First published January 2007By Douglas A. Wallace J.D.
"I solemnly swear to uphold and defend the Constitution of the United States" is a commitment under oath taken by all attorneys in the United States both in their local Bar Associations, the State Courts and the Federal Courts in order to be admitted to the practice of law in those courts.
All attorneys who have been elected to the United States Congress, either the United States House of Representatives or the United States Senate, have taken the following oath in addition to their underlying oath in their respective State Bar/Courts and the Federal District Courts.
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely,without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter:
So help me God."
The questions must be asked, "Why are these oaths taken?" Are they just "Window Dressing" to give impressive color to bar membership or are they for real? Is the oath a prerequisite to bar membership and to holding office of public trust? If so, if after taking the oath, the individual attorney finds him/herself in situations where he or she fails to execute the oath does that failure jeopardize bar membership?
Attorneys have been given special rights within the legal system. They are designated as officers of the courts. Among the laity of our society, attorneys are deemed exceptional because of learning and training when it comes to the understanding and knowledge of the law. This is why lay men and women are not allowed to represent clients in a legal matter either as to counseling or practicing law or court representation. A lay person may go to court to represent himself or herself as party plaintiff or defendant, but may not represent others. This is of course law that has been established for the benefit of the legal profession with the guise of protecting the public.
In the United States it is estimated that we have about one million licensed attorneys all of whom have taken the oath of protecting and defending the Constitution. With about a million attorneys under oath to protect the Constitution, how is it possible that it could ever be in jeopardy?
Yet today, as millions of Americans realize, the Constitution is indeed in jeopardy and being violated on a daily basis. If we ask for the reason of this sad state of affairs, the only obvious conclusion we come to is that there is no money in it! Wow! "I pledge to protect and defend the Constitution" but under breath, "only if there is money in it!" So what value is there in the Constitution if it can be protected only if there is money it?
The problem is that the average attorney taking the oath will never in his or her lifetime be in a position to "protect and defend" due simply to the fact that by and large the mandatory inescapable obligation falls upon the shoulders of those who are elected or appointed to legislative, judicial and executive powers. The average attorney has no power beyond recommending or suggesting to those in appropriatepositions that attention be given to this or that issue as to it's constitutionality. I would argue that any attorney having taken the oath has a minimum duty to so recommend to any appropriate agency that constitutional issues are at hand and need attention. Failure to do that of course would not rise to the level of malfeasance burdening those who have the duty and are in a position to do something about it yet willfully and wantonly look the other way may indeed be a party to acts dismantling the Constitution.
This latter group are those in the Congress both The United States Senate and the United States House who think that they have been given some political immunity by way of election to look upon the sworn obligation to protect and defend as no more than a political option to be, "On the table" or "off the . table."
Just as obvious are individuals within the Department of Justice (DOJ) who fail to certify the Constitutionality of measures passed by the Congress or of proposed legislation by staff attorneys for the White House. Even more deeply incriminated are those attorneys who draft executive orders for the president which clearly violate the Constitution.
Also, on the fringe are attorneys who draft opinions for members of the judiciary which also clearly obstruct and destroy constitutional protections.
Additionally, US Attorneys in the various districts who enforce any laws passed by the Congress or Executive Orders of The President which are unconstitutional and therefore, are illegal are violating their oaths. For each of them as an attorney member of a bar association, with the knowledge and training required to become an oath swearing member of their respective bars, need not wait for judicial determination of the unconstitutionality of any act before the duty to protect and defend arises within his or her obligation. If it comes down to enforcement or job loss, the sworn obligation must take precedent.
Bar members of the Congress, whether elected or appointed, have no excuse to escape the oath and likewise those in the DOJ from Alberto Gonzales on down are under obligation to protect and defend the oath they have sworn. It is in fact the duty of Mr. Alberto Gonzales to advise the President of the unconstitutionality of any action previously undertaken and currently under consideration. If The President refuses to heed such cautioning advice, it is Mr. Gonzales' duty to remove himself from the office of Attorney General as have others when a President such as Richard Nixon did when he considered himself above the law. It is also the duty of attorneys within the The White House to refuse, at risk of losing their jobs, to write proposed legislation or executive orders which violate the Constitution. And if they don't understand the difference they need to be ordered by their respective bars to take and pass a bar course on the Constitution to maintain bar membership.
It is my opinion that the oath to protect and defend the Constitution taken by anyone as a member of a bar association is a solemn and indeed sacred obligation which cannot be avoided without the penalty of disbarment. No attorney has the option of remaining silent on the issue of the Constitution.