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August 4, 2016 by Joseph J. DePalmaDownload PDF

The Attorney Oath of Office and Our Presidential ElectionJoseph J. DePalma

Our firm’s blogs have never addressed political issues, by choice. Our firm comprises attorneys of different races, faiths and political persuasions. We are all respectful of each other’s divergent views. Rather than blogging about one political view or another, we have devoted our writings instead to legal issues of the day. But, just as Michael Corleone replied to his wife Kay’s question regarding the family business, when the new Godfather answered by saying, “this one time,” here goes: A political blog, just this once.

Every one of us, upon being sworn to the bar as attorneys of the State of New Jersey and of the Federal Court, pledged an oath to support the Constitution of the United States. In this election year, with the Republican candidate seemingly unaware of, and disrespectful to, basic precepts of the Constitution, I pondered the meaning of our oath. What are we, singularly as attorneys, to do if—despite our individual political leanings—we feel certain that a candidate elected to our highest office would inflict great harm to the rights afforded us in the Constitution?

The Supreme Court has upheld the constitutionality of oaths such as ours. As Chief Justice Burger wrote for the Court in Cole v. Richardson, 405 U.S. 676, 681 (1972):

Several cases recently decided by the Court stand out among our oath cases because they have upheld the constitutionality of oaths, addressed to the future, promising constitutional support in broad terms. These cases have begun with a recognition that the Constitution itself prescribes comparable oaths in two articles. Article II, § 1, cl. 8, provides that the President shall swear that he will “faithfully execute the Office . . . and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Article VI, cl. 3, provides that all state and federal officers shall be bound by an oath “to support this Constitution.” The oath taken by attorneys as a condition of admission to the Bar of this Court identically provides in part “that I will support the Constitution of the United States”; it also requires the attorney to state that he will “conduct [himself] uprightly, and according to law.”
These cases focus on whether a particular oath constrains the rights of the oath taker. For example, in Cole, the Appellee Richardson had been hired to work at a state hospital but was discharged after refusing to take an oath requiring public employees to subscribe to the Massachusetts statutory oath to uphold and defend the federal and state constitutions. Similarly, in Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971), the Court addressed a challenge to New York’s right to inquire whether a bar applicant was loyal to the Constitution given his prior affiliation with an organization advocating the overthrow of the government.

These cases do not address the converse inquiry. In support of the Constitution, does the attorney oath require us to take affirmative acts to prevent another from destroying its fabric? The answer is that there is no affirmative duty. As noted in Wadmond,

[We recognize] that the purpose leading legislatures to enact such oaths, just as the purpose leading the Framers of our Constitution to include the two explicit constitutional oaths, was not to create specific responsibilities but to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our system, as MR. JUSTICE MARSHALL suggested in Wadmond, 401 U.S., at 192. (Emphasis added.)
Although we are not bound by affirmative act to support the Constitution against another’s conduct, as an attorney I am compelled to use the chief tool we learned, the craft of words, to speak out. We must examine our conscience. Should we stand idly by as a profession where the Republican candidate for office often and consistently speaks in authoritarian terms, whose conduct has outraged even fellow Republicans (I am one), and who is viewed by leading members of both parties as unfit for office? I hope not.