Sunday, January 25, 2009

Strict Textualism, So Help Me God

As has been widely reported, Chief Justice John Roberts messed up the words when adminstering the oath of office to Barack Obama at the presidential inauguration on Tuesday. The Chief Justice prompted Obama to say "execute the office of President to the United States faithfully" instead of "faithfully execute the office of President of the United States". For the sort of the folks who wished at all costs to disbelieve that Obama is in fact the President of the United States, this trivial technicality gave them a slender straw to clutch in denying that he is really the President. The oath is very explicitly specified in the US Constitution, in Article II, Section 1, where it states:
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 President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Knowing that he would be dogged by this if left uncorrected (after all, look at how the tinfoil brigade refuse to let go the idea that Obama isn't a natural born citizen of the US), Obama and Roberts met on Thursday afternoon for a do-over. This time, the oath was said slowly, carefully, and correctly. The official announcements were careful not to acknowledge any claim that Tuesday's oath was insufficient, instead saying that the second oath was taken for "an abundance of caution". In at least two prior cases, with William H. Taft and with Herbert Hoover, the wording of the oath deviated in similarly insignificant ways from the constitutional text, and it was not deemed necessary to readminister it. However, I can respect the decision of Obama and Roberts do a retake, out of diligent respect for the strict text of the Constitution.

Now it seems that some feathers were ruffled because Obama did not have his left hand on a Bible for the do-over oath. Newsflash for those folks: the do-over was about hewing to the Constitution, which specifies the precise words for the oath, but does not say anything about having one's hand on any particular book. (It should be noted that Teddy Roosevelt did not swear his oath on a Bible, and John Quincy Adams swore on a book of law.) Anyone concerned with strict adherence to the Constitution should not be worried about the absence of a Bible. Instead, they ought to be concerned with the extra-Constitutional "so help me God" at the end of the oath. Now to be clear, I have no objection to the President adding that phrase unprompted after completing the oath. What I do object to is the Chief Justice deposing the President, "so help you God?", as if it were part of the constitutionally mandated oath. In Tuesday's oath, I found Roberts' tone at that point particularly creepy. He posed the question with such stern vehemence that it was clear there was a right and a wrong answer. I'm not sure how Roberts, supposedly a strict textualist, rationalizes his deposition of "so help you God", which is not only beyond his explicit brief in Article II, Section 1, but in apparent conflict with Article VI:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, 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; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


KipEsquire said...

The point was recently made somewhere that the Twentieth Amendment actually repeals the oath requirement altogether:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Since Amendments trump Articles, the terms now end and commence without any need for the Oath.

P.S. You mean Article VI -- there is no Article XI. ;-)

P.P.S. Thanks for the FB add!

Tom Chatt said...

Oops, I do indeed mean Article VI. I guess I shouldn't try to do Roman numerals late at night. ;-)

Re the 20th Amendment, it's not clear that the amendment repeals the requirement for the oath. There's an interesting discussion of that on the Wikipedia page.