Remarks from NRI’s regional seminars
The following remarks, as prepared for delivery and lightly adapted, were given by the author in Chicago on April 11, as part of National Review Institute’s Foundations of Freedom Seminars series on the Importance of America’s Constitutional Pillars.
This conference is entitled “Foundations of Freedom: The Importance of America’s Constitutional Pillars.” Foundations and pillars — interesting choice of images. Foundations and pillars are weight-bearing structures — that is what makes them such useful metaphors.
To many people, however, the Constitution is not thought of as a weight-bearing structure. To be sure, those people do regard the Constitution as an object to be revered, to be publicly worshiped. They also treat it like fine china — only for special occasions and not when the going gets tough.
I got a taste of this aesthetic recently at a forum — actually a sort of debate — that I participated in at Harvard Law School in February on the question of whether Section 3 of the 14th Amendment could be used to disqualify Donald Trump. You may recall that that’s the section that says, “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States [or as the holder of a state office] to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same.”
I took the position that if that section covered the presidency, you’d expect it to be mentioned specifically and at the top of the list that seems to mention offices in declining order of importance — senator, or representative in Congress, or elector of president and vice president — and not swept up in the category “any office, civil or military, under the United States.”
I argued also that Donald Trump had not taken an oath as an officer of the United States but rather the specific oath as president that is set forth in the Constitution, which is an oath to protect and defend the Constitution, not to support the Constitution — an oath to support the Constitution being the oath that must be violated in order to disqualify someone from serving.
I then went through various other provisions of the Constitution that were in place before the 14th Amendment was adopted where the term officer of the United States was used in a way that clearly did not include the president: the appointments clause, for example, that requires the president to commission all officers of the United States — and the president obviously does not commission himself — and then the impeachment clause, which mentions both the president specifically and civil officers of the United States, a separate category that again does not include the president, or there would have been no need to refer specifically to the president. So Donald Trump may have taken an oath as president, the specific oath prescribed by the Constitution, but he did not take an oath as an officer of the United States and so cannot be said to have violated such an oath, which is an oath to support the Constitution, the one mentioned in Section 3, not the oath to “protect and defend” the Constitution specific to the president.
Arguing the other side was Akhil Amar of the Yale Law School. He spoke first and had already seen my position outlined in a newspaper article and had already dismissed my position as “genuinely stupid.” He said that people who argued as I did were simply quibblers.
He went on about the Constitution’s several references to the president as holding office and concluded that someone who held office must be an officer; he said the question was that simple. So far as the oath, he said that the presidential oath to protect and defend the Constitution must include an oath to support the Constitution, so if Trump engaged in insurrection he must have violated the presidential oath.
Since he had cast me as a quibbler, I willingly accepted the role of quibbler and proceeded to make the arguments I’ve just sketched, based on the way the offices are listed in Section 3, which do not include the presidency, the text of the appointments clause, the impeachment clause, the difference between the presidential oath and the oath referred to in Section 3, etc.
When I got to the end of my initial presentation, the moderator, herself a professor who teaches constitutional law, said the following:
Continuing down this road with quibbling, I think some of us would probably think, this is such an issue of such constitutional moment and such an incredibly difficult moment in our country, and incredibly momentous: Is this just a lot of weight to be putting on the text, and whether certain words are missing, and isn’t it too much weight to be putting on these words?
She then asked professor Amar and me to “guide us through how we are supposed to be thinking about this level of interpretation of the text.”
Now, I don’t want to subject this professor’s words to more analysis than they will stand, and maybe she was just being provocative in order to get a discussion started, but the plain implication of those words seems to me to be that in these difficult and momentous times — constitutionally momentous times — we have more important things, more momentous things, to do than can be accomplished by mere textual analysis. And we need guides, like professor Amar and me, to tell us how we are supposed to think. This is a time for grand principles, not grammar; simply reading the text isn’t enough.
I would suggest to you — and I did to her and the others in that room — that there is no such thing as “too much weight to be putting on these words” and that these words in fact are all we’ve got; they are what make us a nation, what constitute us, which is why they call it a Constitution.
If you look at the Constitution simply as a collection of grand principles, you will notice if you listen even casually to the conversations going on in the public square that not everyone agrees on what those principles are, and you will wind up with people choosing the principles they want in order to get to the result they want. That kind of Constitution is not a foundation or a pillar; it is a mirage.
Unlike other countries, we do not have a common land to tie us together; even those of us who can trace our ancestors back to the Founding or before necessarily wind up looking across an ocean for our history. Nor do we share common blood; we are of diverse races and ethnicities and backgrounds.
There are those who assert that this diversity itself is our strength. In a way that is a noble thought, I suppose, but I think it is more noble in its aspiration than it is in reality. As a matter of common sense, how can differences that tend to drive us apart make us stronger?
What holds us together is our commitment to the Constitution that makes us not simply a collection of diverse people but a nation.
Okay, a valid thought, perhaps, but aren’t we supposed to be speaking here about the Constitution as a foundation and a pillar of our liberties? Where do the liberties come in?
Those liberties are not given by the Constitution, and even the Constitution admits as much right up front in its opening paragraph, which says that the Constitution is there to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, and secure the blessings of liberty. That’s secure, not create or establish.
Those blessings precede the Constitution, which is there to put in place the conditions — the structure, the safety and public order — that make it possible for those liberties to thrive.
If we weaken that structure — established in the carefully crafted words of the Constitution — by reading those words to bring about whatever outcome we want in difficult or momentous times, then those liberties will depend for their security entirely on what those in control of government for the moment may want.
That is exalting details, you say? I would suggest to you that the protection of our liberties will be found in scrupulous observance of such details, as set forth in our Constitution, or it won’t be found at all.
I would also submit that observing such details was what Vice President Pence was doing on January 6, 2021, when he looked at the words of the Twelfth Amendment and saw that his responsibility — and authority — ended with opening the certificates attesting to the results of the election in each state and did not extend to dealing with claims relating to the accuracy of those certificates, despite the intense pressure being brought to bear on him to do that.
Attention to those details won’t tell us how to decide public-policy issues: how to deal with our border, how we should relate to other countries in the world — name your public-policy issue. But it will assure that those decisions can be made by people who are free to decide private issues and to be heard on public issues — freer than the citizens of any nation in the history of the world.
That is what the foundation of our Constitution supports and what the pillar of our Constitution protects.