Does the oath of office bind constitutional interpretation? | Opinion

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A recent obscure constitutional law debate has now burst out into the mainstream.

A minor kerfuffle recently erupted in the world of academic constitutional theory over whether two ideas might be connected. The first is originalism: the idea that interpretation should recover the meaning expressed by the Constitution's text in its original context. The second is the Constitution's Article VI oath, which binds current officeholders to"this Constitution."

But errors about the nature of the Constitution are not trivial. The oath is not a potted plant. It was written to have real bite in how officeholders go about their business: to tie them down to a particular Constitution—"this" one. Step one is about how people talk about our Constitution today. Officeholders claim, with some regularity, that they swear the same oath, to the same Constitution, that George Washington once did. They likewise say regularly that America has the oldest written national constitution in the world .

Step one thus denies that the Constitution has become alive since the Founding. But was it alive even then?

 

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