“I do solemnly swear … to uphold the constitution ….”

A reminder in the Washington Post today of one of my pet peeves: the routine disregard by politicians of their oath to uphold the constitution.

I’m not a bitter partisan on health reform, but I’m disturbed at the paucity of discussion of the constitutionality of pending proposals. The questions are not trivial.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although … three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

If “three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution,” why would a politician violate his or her oath to uphold the constitution by insouciantly passing the buck to the Court?

Because they think the bill’s popular? Well, I guess popularity’s a good reason to violate an oath.

Again, it’s not just health care. Politician’s shrug off constitutional objections all the time. I could respect them if they plausibly said “I have spoken to my legal advisers about this, and I believe Bill X is constitutional.” But the more common line is “the Court will have to decide if it’s constitutional.” If so, then why did you swear to uphold the constitution, sir?