Preserve, Protect, Defend


Published January 08, 2009, issue of January 16, 2009.
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In his brilliant biography of the U.S. Constitution, Akhil Reed Amar notes that the document is a contract, a covenant between Americans and the government created to serve them. The Preamble’s lyrical framework bridges the personal (“We the People”) with the active promise (“do ordain and establish this Constitution”). And what the people had ordained and established, Amar notes, “one person would solemnly swear to preserve, protect, and defend.”

That person, of course, is the president, and as a new one readies to take the oath of office by repeating the words contained in Article II, Section I, it’s worth dwelling for a moment on those words and their historic obligation. When Barack Obama places his hand on the Lincoln Bible at noon on January 20, he will also enter into a contract, a covenant, with the American people, by pledging to execute his office and, “to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” (“So help me God,” which has effectively become part of the oath, is not in the official text but more of a wish. Or a plea.)

The oath is unusually personal, the only time in the entire 5,000-word document that the words “I” and “my” are found. And it is surprisingly simple, a taut promise to serve no one or no thing but the law.

It’s a promise that has been egregiously broken during the Bush administration, with its blatant disregard for the limits of executive power and the rights of citizens. Congress shares its portion of the blame for this imbalance, by its unwillingness to behave like the strong, independent branch of government envisioned by the Founders and hold the White House accountable for its actions. But ultimately, the worst offenders in this historic drama are the president and those he allowed to condone torture, domestic spying, excessive government secrecy and the willful disregard of basic civil rights for detainees.

Fortunately, the incoming president appears to better understand and appreciate the values and restraints built into the Constitution, a document he once taught in law school. From the beginning of his presidential campaign, Obama spoke out against Bush administration policies that he believed eroded the rule of law and, since his election, has nominated to the Justice Department lawyers who share his assessment. As Indiana University law professor Dawn Johnsen, tapped to head the Office of Legal Counsel, said at a legal conference in 2007, “The president of course is not above the law.”

No, he (and, someday, she) is not above the law. He must preserve, protect and defend the Constitution, not only against foreign invaders who would disrupt our system of government, but from our own human proclivities to centralize power instead of share it, to tyrannize in the name of security and trample on the rights of those whose voices can be silenced.

We wouldn’t presume to suggest what Obama should say in his inaugural address. Writing a script for this master wordsmith is beyond our ken. We only hope that he takes the oath of office as seriously as its creators intended.

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