Popular sovereignty and the oath theory

In October 2021, Judge William Pryor of the Eleventh Circuit (not the Fifth) gave a speech to the Heritage Foundation. Judge Pryor is a prominent conservative judge, and he is perpetually on the list of candidates for elevation to the Supreme Court in a Republican administration. His speech, “Politics and the Rule of Law,” is a long argument in favor of originalism. In this speech, in an attempt at Scaliaesque wit, he inveighed against “Living Common Goodism.” Among his assertions was that the oath imposed by Article VI of the Constitution—the oath to “support this Constitution”—creates a binding moral duty in favor of originalism.

Professors Evan Bernick and Christopher Green have conducted a lengthy analysis of the object of the constitutional oath, arguing that, while there might be exceptions, the oath prescribed by Article VI of the Constitution requires originalism in some way. Professor Joel Alicea, author of a recent essay attempting to find another basis to make originalism morally obligatory, recognizes that even Bernick and Green’s argument requires moral evaluation of the Constitution. However, others have found Professors Bernick and Green’s claims about the oath to be just the ticket, including John Ehrett and C’zar Bernstein. (Judge Pryor’s talk cited Bernstein in particular on this point.)

There is, I think, a very understandable desire on the part of originalists to find some binding moral basis for their jurisprudential preferences. The oath seems to be, for some, including Judge Pryor, a mechanism to moralize a certain interpretation of the Constitution. Most stop here, apparently revolting from the consequences of this when applied to judges and federal officers. But for rhetorical-forensic purposes, simply asserting that originalism is a moral duty is sufficient. But to move into a more obvious moral dimension (I would not suggest that law and morality are ever actually distinct) means just that: moving into a moral dimension. And there are of course consequences to this.

For Catholics—and those interested in an Aristotelian-Thomistic moral philosophy—the oath is well understood. Indeed, going back to St. Ambrose and St. Jerome, one can find nuanced understandings of oaths and their consequences. One important theme is that superiors can commute or dispense oaths sworn by their inferiors. This has always included the pope (or the delegates of the pope exercising his power). But the pope is not the only person, in my view, who can commute or dispense an oath. I believe that, on Aquinas’s account of popular sovereignty, the people, legislating through custom, can commute or dispense an oath.

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In the discussions of the Article VI requirement of an “Oath or Affirmation” to support “this Constitution,” the emphasis is often on “this Constitution.” There is not as much emphasis on “Oath or Affirmation.” Professors Bernick and Green recognize that there are situations in which oath-breaking might be not only justifiable but even necessary. But on the whole, the proponents of an originalism required by the oath want to talk about language and the nature of the Constitution. It is assumed, particularly by popularizers like Ehrett and Bernstein, that that oath is generally morally binding except in emergency circumstances. This is enough for their purposes: originalism is morally obligatory because oaths are morally binding.

I want to be clear that I do not share this view, nor do I think a Catholic can safely hold it. Some of the proponents of the view express clearly that they believe that an oath required by Article VI could conceivably bind someone to immoral acts. For example, C’zar Bernstein, writing in National Review, suggests that judges are bound by the Article VI oath to “support and faithfully interpret a written instrument that may or may not conform with the moral law or any particular conception of the ‘common good.’” The problems for a Catholic with this view are too numerous to discuss. (A brief review of the propositions concerning civil society and ethics more generally infallibly condemned by Bl. Pius IX in Quanta cura and Syllabus would highlight at least some of them.) Nevertheless, I will assume for our present purposes that the Article VI oath is not a moral suicide pact, and that the content of the Constitution is at least arguably conformable to the eternal and natural law. Moreover, I will assume that a Catholic can safely hold the oath theory.

