Selective Oaths of Office: Very, Very Dangerous

If you care about the rule of law, it’s hard not to be deeply troubled by the recent development in Wisconsin noted by Maureen Martin in a Saturday subscription-only Wall Street Journal op-ed — no matter where you stand on the issue involved:

Cafeteria Constitutionalism
February 24, 2007

GREEN LAKE, Wis. — For the past few years, some judges in Wisconsin have been rewriting state law from the bench. Now it’s possible that they soon may go even further by rewriting the Wisconsin constitution.

Wisconsin’s capital, Madison, is already doing exactly that. Appointees to Madison’s boards and commissions must take an oath of office to uphold the U.S. and Wisconsin constitutions. But last month the city council approved a measure allowing them to refuse to swear to uphold a state constitutional amendment banning gay marriage if they disagree with it. And where Madison leads, the Wisconsin Supreme Court is usually not far behind.

There’s a pretty simple thing that needs to be understood about an oath of office that Madison’s city fathers clearly don’t get. An oath is not a ceremonial nicety; it is a prerequisite for taking office.

If you don’t agree with the contents of the oath you are taking in their entirety, you simply cannot be allowed to take the position. It doesn’t matter whether you have just run for elective office and won. It doesn’t matter if you have been nominated and confirmed for political, administrative, or judicial office. If you don’t swear to comply by the terms of the oath, you go home. Permitting such a person to take or hold office is a prelude to chaos.

After-the-fact “yeah, buts” are no different. Madison Council members who won’t uphold the oaths they took to become members in their entirety should no longer be members — End, Of, Discussion. They are of course free to devote their hearts, souls, and minds to CHANGING the constitutions they have sworn to uphold, but unless and until they are changed, they must do what they have previously sworn they will do — uphold the constitutions as they are currently written.

What if officeholders in the Deep South in the 1950s and 1960s had adopted a similar tactic, swearing to uphold the Constitution except for, say, the 14th Amendment, or the Civil Rights Act of 1964? The reaction from the rest of the country would of course have been properly swift and furious. The fact that the selective carve-out being attempted by Madison’s city council relates to a more politically-correct cause doesn’t make the tactic any less outrageous.