Senator Feingold lectures at the Law School.

The topic: "Upholding an Oath to the Constitution: A Legislator's Responsibilities." Russ Feingold spoke about his devotion to the oath he took as a senator to uphold the Constitution and the second oath he took for the Clinton impeachment trial. Feingold was the only Democratic senator to vote against the motion to dismiss the impeachment. He applied a legal standard to the motion and had to vote the way he did because he could not say that there was no chance of proving the charges against the President. Democratic senators admitted to him in private that he was right. "It was a vote where I tried to move beyond partisanship."

Feingold talked about his campaign finance reform law, which he cared about because he was "tired" of hearing that politics was "about money, not ideas." He reminisced about the court case, challenging the constitutionality of the law, and described sitting through a nine-hour deposition conducted by the great First Amendment lawyer Floyd Abrams. Abrams began his questioning praising Feingold to his face for his reputation for upholding the Constitution. As Feingold put it later in the question session, Abrams spent the nine hours "trying to confuse me." I'd say the praise that he started off with was a deliberate effort to unnerve the senator. Feingold could hold his ground, he thought, because he believed his position was consistent with his oath to protect the Constitution, because "we spent a great deal of time crafting that bill" to avoid constitutional violations. He respected the Supreme Court's precedent on campaign finance regulation, even to the point of regretting a vote he had cast early on in his career about amending the Constitution to overrule Buckley v. Valeo. The First Amendment should not be diminished, he thought, even by the amendment process.

He spoke about the Patriot Act and his anguish at the speed with which it was pushed through the Senate, beginning with a closed door hearing on October 3, 2001. After Feingold voiced his civil liberties concerns, Attorney General John Ashcroft telephoned him, and, in that conversation, Ashcroft, according to Feingold, agreed that Feingold had raised many reasonable concerns, but that he still wanted his support. Later, according to Feingold, "the White House overruled Ashcroft."

[NOTE: The remainder of this post is an attempt at reconstruction of text that disappeared mysteriously on April 23, 2005. To do the reconstruction, I went back to my handwritten notes and also used two paragraphs that were quoted on Instapundit.]

Feingold objected to this sort of "legislation on the fly." Many members of Congress admitted to him that they had not read the text of the Patriot Act. A procedure was adopted that barred amendments, and the text had not gone through the Judiciary Committee, so there had been no chance to call attention to constitutional problems. Feingold decided to oppose unanimous consent because he "felt he had no choice" and he needed to uphold his oath to the Constitution. He described a difficult conversation he had on the floor of the Senate with Tom Daschle as "suffocating. " Feingold offered his amendments, and Daschle oppposed him, in what Feingold called a "frightening scene." With deep disapproval, Feingold quoted Daschle as saying "My argument is not substantive, it's procedural."

In his work on the Subcommittee on the Constitution of the Senate Judiciary Committee, Feingold said he votes against amending the Constitution. He thinks it is better to craft legislation so that it is constitutional (as in the case of campaign finance reform) or simply to reject the amendment as not important enough (as with flag burning).

He ended his speech with the observation that it has been complex to keep his oath to uphold the Constitution and that he has "struggled constantly to get it right."

He took a few questions from the audience. The first was from Professor Alan Weisbard, who asked if a legislator has a duty to interpret the Constitution independently from the courts. Feingold said that there was an obligation not to pass the law if it was clearly unconstitutional, but that he didn't need to be certain or to predict what the Court would say. He could vote for the law as long as he had a good faith belief it would be upheld. "The presumption is it's constitutional unless somebody tells me it really can't fly." This seemed odd to me and made me rethink his opposition to the Patriot Act. Where was the presumption? Must it not be that he opposed the Patriot Act as a matter of policy?

My colleague Jim Jones asked him what he does if he's convinced the Supreme Court has gotten a decision wrong. Feingold said he tries to craft the legislation to avoid the constitutional problems and that he also looks to elections to change who is on the Court. Feingold seemed to be thinking again of the campaign finance reform law, which I don't think was what Jones had it mind. Jones was, I think, concerned about the perniciously wrong cases, like Plessy v. Ferguson. With some more prodding, Feingold said he said he believes the cases that permit the death penalty are wrong, but that the new death penalty case (making it unconstitutional to execute a person who committed his crime as a juvenile) is an "exciting example of how the Constitution can evolve." Jones, still not satisfied, asked whether he was just counting the Justices' votes, and Feingold said he mostly had to accept that they are right, for example, with the Line Item Veto case. "I respected it ... that's the normal situation," he said, but he acknowledged that there are "extreme situations" he'd treat differently. He then joked that this really was like being back in law school, which drew a big laugh from the crowd.



I would never have said this out loud, but I couldn't help thinking how interesting it was that Feingold shaped his whole lecture around the sanctity of the oath, when just a few days ago he announced that he was getting a divorce, his second. Was I the only one who thought how strange it was to hear a man piously invoke a passionate fidelity to an oath when he had -- so conspicuously -- gone back on the marriage oath twice?

But I like Senator Feingold. I do think he's a good man. I don't presume to know what happens to people in their marriages, and I am divorced myself. Nevertheless, he could have discussed his devotion to the Constitution from some perspective other than the fact that he'd sworn an oath. Taking an oath to the Constitution, after all, is not the strongest reason to support it.

UPDATE: Many of the commenters think it isn't fair for me to compare marriage vows and the oath to support the Constitution. And one commenter asks the interesting question: "What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to 'evolve' under the watch of political judges (with no Constitutional basis for this evolution) is preferable." Here's the answer I give in the comments:

Thanks for making me think about that! There really is an answer. The idea is that it's terrible to amend the Constitution because you're taking away something that's there. We've been revering the First Amendment (to take the prominent example) all this time, and it would be unseemly to use political power to remove it as an obstacle. But if a court would just say, that obstacle you imagine really doesn't exist, then you haven't wielded political power against the revered document. Of course, [Feingold] still supports using political power to stock the courts with people who will perceive the evolution he wants them to perceive. It all just works so much better if you can get a judge to do it for you. Plus it is very hard to amend the Constitution, so if you try, you'll probably fail, and your enemies will rake you over the coals the whole time -- for wanting to change the Constitution. Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution.