08/16/2011 01:09 pm ET Updated Oct 16, 2011

Rick Perry's Birther/Oath of Office Problem

Paint Creek, TX -- Right now this town, Perry's birthplace, is still part of the United States, so Perry is currently eligible to run for and be elected to the presidency. But two years ago Perry pointedly threatened that if the federal government didn't modify its fiscal policies to satisfy the Tea Party, Texas should consider seceding. Whatever you think is likely to come out of the current Washington "super-committee/automatic cuts" process, it's not likely to satisfy Perry. So the question is, was he bluffing, or is he a leader of conviction?

Perry is already an active advocate of nullification, having supported Texas legislation that specified that "all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed." This legislation passed the Texas House, with Perry's support. Under what circumstances would Perry move from nullification back to secession?

That might seem like an absurd question. We did, after all, already fight a very bloody war over this same issue 150 years ago. But among the radical-right forces that will fire this presidential race, Perry is understood, and supported, as a tepid supporter of remaining in the Union. Shortly after Perry's secession remarks, the Rasmussen poll asked Texans how they felt about the idea. Almost half (48 percent) Texas Republicans actually favored secession. And that was two years ago, before things got really crazy. And Perry has made this kind of comment more than once.

Now that Perry is running for president, I suppose we can feel slightly reassured. Surely he'll want the electoral votes that Texas brings to the Republican ticket, so he's not going to start the next Civil War unless he loses the nomination and/or election. And I will leave to constitutional scholars the unbriefed (as far I know) issue of whether someone is eligible to serve as president if he was born in a place (like Paint Creek) that was a part of the U.S. when he was born but that subsequently has gone its own way? (Or perhaps this has been resolved -- Andrew Johnson was born in North Carolina and became president before that state was readmitted to the Union. But North Carolina's secession was, needless to say, never legally recognized by the U.S.)

But Perry has a more serious problem if he were to win -- the oath of office. It requires a president to swear that he will uphold and "faithfully execute the Constitution." But the Constitution, quite specifically, contains provisions that require "states to comply under threat of civil and criminal penalties..." These provisions are contained in the 14th and 15th amendments to the Constitution, the post-Civil War Reconstruction amendments that were the terms under which Texas, and other states that had seceded, re-entered the Union. The specific purpose of these two amendments was to allow Congress to force states to "comply" with federal mandates. As a result, they were the first amendments to specify that "the Congress shall have power to enforce this article by appropriate legislation."

In fact, the oath of office is frequently paraphrased as "faithfully execute the laws." That's because the Constitution specifies that the faithful execution of the laws is a core duty of the president. So if Perry takes the oath of office, and swears to faithfully execute the Constitution, Article 3.4 of that Constitution requires him to execute the laws -- including those passed by a Democratic Congress and signed by Barack Obama -- for example, the Health Care Act and the Clean Air Act. Perry has already said, repeatedly and publicly, that he doesn't believe Congress has the right to pass such laws -- but his oath of office will be to execute all of the laws, not just the ones he agrees with. So will he refuse to take the oath -- or cross his fingers as he does -- or abandon his core principles at the moment he becomes president?

There are those who argue that Perry has another legal problem -- that by calling for nullification he has called for "insurrection" and thus has violated Title 18 of the US Code, which makes anyone who calls for insurrection ineligible to hold federal office. Since Perry has not, to my knowledge, suggested armed resistance, I think that's a stretch. But it is amazing that a serious presidential candidate, challenging America's first African-American president, is not even being asked about his ongoing flirtation with 19th-century Texas racial politics -- because that's what the post-Civil War amendments were all about.

Now you may be wondering why in 2011 I am blogging about the terms under Texas reentered the Union. After all, when Perry made his announcement that he was running, none of the mainstream media made much fuss about the fact that the new candidate, only two years ago, was an outright nullificationist toying with secession. (Look for even a hint of this in the New York Times coverage for example.) We have learned that Perry can raise a lot of money, but have not been reminded that he toys with the idea of dismantling the Union, and clearly thinks that the wrong side won the Civil War.

I think the mainstream media are profoundly wrong on this one. Yes, Perry made his secessionist comments as part of a campaign to defeat Kay Bailey Hutchison in his re-election campaign. And he beat her. But that doesn't make these comments less dangerous. It makes them even more so, because Perry has shown, as his role-model George Bush once did, that he will say anything to get elected -- power trumps principles, every time. We are redebating the Civil War because one of our major political parties is willing to turn the issues that underlay that war into a tool to regain political power. And if the media continues to pretend that this is not happening, then we are in even worse trouble than it appears when reading the financial pages.