It is certainly true that an oath is not binding in emergency circumstances—that is to say, when an oath would require an unjust result in given circumstances—but are there other circumstances when an oath might not bind? The answer Thomas Aquinas gives in the course of his detailed examination of both oaths and vows is yes. Certainly an oath to do something evil must not be sworn or carried out. But that is not every oath. Some oaths might be contrary to greater goods, and Aquinas tells us that we should not swear them, though we may or may not carry them out. A doubtful oath may be dispensed by one in authority, preeminently the bishop.

But there is a fourth category of oath identified by Aquinas: the oath that is manifestly lawful and useful. This oath, Aquinas tells us, does not admit of a dispensation, but a commutation. Aquinas analogizes it to a change in the law: circumstances may transpire that mean something better for the common good might be done. In these circumstances, an oath may be commuted to do that something better. The Pope, having in Aquinas’s account supreme jurisdiction in the Church (and, at least when he wrote his commentary on the Sentences of Peter Lombard, everywhere else), has the authority to commute oaths. But, Aquinas adds, so too does anyone who has authority over someone else.

And here we reach an interesting point, which I discussed previously. As Professor Alicea has demonstrated—incompletely, in my view—there is a theory of popular sovereignty in Aquinas. The Constitution, according to Professor Alicea and indeed Professors Bernick and Green, is the means by which the People of the United States transfer, under certain conditions, to various public persons their sovereignty, just as the Lex Regia was how the Roman people transferred to various public persons their sovereignty. But according to Aquinas, as I demonstrated a little while ago, the people retain a couple of important rights: the right to withdraw from a tyrant their transfer of power and the right to legislate through custom.

The People of the United States have authority over the public persons to whom they have transferred their sovereignty, retaining (crudely) the right to revolt and the right to legislate through custom. On Aquinas’s account, the people, as the superiors of all the Executive Branch officials and federal judges, have the retained jurisdiction to legislate through custom in such a manner as to dispense or commute the oaths of federal officers. This is, I believe, a significant problem for the oath theory on a Thomistic account.

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An oath is fundamentally an invocation of God to witness a statement (ST II-II q.89 a.1 co.). If it is a statement about past or present events, it is a declaratory oath (ibid.). If it is a statement about future events, it is a promissory oath (ibid.). There are limits to what one can swear about in Aquinas’s account. One swears to confirm contingent facts regarding man, and one invokes God, Who sees all and knows all, as a witness because man lies, forgets, and does not have access to distant places (ibid.). There is no need, therefore, to swear regarding speculative propositions, which receive natural and infallible confirmation by reason, and matters subject to scientific investigation (ibid.).

Aquinas tells us that an oath is fundamentally an act of faith—indeed, of religion—insofar as calling God to witness something is an implicit testimony to His omniscience (ST II-II q.89 a.2 co.; II-II q.89 a.4). But the Gospels, St. Paul, and the Fathers warn against swearing frivolous or wicked oaths (ST II-II q.89 a.2 co. & ad 1). An oath therefore must have three components to be lawful: truth, judgment, and justice (e.g., St. Jerome, In Jeremiam Prophetam lib. I, c. IV, PL 24, 706). Aquinas expounds upon these components: “Iudicio autem caret iuramentum incautum; veritate autem iuramentum mendax; iustitia autem iuramentum iniquum sive illicitum.”—“A rash oath lacks judgment, a false oath lacks truth, and a wicked or unlawful oath lacks justice” (ST II-II q.89 a.3 co.).

A declaratory oath—a statement about the past or present—has to be true. But the Article VI oath is manifestly a promissory oath: the officers “shall be bound by Oath or Affirmation, to support this Constitution” (U.S. Const. art. VI, cl. 3). Luckily, Aquinas explains when promissory oaths are binding, too: “in iuramento quod praestatur de his quae sunt fienda a nobis, obligatio cadit e converso super rem quam aliquis iuramento firmavit. Tenetur enim aliquis ut faciat verum esse id quod iuravit, alioquin deest veritas iuramento”—“in the oath that is made about something to be done by us, the obligation falls on the thing guaranteed by oath. For a man is bound to make true what he has sworn, else his oath lacks truth” (ST II-II q.89 a.7 co.).

