It would appear that the State of Colorado has suddenly developed a new-found appreciation for the Constitution of the United States. At least, that's the impression the State legislature is trying to give with its new law requiring professors and teaching assistants at state colleges and universities to take an oath promising to "uphold the constitution of the United States and the State of Colorado."
Last week, as a teaching assistant at the University of Colorado, I was required by state law to sign this "oath" and have it officially notarized. Since I have never taken an oath before (nor have I ever known anyone who has), I took a few minutes to consider the significance of this bureaucratic pledge to the self-proclaimed representatives of a two hundred year old piece of paper.
I began by considering the oath itself:
"I solemnly (swear);(affirm) that I will uphold the constitution of the United States and the constitution of the State of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter."
Seems uncontroversial, doesn't it? One might even imagine that libertarians could support such a pledge (especially if they're from a Beltway Institute, where the Constitution usually serves as a convenient substitute for any profound or original thought about the ethics of freedom). What I realized, however, was that this "oath" really signifies the complete negation of liberty in several respects.
In the first place, if the legislature really intended to defend the Constitution of the United States against its many academic detractors, then why haven't all the proponents of gun control been thrown out of the universities already? The second amendment of the Constitution is unambiguous in its defense of gun ownership. Aren't proponents of gun control in the academy failing to "uphold the Constitution of the United States"? And what about those who happen to openly support the Patriot Act with its flagrant and explicit violation of the 4th amendment? Why haven't they been ousted from their posts for failing to "uphold the Constitution of the United States"?
Consider the matter from the reverse angle. Suppose that I were to enter my classroom (after having taking the above "oath") and tirelessly advocate that my students purchase firearms as their Constitutional right, that they form or join militias for the defense of their states, and that they cease paying their taxes until the unconstitutional suspension of habeas corpus in Guantanamo Bay, Cuba, ceases. Does anyone really believe that I would receive a commendation for having staunchly upheld my oath to "uphold the Constitution of the United States"? On the contrary!
This so-called "oath" is much more insidious than that, however. The State of Colorado has effectively criminalized all open disagreement with the provisions of the United States Constitution in academic settings. (Professors and teaching assistants take the oath "under penalty of perjury.") Since professors and teaching assistants can potentially be criminally prosecuted for having failed "to uphold the Constitution of the United States," they must not only guard against personally saying anything that can be broadly construed as an attack on the constitution, they must ensure that their students do not say anything like this as well. For, if their students happen to say anything that could be construed as an attack on the constitution, these professors and teaching assistants could be blamed for not having quelled these anti-constitutional sentiments in the name of upholding the constitution. (Of course, the most effective way for professors to preemptively guard against these charges would be to toss these ostensibly treasonous youngsters out of their classes, heaping derision upon them in the process.)
The fact that this "oath" is more dangerous than it is asinine becomes readily apparent when we consider its enforcement. Who, after all, will decide whether I have "upheld the Constitution of the United States" as a teaching assistant? Will the state colleges and universities have to create offices that can ensure that no professors or teaching assistants are undermining the constitution in their classes? Will my students be permitted to contact the Attorney General of Colorado to rat out violations of my "oath"? Will I be oath-bound to rat out my students who openly disagree with the constitution? If so, what kind of colleges and universities would we have, if both students and teachers had to guard against denouncement to the police simply because they happen to discuss whether the fourth amendment could be reformulated in a better way?
Suppose for the sake of argument, however, that I took this "oath" seriously and I really wanted to make sure that I was upholding the constitution in my classes. What version of the constitution would I be oath-bound to uphold? Constitutional scholars, lawyers and judges can scarcely agree on the meaning of any single word in the document as it stands at this very moment, and the interpretation of the document has changed constantly ever since it was ratified. Am I oath-bound to keep abreast of the latest constitutional developments in the U.S. Supreme Court before I speak in class?
As an example of how problematic this particular problem is, and at the risk of perjuring myself, I will admit that I do not desire (nor do I intend) to uphold the Constitution of the United States as it now stands, because I consider most of the document to run counter to individual liberty. Instead, I desire to have the several states peacefully secede from one another. Now, if I were to attempt to foster this idea among my students would I be "upholding the Constitution of the United States," or would I be undermining it? The Constitution of the United States, after all, used to be interpreted to allow for the peaceful secession of the states.
In the end, I signed the "oath" like every other professor and teaching assistant at public universities and colleges in the state of Colorado. I felt somewhat ashamed that I wasn't willing to stand up for my right to question the constitution in class by refusing to sign. (I was also slightly worried that, depending upon how the ridiculously ambiguous phrase "uphold the constitution" was interpreted, I may have perjured myself). Mostly, however, I just felt depressed by the irrepressible feeling that the universities in Colorado would likely become more sterilized, boring, and dangerous over time, as they always do in totalitarian states where allegiance is gained solely through force.
September 2, 2006