‘The Oath and the Office: A Guide to the Constitution for Future Presidents’ Corey Brettschneider W.W. Norton & Co. 274 pages, $22.95
When you pick up a book, you may wonder what inspired the writer to write about his subject. When you pick up Corey Brettschneider’s latest offering, though, his subtitle “A Guide to the Constitution for Future Presidents” likely answers your question. Given the front page headlines of every single day since our president hit the campaign trail, one doesn’t have to interview Prof. Brettschneider, a professor of Constitutional Law at both Brown University and Fordham Law School, to know everything there is to know about it: that it is critical for an elected president to know with precision the obligations and, more important here, the limitations on what he can and should do consistent with the oath of office he has taken, that is, to “preserve, protect and defend the Constitution …” It is unlikely that President Trump has read this book—although he certainly should. Let’s hope he does, but importantly, let’s hope the populace—lawyers and non-lawyers alike and whether Trump supporters or not—reads this book to better understand our Constitutional rights so that they are not eroded.
In this extremely timely book, Prof. Brettschneider reminds us that, in order for our government to work as it was meant to, each branch—Executive, Legislative and Judicial—must work with the other. Checks and balances are built in to our system of government so that no one person or group can act alone. “The [presidential] oath requires that the president uphold the Constitution—even parts which he or she disagrees with.” Such is the contract a president makes with the American people. Alexander Hamilton expressed his concern that a president might actually undermine the values of the Constitution in order to win popular support; the Framers attempted to guard against such action. Thus, James Madison argued, even if a president were to become a tyrant catering to the worst prejudices of the populace, people cannot be stripped of those Constitutionally-mandated rights. An important reminder.
To be sure, a president—don’t we know it—can overstep his authority. He can issue executive orders which exceed what he is permitted to do; he can ignore the Constitutional limitations on his authority. He can also act technically legally, yet obstruct the very tenets of our system at the same time. Perhaps nothing, in history, demonstrated that better than Richard Nixon’s “Saturday Night Massacre”—he got rid of the problem (an investigation into the Watergate break-in) by firing the special prosecutor, after first firing the Attorney General who refused to fire the special prosecutor. No—the Constitution is not perfect. And Brettschneider readily acknowledges that. But he also argues that taking the oath of office means one should not subvert the core values of the rule of law. In other words, the presidency is not always just about upholding the technical words of the Constitution, but also about upholding the ideals the United States was built on.
If one were to read Brettschneider’s prior writings, there can be no question that he is talking about our current president. Yet, he skillfully writes this book fairly and evenly, and it is not until we turn to the acknowledgement at the book’s end that we understand his true inspiration: “… I was unprepared for anything like the 2016 presidential campaign. Suddenly, proposals to violate the Constitution that had been the stuff of far-fetched classroom hypotheticals became just another part of the agenda for a presidential candidate who would soon win the election.”
Brettschneider brings us the Constitution by making the reader a hypothetical future president met with differing hypothetical (or not so hypothetical) scenarios. As if to say, if you were president aware of your constitutional powers and limitations would you unilaterally and secretly begin a covert war without consulting with the Congress; would you direct your Administration to stop any foreigner at the border simply because he was coming from a Muslim-populated country; would your choice for attorney general be motivated by defending the Constitution or defending you; would you make an interim appointment to the cabinet of a person lacking the essential qualifications simply because he supported your vision of America, or at least what you promised your “base” (think, wall)? Essentially making you the decider of how the presidential oath of office should be carried out requires the reader to understand the Founding Fathers’ goals, far better than just what the author thinks about them.
Relying on historical context, acts of the legislature and case law, Brettschneider presents us with issues that are all relevant today (perhaps today more than ever)—presidency as a bully pulpit, executive orders, the First Amendment (John Adams was, indeed, the first president who tried to silence his critics), the president’s right to his religious beliefs, appointment of justices, declarations of war, the Congressional check and impeachment. And he asks a frighteningly relevant question: What would happen if a president simply refused to follow a court order? It is, parenthetically, worth noting that Brettschneieder discusses how a rogue president who violates his oath is not above the law and can in fact be criminally indicted.
With his vast depth of knowledge, and given today’s turbulent times, Brettschneider provides an accessible blueprint for all that the presidency was meant to be. And the reader cannot help but reflect on Trump’s presidency in every chapter. With that in mind, Brettschneider, significantly, reminds us all—citizens and aspiring citizens—that the president ultimately is checked not by the Constitution, but by the American people demanding that it be respected.
Joel Cohen and Dale J. Degenshein both practice law at Stroock & Stroock & Lavan. Mr. Cohen is the author of ‘Blindfolds Off: Judges on How They Decide’ and ‘Broken Scales: Reflections on Injustice’, to which Ms. Degenshein contributed. They are currently working on a book about oaths, including the presidential oath.