Lief Carter and Cass Sunstein once again have proved themselves incapable of writing anything uninteresting. Both offer thoughtful observations about the social practice of oaths, and both indicate as well a measure of justifiable skepticism about the practice. The skepticism is derived from a mixture of normative opposition to the induced conformity often associated with oaths and doubts about the empirical likelihood of oaths actually contributing to the behavior sought. Carter, typically, includes in his arguments apt reference to his personal experience; Sunstein, just as typically, presents the reader with a masterful tour d'horizon of the various circumstances in which societies look to oaths to accomplish some social good. Still, having acknowledged the clear strengths of their essays, I confess that I find something missing in each of the pieces. In spite of Carter's personalism, I find both ultimately too detached and almost dismissive of the powerful role that oaths play in the lives of almost each and every one of us.
At one level what I would like, and sought to encourage in my book Constitutional Faith, which contains an extensive discussion of loyalty oaths, is more personal reflection about the oaths we have in fact taken with pleasure and pride, those we have taken with feelings of discomfort and a loss of self-respect, and, finally, those, if any, we have refused to take. More precisely, I am interested in the phenomenological experience of taking such common oaths as those indicating one's assent, among other things, to uphold the Constitution of the United States; uphold the Constitution of Texas (or Connecticut); become wedded to someone "until death do us part"; or acknowledge the sovereignty of God or the trinitarian nature of the Godhead. It is almost certainly easiest for most of us to impute a special emotional significance to such "private" experiences as exchanging wedding vows. But with some frequency one can find evidence of a strong (positive) emotional valence attached to more "public" oaths as well. Thus Gaetano Salvemini, a refugee from Mussolini's Italy, wrote Felix Frankfurter, who is unique among Justices of the Supreme Court for having been a naturalized citizen, about the meaning of the oath of allegiance to the Constitution required of new citizens. "I took the oath with a joyous heart," wrote Salvemini, "and I am sure I will keep it with the whole of my heart as long as I am alive."
Taking Oaths Seriously: A Comment on Carter and Sunstein,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol2/iss1/8