“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'”

— U.S. Constitution, Article II, Section 1, Clause 8

“The Senators and Representatives before mentioned…and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

— U.S. Constitution, Article VI, Clause 3

“The [McCain-Feingold campaign finance] bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections. I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment. I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.”

— President Bush, March 27, 2002, in a written statement upon signing into law the Bipartisan Campaign Reform Act

As the Bush administration prepares to go before the Supreme Court to defend the Bipartisan Campaign Reform Act, our Luiza Chwialkowska reports, speculation abounds in Washington that the administration privately hopes the court will overturn the law. The administration has stuck itself in the position of defending the constitutionality of a law that few think the president believes is constitutional. It’s not simply a guess that President Bush believes the Bipartisan Campaign Reform Act of 2002 violates the Constitution; he said as much himself, as reprinted above, on the day he signed the law. Despite having sworn a constitutionally mandated oath to “preserve, protect and defend the Constitution of the United States,” Mr. Bush affixed his name and the power of his office to a piece of legislation he clearly believes is in direct conflict with the First Amendment.

Some believe he did it to placate Senator McCain. Others that he didn’t want to be seen as opposing “reform.” Given his doubts, though, it was a violation of the constitutional oath. And this is to say nothing of Republicans in both houses of Congress who hopped on the reform bandwagon with the same intention to rely on the Supreme Court. All involved ceded their power and responsibility under the Constitution to the Judiciary. They have not only put the institutions in which they serve in a constitutionally unsound position, but they have damaged the credibility of the Republican Party in its attempts to rein in judicial activism at the federal level. When congressmen are not willing to vote down noxious provisions in legislation, and the president is unwilling to veto such provisions, both relying on the courts to do their work for them, they set a Legislative task on the shoulders of the Judiciary branch of government. Hamilton warned about this in Federalist No. 78, where he wrote: “Liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

These kinds of warnings, echoing across two centuries, are something upon which to reflect as the Supreme Court gets ready to sit on the campaign finance law. Opposition to the law comprises an extraordinary mix of groups, from the National Rifle Association to the National Abortion and Reproductive Rights Action League, to the American Federation of Labor-Congress of Industrial Organizations, to the American Civil Liberties Union, to the Republican Party with which Mr. Bush is presumably going to seek a second term. The erosion of our rights to free speech, to petition the government, to assemble peaceably, to, for that matter, religion, all these are eroded by the law. As this is battled out before the Supreme Court, it is well to remember that these rights would not now be in jeopardy if a president who prides himself on his plain talking had simply acted on what he felt in his gut was an unconstitutional law in the first place.