But remember truth is only one of the three requirements for a lawful oath: it still must have judgment and justice (ST II-II q.89 a.3 co.). These remain the conditions for a valid oath under the 1983 Code of Canon Law (c. 1199 § 1). Aquinas explains first “Si autem est talis res quae in eius potestate non fuit, deest iuramento discretionis iudicium”—“if this thing be such as not to be in his power, his oath is lacking in judgment of discretion” (ST II-II q.89 a.7 co.). We turn then to judgment: “Si vero sit quidem possibile fieri, sed fieri non debeat, vel quia est per se malum, vel quia est boni impeditivum, tunc iuramento deest iustitia”—“If, on the other hand, it be something that he can do, but ought not to, either because it is essentially evil, or because it is a hindrance to a good, then his oath is lacking in justice” (ibid.). Here, Aquinas is emphatic. An oath that is essentially evil or a hindrance to justice must not be kept (ibid.).

There are a couple of ways that an oath can produce an evil result. First, the oath can be for something intrinsically wicked or something that hinders a greater good (ST II-II q.89 a.7 ad 2). Oaths for intrinsically wicked things are always immoral, both in the swearing and in the doing: “Huiusmodi enim iuramentum a principio est illicitum, differenter tamen. Quia si quis iuret se facturum aliquod peccatum, et peccat iurando, et peccat iuramentum servando”—“For oaths of this kind are unlawful from the outset: yet with a difference: because if a man swear to commit a sin, he sinned in swearing, and sins in keeping his oath” (ibid.). Oaths that hinder a greater good are immoral in the swearing but not the doing (ibid.).

The other way is fundamentally more interesting and perhaps more relevant: “Alio modo vergit in deteriorem exitum propter aliquid quod de novo emerserat, quod fuit impraemeditatum”—“Secondly, an oath leads to an evil result through some new and unforeseen emergency” (ST II-II q.89 a.7 ad 2). Aquinas here cites the example of King Herod. When he promised Salome to give her anything she wanted for her dancing, that was not in and of itself a wicked oath, provided that Salome asked for something Herod could lawfully give her. But when she asked for the head of St. John Baptist and Herod felt constrained to give it to her, that was certainly evil (ST II-II q.89 a.7 ad 2). Here he follows St. Ambrose—who cites not only the case of Herod but also of Jephthah (De officiis lib. I, c.50, no. 255).

A lawful oath that remains lawful—that is, a promise that still has truth, judgment, and justice—has to be followed, right? Maybe. In Aquinas’s treatment of vows, we learn about the concept of dispensation (ST II-II q.88 a.10). In the Treatise on Law, Aquinas explains how laws may be dispensed from (ST I-II q.96 a.6; I-II q.97 a.4). And the reason for dispensations from the law is pretty clear on Aquinas’s account: “lex ponitur respiciendo ad id quod est ut in pluribus bonum, sed quia contingit huiusmodi in aliquo casu non esse bonum, oportuit per aliquem determinari in illo particulari casu legem non esse servandam”—“a law is made with an eye to that which is good in the majority of instances. But since, in certain cases this is not good, there is need for someone to decide that in that particular case the law is not to be observed” (ST II-II q.88 a.10 co.). A person who makes a vow—that is a promise to God to do something (ST II-II q.88 a.1 co.)—becomes a law unto himself (ST II-II q.88 a.10 co.). In most cases, the matter of the vow is good, but in some cases it is evil, useless, or impedes a greater good; therefore, the Church has the power to dispense (or commute) a vow (ibid.).

As with vows, so with oaths: “Quod autem aliquid sit inhonestum vel noxium, repugnat his quae debent attendi in iuramento, nam si sit inhonestum, repugnat iustitiae; si sit noxium, repugnat iudicio. Et ideo, pari ratione, etiam in iuramento dispensari potest”—“Now anything morally evil or hurtful is incompatible with the matter of an oath: for if it be morally evil it is opposed to justice, and if it be hurtful it is contrary to judgment. Therefore an oath likewise admits of dispensation” (ST II-II q.89 a.9 co.).

