Columns » Ernest Dumas

Phony oaths



The quadrennial and biennial swearing-in ceremonies, where men and women place their hands on a Bible, or a stack of them in President Trump's case, and swear allegiance to the constitutions of their nation or states, are always inspiring theater, if you can overlook the sanctimony. It's getting harder.

Repeating an oath to abide by constitutions, even when it may not be in your political interest, is a way of reassuring people that you will be true to the human values enshrined there. Hearing the oaths soar over the national mall or across a courtroom makes us all feel warm and patriotic, even if we know they are not going to do it and that down deep there are times when each of us wishes certain parts of our constitutions would go away.

Hundreds of federal officials, from the president and his Cabinet and scores of underlings to members of Congress, swore absolute fealty to the Constitution while contemplating how they were going to get around enforcing it when the president himself scoffs at provisions he loathes, like the emoluments clause and First and Fourteenth Amendment protections of the press, minorities, dissidents and the shunned.

A day after his inauguration, Trump promised to make the media pay a dear price for putting him a bad light, recalling his campaign threats to impose criminal and civil sanctions on pesky reporters, editors and owners. The courts, federal and state, said many years ago the government couldn't do that because it violated the First Amendment.

Even the arch-conservative Arkansas Supreme Court declared it constitutionally offensive in 1975 when a state criminal libel law dating back to 1838 was used to jail a Republican newspaper editor at Cave City, twice a candidate for governor, for printing a scandalously reckless rag called the Sharp Citizen. The old law made it a crime to defame a dead person or expose a live one to ridicule. The Supreme Court, which tossed the old law, said you might sue the editor for his crazy articles if he had a collectable dollar, but you couldn't shut him down or jail him. See Weston v. Arkansas or Joseph Harry Weston in the Encyclopedia of Arkansas History and Culture. Good reading.

Next month, or before, the president will nominate a justice of the Supreme Court to fill a year-long vacancy created by the Senate's refusal to do its constitutional duty to act on the nomination of a justice. Trump says his nominee will be someone in the image of the now sainted Antonin Scalia who will vote to reverse all the terrible precedents where the Supreme Court read the Constitution's speech, assembly, equal-protection, due-process and commerce clauses literally to extend the rights named there to women, African-Americans, gays, the disabled and to a black president's health-care law, rather than try to filter the words through the minds of the wealthy dead white men who had put them on paper. They obviously had not meant that blacks could speak, assemble, own guns or move around freely, because elsewhere the document recognized that they were only 60 percent human and were not entitled to freedom. Women, gays and the disabled were not quantified specifically, but the men of the 18th and 19th centuries did not mean to apply equal protection of laws, including marriage, to them.

Back in Little Rock, new appellate judges were sworn in with some fine speechmaking about their solemn reverence for the constitutions. One new justice, Shawn Womack, a former Republican state senator, announced he was going to read the constitutions through Scalia's originalist lens.

Two hundred yards away, the Arkansas Legislature, only days fresh from constitutional oaths, is getting ready to give him some instant business. It will pass and Governor Hutchinson will sign laws on abortion, voting, discrimination and who knows what else that plainly run afoul of constitutional precedents established, often unanimously, by state and federal appellate courts. They hope that a new Supreme Court will take the words of the state and federal constitutions not so literally and allow the government leeway in regulating how much a woman can control her body, the legal voters who can be barred from the voting booth and who can escape discrimination in the marketplace and government programs.

A reprise of the legislature's photo-ID voting requirement, which the state Supreme Court struck down in 2014 without a dissent, may sail through again with heavy Republican votes. Nominally, it was aimed at nonexistent voter impersonations but actually at widespread voting by blacks and the elderly, who are less likely to have government photo IDs. The bill's author said this one would be constitutional because two-thirds of both houses would vote for it.

But the failure to get two-thirds in 2013 was not the court's grounds for striking down the law, only the excuse of three justices for not even considering the restrictions because the law was phony. The state Constitution enumerates the requirements for voting and says twice that the legislature cannot add new ones. The court has struck down voting restrictions many times, starting when the government stopped an unrepentant Confederate veteran from voting.

The author of the bill, however, may be on to something. We may discover that troublesome sentences do not necessarily mean what they say if they are in a constitution.

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