At 76, an online exchange with my favorite high school classmate taught me that judges – excepting Supreme Court Justices – do not take an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”.
It was a bit of a shock – but also one hell of a revelation. The judicial oath of office is: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
The oath for Federal employees (and military officers) is something I’m more familiar with – “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.”
The oath for enlisted military is more extensive: “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; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” (National Guard includes allegiance to both the U.S. Constitution and the constitution of the enlistee’s state, plus obedience to the state governor.”)
In over 25 years with the Department of Agriculture, I’ve wondered why I repeated the oath as I moved from Soil Conservation Service, to Forest Service, to Montana’s Extension Service, and to South Dakota’s Extension Service. In South Dakota, Larry Tidemann agreed that there was no termination date on any of my previous oaths “but we might as well do it anyway.”
Bottom line was that it was a shock to realize that federal judges do not swear to support and defend the constitution (until they reach the Supreme Court, and then they’re justices, not judges). Judge Boasberg hasn’t sworn to support and defend the Constitution. I have – yet Boasberg is in a position to make rulings that do not support the Constitution – and lawyers are better trained to find loopholes in their oath than an aggie is.
I’ve had one spot where my oath kind of challenged me – the Enumeration Clause – Article I, Section 2, Clause 3 states that representatives and direct taxes must be apportioned according to population, determined by an “actual Enumeration” conducted every ten years in a manner directed by Congress.
My state, Montana, has a population that is somewhere on the very close order of 98% US citizens. California’s population is estimated at 26.9% who aren’t US citizens. The Constitution calls for the Census to count population, not citizens. Over a quarter of the people a California congresscritter represents aren’t American citizens. In New Jersey and New York it’s close to a quarter. In Florida, about a fifth. My personal preference would be for congressmen and women to represent citizens. The constitution says population, and congress has made no law that further narrows that to citizens. By oath, my obligation is to preserve the Enumeration clause. I took the oath freely – and Congress could vote in an interpretation that limited the apportionment of Representatives to population of citizens – but until that happens (when hell freezes over?) I support and defend the constitution. And it is kind of sad that Federal judges don’t have the same obligation (since they are selected from attorneys who are, by definition, better than I at finding different meanings).
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