Dispensations necessarily apply only to promissory oaths (ST II-II q.89 a.9 ad 1). The reason for this is clear: “Sed ad hoc se extendit dispensatio iuramenti ut id quod sub iuramento cadebat, sub iuramento non cadat, quasi non existens debita materia iuramenti, sicut et de voto supra diximus”—a dispensation “implies that what hitherto came under an oath no longer comes under it, as not being due matter for an oath” (ibid.). A declaratory oath covers something past or present, which is to say something that has “a certain necessity,” and therefore a dispensation would cover not merely the matter of the oath but also the act (ibid.). A promissory oath, on the other hand, covers something about the future, which can change (ibid.). A dispensation therefore covers the matter, not the act.

Aquinas considers three conditions for a dispensation (ST II-II q.89 a.9 ad 3). First, when an oath is manifestly contrary to justice; second, when it impedes a greater good; and third, when the matter is doubtfully right or wrong (ibid.). In the first case, such as when a man swears to commit murder, he must not carry out the oath (ibid.). In the second case, while it is immoral to swear an oath impeding a greater good (ST II-II q.89 a.7 ad 2), the man who swears it can carry it out or not (ST II-II q.89 a.9 co.). In the case of a doubtful oath, the authority of a prelate—that is, a bishop—is necessary (ibid.).

Aquinas considers a fourth case: “quandoque vero sub iuramento promittitur aliquid quod est manifeste licitum et utile”—“Sometimes, however, that which is promised under oath is manifestly lawful and beneficial” (ibid.). Here he distinguishes between a dispensation and a commutation. “Et in tali iuramento non videtur habere locum dispensatio, sed commutatio, si aliquid melius faciendum occurrat ad communem utilitatem”—“An oath of this kind seemingly admits not of dispensation but of commutation, when there occurs something better to be done for the common good” (ibid.). Aquinas makes two points following this. First, the power to commute an oath belongs preeminently to the pope, having the chief authority in the Church (see also In II Sent d.44 q.2 a.3 exp. text.). Second, “sicut et ad unumquemque pertinet irritare iuramentum quod a sibi subditis factum est circa ea quae eius potestati subduntur”—“Thus it is competent to any man to cancel an oath made by one of his subjects in matters that come under his authority” (ST II-II q.89 a.9 ad 3).

Here, the analogy to law is pretty clear. Aquinas, discussing the change of human laws, tells us: “Ex parte vero hominum, quorum actus lege regulantur, lex recte mutari potest propter mutationem conditionum hominum, quibus secundum diversas eorum conditiones diversa expediunt”—“On the part of man, whose acts are regulated by law, the law can be rightly changed on account of the changed condition of man, to whom different things are expedient according to the difference of his condition” (ST I-II q.97 a.1 co.). An oath might once been manifeste licitum et utile just like a law might have served the common good. But something that serves the common good better might come along.

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The trivial case for a dispensation or commutation is that the pope (or someone on whom the pope has conferred his own authority) dispenses or commutes it. Remember that the Church holds that all validly baptized Christians are part of the Church (c. 204). Historically the Church has claimed jurisdiction over all validly baptized Christians, though in recent years the Church has not emphasized that claim. The pope, as head of the Church, has preeminent power to dispense or commute an oath.

Under the 1983 Code of Canon Law, the pope has conferred this power in many cases to bishops and pastors (cc. 1203; 1196, 1º). As a rule, the power of prelates and pastors is limited to cases where no one is prejudiced by the commutation or dispensation. But even in such cases, the pope retains jurisdiction to commute or dispense the vow or oath. But the Code identifies, particularly with respect to oaths, situations in which by the law itself the oath is not binding (cc. 1201 § 2; 1202, 2º).

