusing to marry same-sex couples.

The Alabama Supreme Court, itself bound to protect and defend the U.S. Constitution (as interpreted by the USSC), has said that (a) there is nothing in the U.S. or state Constitution that requires the states to recognize same-sex marriages, (c) there is no CONTROLLING legal precedent otherwise, and (c) the State of Alabama rightfully has decided not to recognize them, THEREFORE, "we" will not abide by the decision of that rogue Federal District Court judge.

Are the Alabama Court members violating their oath of office (which requires them, among other things, to abide by the United States Constitution), when they refuse to go along with that Federal District Court's ruling?

I think not.

 

[natstew]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

No. The court resolves disputes. There has to be a case before the court for it to do anything.

Hey, notice I said SHOULD, that should have been required by the Constitution.
as it is we have laws passed and enforced for years and then overturned by the SC, after irreversible damage has been done.

 

[C_Clayton_Jones]

All laws are presumed to be constitutional until invalidated by the Supreme Court, see for example US v Morrison.

As long as a lawmaker votes in good faith, no oath is "violated."

 

[PratchettFan]

Consider this question as it applies to what's going on in Alabama on the "gay marriage" issue.

We have a Federal District Court judge (a Democrat WOMAN, if you please) who has GONE BEYOND what the USSC has ever said, and has found, on her own, that the equal protection clause of the 14th amendment prohibits any state from refusing to marry same-sex couples.

The Alabama Supreme Court, itself bound to protect and defend the U.S. Constitution (as interpreted by the USSC), has said that (a) there is nothing in the U.S. or state Constitution that requires the states to recognize same-sex marriages, (c) there is no CONTROLLING legal precedent otherwise, and (c) the State of Alabama rightfully has decided not to recognize them, THEREFORE, "we" will not abide by the decision of that rogue Federal District Court judge.

Are the Alabama Court members violating their oath of office (which requires them, among other things, to abide by the United States Constitution), when they refuse to go along with that Federal District Court's ruling?

I think not.

Actually, they would be violating the Constitution if they don't go along with a federal court ruling. I do wish people would read the Constitution before they start talking about. Article III, section 2.

 

[PratchettFan]

A few additional thoughts:

The example of Socialized Medicine would be unconstitutional under the Tenth Amendment. Argue this someplace else. ASSUME for the purposes of discussion that the proposed law is a hellovagood idea, but obviously unconstitutional. Should a hypothetical Congressperson vote against it simply because s/he believes it to be unconstitutional?

Also, consider that there is no provision in the Constitution that allows the USSC to simply review a new law and evaluate it w/r/t the Constitution. The USSC is limited to "cases and controversies," and may not provide a "Declaratory Judgment." The only way the Court gets to look at a new law is if there is a specific case brought before it, and unfortunately, the Court will almost never make a broad finding about the Constitutionality of a law because the Court traditionally wants to defer to the judgment of Congress. What the Court will do is either refuse to hear the case, rule on some relatively minor point.

The example is wrong, but let us assume that it isn't. A legislator should not vote for something he/she knows to be unconstitutional. One would just hope a legislator has a better understanding of the Constitution.

 

[PratchettFan]

Every law passed by both Houses and signed by the President should be reviewed and ruled on by the Supreme Court before it becomes Law.

No. The court resolves disputes. There has to be a case before the court for it to do anything.

Hey, notice I said SHOULD, that should have been required by the Constitution.
as it is we have laws passed and enforced for years and then overturned by the SC, after irreversible damage has been done.

I noticed. In that light, no it shouldn't. A court resolves disputes, it does not vet legislation. That is the job of the President.

 

[Disir]

Fifty percent of what is on the table in congress is unconstitutional. It doesn't go anywhere. Knowing that it is unconstitutional doesn't prohibit it from being introduced. It is simply to appease the constituents back home. "Well, boys, I gave it a go. But, those boys in DC..." You see this with first amendment issues incorporating some element of religion and also with most of what comes in dealing with abortion. This raises the question: should you even introduce a bill that is, on it's face, unconstitutional?

Alabama legislature knowingly, willing and consciously voted in favor of something that was unconstitutional with the Alabama Marriage Protection Act. Indeed, the Sanctity of Marriage Amendment violates the Constitution and that was ratified. Judge Enson seeks to enforce the sovereign will of the people rather than what is Constitutional. Alabama Supreme Court is not interested in what is Constitutional.

Reading through your material it is becoming apparent that it is not a question of if it is constitutional or not. It is simply a question of whether something that is constitutional agrees with what you want. To paraphrase from a prior debate: Using bad science to create a law is OK because people some people want it. That was the bigger picture.

 

[DGS49]

Why is the Alabama Marriage Protection Act unconstitutional?
Was the DOMA unconstitutional when it was passed? Is it unconstitutional now (other than the full faith & credit aspect)?

Please refer to specific constitutional wording or prevailing precedents when responding.

 

[Disir]

Pfftt. It was.

Try again.