In the months after the 2016 presidential election, Fordham Law School Visiting Professor Corey Brettschneider envisioned writing a book that outlined how President Donald Trump’s rhetoric and actions directly opposed and undermined the U.S. Constitution he swore an oath to uphold. But conversations with his editor, family members, fellow academics, high school students, and Trump supporters calling in to a popular talk show program convinced the scholar to chart a different course.
Brettschneider’s new book, The Oath and the Office: A Guide to the Constitution for Future Presidents (W.W. Norton & Company), is a historically rich and academically rigorous examination of the powers of the president, the meaning of “We the People” and the Bill of Rights, and checks on the president designed to educate seekers of the nation’s highest political office and average citizens alike. The book’s insights, contrary to Brettschneider’s initial designs, are not tailored toward one president, instead reflecting a timeless approach that seeks to rise above partisanship.
“The Constitution is not just a binding set of rules, but also a common set of values,” Brettschneider said, stressing the book’s central idea, which he helps elaborate with reference to figures like constitutional framer and president James Madison. “In the book, I try to show how these values are elaborated in the Constitution’s text, in Supreme Court cases, and in presidential history. In the process, I discuss how the actions of many different presidents—Trump included—have brought our country closer or farther away from realizing these constitutional values.”
Book review magazine Kirkus bestowed a starred review on The Oath and the Office and declared it “vital reading for all Americans” for its “pointed, cogent, and authoritative analysis of presidential policy and power.” The New York Times also praised Brettschneider’s book for its framing of how presidents should understand their constitutional role, saying “[t]his framing is one of its great virtues.”
The book Brettschneider first intended to write would have expanded on a Politico article he wrote prior to the election, “Trump vs. The Constitution: A Guide,” that focused on the president’s campaign proposals and why they represented clear violations of the Constitution’s First, Eighth, and Fourteenth Amendments, among others. However, Brettschneider realized while interacting with callers sympathetic to Trump on talk show host Dan Yorke’s program during the election season that he needed to approach the issue differently to land his desired point with people skeptical of his views toward Trump. Later, when speaking with students at his alma mater, Ridgewood High School in New Jersey, Brettschneider observed how hungry these engaged young citizens were for information about the president’s constitutional imperatives.
“The president’s primary obligation, made explicit in the oath, is to ‘preserve, protect, and defend’ the Constitution of the United States. Many citizens don’t realize this,” Brettschneider said, noting that he has aimed to make the book an accessible and helpful tool for civic education that would be interesting for lawyers and academics but also could be read by high school students as well as the general population.
While a president’s primary obligation is news to many people today, the concern that presidents might run afoul of their oath was forecasted long ago by none other than George Washington.
Washington’s second inaugural—the shortest inaugural address in U.S. history at 135 words—is one of the most important historical texts to frame the argument in The Oath and the Office, according to Brettschneider, who is also a professor of political science and public policy at Brown University. Washington recognized implicitly that presidents would sometimes disregard their oath and that it was up to congressional members and citizens to remain vigilant, the scholar noted. If Washington failed to live up to the oath himself, he stressed that he should be subject to “constitutional punishment.”
The third and final section of The Oath and the Office tackles how to stop a president who behaves in ways antithetical to the oath. While legal commentators argue today about whether Trump can be subpoenaed to answer questions by Special Counsel Robert Mueller, the answer is clear based on case law from U.S. v. Nixon and Clinton v. Jones that a sitting president can indeed be called to testify, Brettschneider said.
“The dignity of the presidency is attached to the office, not the individual who holds it. A person can degrade the office,” Brettschneider explained. He also believes that a sitting president can be indicted, as he wrote in a Washington Post editorial in August.
Trump’s behavior—from his Muslim ban to his attacks on NFL players’ constitutionally protected protests—suggest that he doesn’t understand the Constitution and views the law as something to be avoided rather than respected, Brettschneider said.
“I’m not sure Trump himself will be motivated to read the book, but I hope that voters electing future presidents will read it,” Brettschneider said. “It’s a tool to understand our current constitutional conflicts involving the president. But it’s also a book about the future and how we can better realize our constitutional ideals going forward.”