And Professor Green, writing at his blog, has characterized this as a “bad conception” of fidelity, pointing toward St. Pius V’s bull, Regnans in excelsis, which, among other things, dispensed Elizabeth Tudor’s subjects from any oaths they had sworn to her. This was not the only dispensation in the context of the English schism (and later heresy). Paul III, when he excommunicated Henry Tudor in the bull, Eius qui, dispensed the oaths of Christian princes to assist Henry (Mag. Bull. Rom. lib. I, sec. 15, pp. 706–07). But it is impossible to see that this is a “bad conception” of fidelity for a Catholic. It is simply the conception of fidelity on the Catholic account: the pope—to this very second—claims the power to dispense oaths, which he has conferred in some cases on bishops and pastors. One might say that this means that Catholics cannot hold the oath theory, and I fully agree: no Catholic can safely hold the oath theory. But I said at the outset that I would make assumptions in favor of the theory, including the assumption that it is not erroneous

But is the pope the only person who can commute or dispense from an oath? Recall that “ad unumquemque pertinet irritare iuramentum quod a sibi subditis factum est circa ea quae eius potestati subduntur”—“it is competent to any man to cancel an oath made by one of his subjects in matters that come under his authority” (ST II-II q.89 a.9 ad 3).

Aquinas articulates a theory of popular sovereignty (cf. ST I-II q.90 a.3). Siding with Azo and the minority opinion in a debate about the Lex Regia and the retained sovereignty of the Roman people, Aquinas holds more or less that the people, having entrusted the care of the commonwealth to a public person, retain some jurisdiction. First, they can throw off the rule of that public person if he becomes tyrannical: “Primo quidem, si ad ius multitudinis alicuius pertineat sibi providere de rege, non iniuste ab eadem rex institutus potest destitui vel refrenari eius potestas, si potestate regia tyrannice abutatur”—“If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power” (De regno lib. 1 c.7).

Second, the people retain the authority to legislate through custom: “Si enim sit libera multitudo, quae possit sibi legem facere, plus est consensus totius multitudinis ad aliquid observandum, quem consuetudo manifestat, quam auctoritas principis, qui non habet potestatem condendi legem, nisi inquantum gerit personam multitudinis. Unde licet singulae personae non possint condere legem, tamen totus populus legem condere potest”—“For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, than does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can” (ST I-II q.97 a.3 ad 3).

The people, therefore, retain a right to revolt against a tyrant and the right to legislate through custom. Other than that, the public persons to whom they have transferred their sovereignty exercise the public authority: “Ordinare autem aliquid in bonum commune est vel totius multitudinis, vel alicuius gerentis vicem totius multitudinis. Et ideo condere legem vel pertinet ad totam multitudinem, vel pertinet ad personam publicam quae totius multitudinis curam habet”—“Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people” (ST I-II q.90 a.3 co.). And the reason is clear: you need coercive power to enforce the laws, and only the whole people or their chosen delegate has coercive power (ST I-II q.90 a.3 ad 2).

More than this, the delegate of the people has the power to dispense from the law: “ille qui habet regere multitudinem, habet potestatem dispensandi in lege humana quae suae auctoritati innititur, ut scilicet in personis vel casibus in quibus lex deficit, licentiam tribuat ut praeceptum legis non servetur”—“he who is placed over a community is empowered to dispense in a human law that rests upon his authority, so that, when the law fails in its application to persons or circumstances, he may allow the precept of the law not to be observed” (ST I-II q.97 a.4 co.). And Aquinas later explains reinforces this point (ST II-II q.89 a.9 co. & ad 3). But this is simply because the public person has the care of the whole community and is responsible for ordering the community to the common good. (ST I-II q.90 a.3 co.). Remember, though: the public authority has authority to order the commonwealth to the common good only as vice gerens of the totus multitudinis (ibid.). And that authority is subject to some important limitations, as we have seen, including the power to legislate (and nullify and interpret law) through custom (ST I-II q.97 a.3 ad 3).

