Swearing an Oath

In light of the fact that some incoming Muslim congresswomen may be sworn in on a Quran (by Mike Pence no less), it is worth remembering that the U.S. Constitution does not require an oath of office to be sworn on a Bible, or on any religious text for that matter.

Article VI, Clause 3, which covers oaths of office, states that while elected officials in both state and federal governments, as well executive and judicial officers throughout the country, are bound “by oath or affirmation” to support the Constitution, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Of course, we have already had Jewish, Hindu, Buddhist, and Muslim representatives and officials, both in Congress and throughout various other state and federal offices, swear on their respective religious texts (Fun fact: In 2007, Keith Ellison of Minnesota, the first Muslim congressperson, was sworn in on a Quran formerly owned and cherished by Thomas Jefferson.)

But many other officials, both religious and secular, have sworn on nonreligious texts, or nothing at all. John Quincy Adams and Franklin Pierce swore on a book of law; Lyndon B. Johnson was sworn in on a Roman Catholic missal; and Teddy Roosevelt, who had to take the oath in a hurry after William McKinley’s assassination, did without anything, since there was no Bible on hand.

Moreover, many Christians are forbidden by their teachings to swear on anything; both Herbert Hoover and Richard Nixon, who as Quakers could technically not swear on anything, could have “affirmed” rather than “sworn” during their oaths, though it appears they did not do so.

Globalism and American Interests

With respect to Jim Mattis’ resignation letter (transcribed here): It is noteworthy that he devotes his longest paragraph, and the first one of substance, to a “globalist” vision of America’s relationship with the world:

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9/11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Setting aside the usual idealism about America’s role as a guarantor of freedom, the pragmatism underpinning this argument is unsurprising to anyone that knows U.S. history.

Even before this country was born, its foreign policy proved pivotal to its success and survival. It was the alliance with France—the first country to recognize our independence, and the only one that could challenge Great Britain—that was most decisive in securing victory in the Revolutionary War. Nearly all the Founders recognized the importance of international trade, commerce, and recognition, which provided economic growth as well as legitimacy. Hence the Constitution places great importance on international agreements (the Treaty Clause), elevates ratified treaties to the same binding force as domestic law (the Supremacy Clause), and has language apparently obligating America to enforce the “law of nations” (the Offenses Clause).

Contrary to popular belief, the top brass has always recognized this: Far from being jingoistic, many of them are well versed in international relations and world history. Some of the most noteworthy military leaders today—Mattis himself, David Petraeus, James Stavridis—studied international affairs, foreign policy, and other internationalist “soft” sciences.

Like it or not, our highly globalized world does not permit us to disregard alliances and cooperation. The people most involved in our national security recognize that.

America and its International Commitments

One of the biggest objections to the Iran Nuclear Deal is that it violated U.S. law because it was never approved by two-thirds of the Senate, as required by the “Treaty Clause” (Art. II, Sec. 2) of the U.S. Constitution. (Contrary to the beliefs of many red-blooded Americans, the Constitution gives ratified treaties the same force as domestic law, per the Supremacy Clause.) However, this reflects a fundamental misunderstanding of the deal, the Constitution, and international law.

First, the deal was never binding: It is classified as a “nonbinding political commitment”, which, by definition, and in contrast to a treaty, requires no congressional approval nor is legally binding. Throughout U.S. history, presidents of all parties have made international agreements without the approval of a supermajority of Senators, either through “congressional-executive agreements”—which are ratified by only a simple majority of Congress—or through “executive agreements”, which are made solely by the president without any congressional involvement.

Between 1946 and 1999 alone, the U.S. completed nearly 16,000 international agreements—of which only 912 (5.7 percent) were treaties ratified by the Senate. (Most were congressional-executive agreements.)

While the Constitution does not explicitly provide for these alternatives, these alternatives have long been considered legitimate. Thomas Jefferson, a globalist sellout if we ever saw one, argued that the Treaty Clause procedure is not always necessary; short-term agreements without Senate approval may be better since “when they become too inconvenient, [they] can be dropped at the will of either party”. Most of the Founders did not objective this, because they recognized pragmatic and expedient reasons to allow the president to make international agreements without going through the long and politicized channels of the legislature.

In fact, when Jefferson sought to purchase the massive Louisiana Territory from France, there was some debate as to whether expanding U.S. territory was legal, since the Constitution was silent on the matter. He ultimately prevailed on the argument—backed by the “Father of the Constitution” James Madison—that the executive’s broad foreign policy powers allowed him to acquire the territory through treaty; he subsequently signed an agreement with France in April, announced it publicly in July, and finally got it ratified by the Senate in October.

The Supreme Court has repeatedly affirmed these powers. In Missouri v. Holland, it held that the federal government can use treaties to legislate in areas that would otherwise fall within the exclusive authority of the states. That is because the Supremacy Clause of the Constitution gives treaties the same force as federal law, which is binding on the states. In American Insurance Association v. Garamendi, the Court reaffirmed that “the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”

Most Americans Know Next to Nothing About the Constitution

For a document that is practically deified as the greatest legal instrument in the world, the U.S. Constitution is woefully misunderstood, or not understood at all. Those are the depressing results of a 2017 poll from the University of Pennsylvania’s Annenberg Public Policy Center. (Though the data are one year old, I doubt the results have changed, except maybe for the worse.)

More than one in three people (37%) could not name a single right protected by the First Amendment. Only one in four (26%) can name all three branches of the government (down from 38% in 2011), and one in three (33%) cannot name any branch of government. A majority (53%) believe that undocumented immigrants have no rights under the Constitution, despite the Supreme Court ruling repeatedly that everyone in the U.S. is entitled to due process and the right to make their case before the courts.

As Chris Cillizza over at CNN points out, these dismal results aren’t limited to just one poll:

Take this Pew Research Center poll from 2010 When asked to name the chief justice of the Supreme Court, less than three in 10 (28%) correctly answered John Roberts. That compares unfavorably to the 43% who rightly named William Rehnquist as the chief justice in a Pew poll back in 1986.

What did the 72% of people who didn’t name Roberts as the chief justice in 2010 say instead, you ask? A majority (53%) said they didn’t know. Eight percent guessed Thurgood Marshall, who was never a chief justice of the Court and, perhaps more importantly, had been dead for 17 years when the poll was taken. Another 4% named Harry Reid, who is not now nor ever was a Supreme Court Justice.What we don’t know about the government — executive, legislative and judicial branches — is appalling.

It’s funny — until you realize that lots and lots of people whose lives are directly affected by what the federal government does and doesn’t do have absolutely no idea about even the most basic principles of how this all works. The level of civil ignorance in the country allows our politicians — and Donald Trump is the shining example of this — to make lowest common denominator appeals about what they will do (or won’t do) in office. It also leads to huge amounts of discontent from the public when they realize that no politician can make good on the various and sundry promises they make on the campaign trail.

While I think more and better civics curricula is a solution, I also suspect that the visceral hatred of all things government dissuades people from caring about these things in the first place. At the same time, I can also see how (often understandable) cynicism towards our political system might breed apathy, too. Why bother to know about a system that you are convinced does nothing good for you or society?

The Founders: The World Matters

Americans who dismiss or even resent the notion that we should look abroad for new ideas should know that the Founders they revere would have heavily disagreed — which makes sense given they were inspired by the European Enlightenment and Greco-Roman ideas and institutions.

James Madison, the “Father of the Constitution”, believed that “no nation was so enlightened that it could ignore the impartial judgments of other nations and still expect to govern itself wisely and effectively.”

In Federalist 63 he articulated the importance of respecting global public opinion, noting that “sensibility to the opinion of the world [was] perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.” In other words, America’s standing in the world matters, and in turn depends on how open we are to foreign ideas and judgments.

Madison also laid out two reasons why every government should pay attention to the international community:

The one is, that independently of the merits of any particular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy.

Thus, no matter how good or justified a domestic policy may seem, we should also ensure that other nations agree as well. It lends support and credibility while also giving us legitimacy.

The second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed.

Translation: sometimes Americans get it wrong, and the world can offer guidance we may be lacking.

Madison then went so far as to claim that America has suffered for not taking the world into account:

What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiassed part of mankind?”

As Goloveand and Hulesbosch point out in their law review article, A Civilized Nation, Madison’s point is clear:

“Even apart from the danger of provoking war or acting unjustly, paying respect to the consensus judgments embodied in the law of nations was an essential strategy for avoiding ‘errors and follies’ and for managing a foreign policy that would enable the nation to flourish”.

John Jay and Alexander Hamilton concurred, as did most of the Framers:

Madison’s views were shared by many of the framers, and consequently, they carefully designed the new Constitution to ensure that the new nation would uphold its duties under the law of nations. The most immediate concern, based on bitter experience, was to ensure that localist pressures at the state level would not undermine the nation’s capacity to comply. To accomplish this result, the Constitution centralized the foreign affairs powers in the hands of the federal government. As Madison put it,“[i]f we are to be one nation in any respect, it clearly ought to be in respect to other nations.”

Again, however, the framers’ concerns were not limited to federal-state relations. They also worried that popular sentiment,whipped up by “the artful misrepresentations of interested men,” would threaten to undermine compliance with the nation’s international duties. The people, John Jay lamented, were “liable to be deceived by those brilliant appearances of genius and patriotism, which like transient meteors sometimes mislead as well as dazzle.”Consequently, their representative assemblies would be prone “to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders, into intemperate and pernicious resolutions.” Indeed, it was precisely this sort of defect in democratic systems that had led to disastrous results during the Confederation. “[T]he best instruction on this subject is unhappily conveyed to America by the example of her own situation,” Madison observed. “She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.”

Hence the Constitution gives treaties and international agreements the same strength as domestic law (see the Treaty and Supremacy clauses) and insulates foreign policy from local and state politicians who are too unscrupulous or far removed from international affairs (hence the requirement that only the Senate must ratify a treaty, and Jefferson’s interpretation that many international agreements can be made by the president alone).

It is safe to say that the Founders would be marked as elitist globalists by the very Americans who deify them.