When Does "Support and Defend" the Constitution Become Enforceable?
At what point does "support and defend" become enforceable law? The Oath of Office of congressmen, military officers, and the president, required by Article 6 of the Constitution and, in the case of military officers, by an Act of Congress 13 May 1884, says in substance:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic;...So help me God."
Notably absent is any mention of enemies of our territorial integrity, or support or defense of elected office holders, including the president. By conspicuous absence it was made clear where primary loyalty must lie. The intriguing possibility is that the Founders didn't really care what the territory consisted of, or who was nominally in charge of it. America was to be a system of laws where citizens held, according to the Declaration of Independence which preceded the Constitution, certain "inalienable rights," i.e. rights seen as given by God which man could not take away:
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it...”
That the right to a jury trial (and not just habaes corpus), recently eliminated by the National Defense Authorization Act of 2011, was seen by the Founders as one of the "inalienable rights" was expressed by Thomas Jefferson:
"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
Remarkably, the Framers affirmed that the "securing" of these rights is not only just one reason for having a government, but the reason for its very existence:
"...that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it...”
That the Declaration of Independence is as important a founding document as the Constitution, perhaps more so, was expressed when the Supreme Court declared in 1897:
The Constitution is the body and letter of which the Declaration of Independence is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.
The Constitution itself connects itself to the Declaration of Independence by dating itself from the date of the Declaration of Independence, thereby showing clearly that it is the second great document in the government of these United States and is not to be understood without the first.
Therefore the question. Article 3 of the U.S. Constitution declares:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
But unless we hold the oath the Founders required to be meaningless, an exercise in padding with extra words that the remarkably concise and pithy Framers were not known for, then "war" included the intrigues of "domestic enemies" against the primary object of nationhood which all office holders are required to defend, which is the US Constitution. The National Defense Authorization Act of 2011 constitutes a clear attack upon it, in its blatant abridgement of the Sixth Amendment Right to a Jury Trial:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Now that we know NDAA clearly includes American citizens (addendum below because knowledge is power,) the question is, if the Oath to support and defend the Constitution has no meaning in practice, and is never to be enforced, should it, in the interest of avoiding rank hypocrisy and contradiction before the eyes of the world, be simply eliminated? Should the oath-taker be spared the embarrassment and affront to honor of repeating words which have no meaning, each time an office holder or military officer raises his or her hand from this point forward?
Addendum, NDAA Primer (note, true clarifying language would say simply: "Nothing in this bill shall be construed to abridge the Sixth Amendment rights of U.S. citizens, under any circumstances.")
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forcesthat are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
“Substantial support” of an “associated force” may imply
citizens engaged in innocuous, First Amendment activities.
Direct support of such hostilities in aid of enemy forces
may be construed as free speech opposition to U.S. government
policies, aid to civilians, or acts of civil disobedience.
Rep. Tom McClintock opposed the bill on the House floor saying it:
"specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” — whatever that means.
Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know."
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111– 84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
"Existing law" is Fourth Circuit in Jose Padilla.
Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS":
(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
Even if US citizens are not "required" to be detained by the military in terrorism cases, it is still "allowed."