Remember, too: as the law goes, so go oaths (ST II-II q.89 a.9 co.). The whole people, therefore, has the authority to commute or dispense oaths. But this must be squared with the two retained powers that the people have: the power to revolt and the power to legislate through custom. Revolution does not seem too compatible with oaths. Certainly a revolt would nullify the oath simply because the matter of the oath would have changed (ST II-II q.89 a.9 ad 1). The matter of the oath “I promise to apply the Constitution a certain way” changes when the people revoke the Constitution through a revolution.

But what about legislation through custom—that is, when the whole people through their actions legislate a certain way? Aquinas tells us: “Sicut autem ratio et voluntas hominis manifestantur verbo in rebus agendis, ita etiam manifestantur facto, hoc enim unusquisque eligere videtur ut bonum, quod opere implet”—“Now just as human reason and will, in practical matters, may be made manifest by speech, so may they be made known by deeds: since seemingly a man chooses as good that which he carries into execution” (ST I-II q.97 a.3 co.). Human speech can change the law because it expresses the judgment of reason, and because deeds can do the same thing, deeds can change the law per exteriores actus multiplicatos (ibid.).

This option seems entirely compatible with oaths. Just as the pope and the public person entrusted with the leadership of the commonwealth can dispense oaths through speech (or writing), the pope and the public person entrusted with the leadership of the commonwealth can dispense oaths through repeated exterior acts that declare their reason or will (ibid.). The whole people can dispense oaths, pursuant to what I might call its reserved jurisdiction, with respect to subordinates of the whole people (cf. ST I-II q.97 a.3 ad 3; II-II q.89 a.9 ad 3). How do they express this? Through custom (ST I-II q.97 a.3 co.).

What does this look like? Custom is nothing more than repeated acts expressing reason and will. (ST I-II q.97 a.3 co.). Acquiescence in a practice over a lengthy period is custom of a kind, just as behavior in a certain way over a similar period is custom. If the people permit a certain practice by their representatives or judges over a lengthy period, this would become a law—or interpret or abolish law—on Aquinas’s account of custom. Nothing in this process seems to exclude the acts that a sovereign may take regarding the oaths of his subordinates. And when the people tolerate again and again certain acts by its subordinates—let us say what we mean: when the people tolerate non-originalist decisions or actions by government employees in the various branches of government—it may be said that the people have commuted or dispensed the oath of their subordinates to “this Constitution.”

In my view, this account of popular sovereignty poses a significant problem for the oath theory. The people give most of their authority to the government through a document like the Constitution, but not all. And they retain the authority to legislate corporately through custom. This means that, even if the oath theory were correct and morally safe, the people can still dispense or commute the oath. The power to dispense or commute the oath throws the whole theory, in my view, into turmoil. The oath theory only works if “this Constitution” means the original public meaning of a given Constitutional provision. If the people can change that through custom, then the edifice falls apart.

If one wants to hold—against Azo and Aquinas—that the people have transferred all their authority to the government, retaining none for themselves, not even revolution or custom, then the oath theory may well be plausible given the assumptions I have made here. (Objectively, it is not plausible on the moral grounds I mentioned above, insofar as it purports to deny perennial teachings of the Church.) One may even reject the idea that the Constitution implicates popular sovereignty at all. But that argument would need to be worked out in some detail, not least since I think Professor Alicea is correct when he connects fundamentally the idea of popular sovereignty and the Constitution.

One could also reject custom as a means of making, interpreting, or abolish law. But here we depart so thoroughly from the Thomistic concept of law—indeed, from the entire understanding of law in the classical tradition—that one is forced to accept such a rejection as a parting of the ways more than a response. The differences are simply too large to be overcome and it must be acknowledged, cheerfully and charitably, that there is nothing really to be said.

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