Legal Commentary

They did. But it makes absolutely no difference. Barack Obama is still not President and may not execute the powers of that office.

To begin with, it is completely clear that Obama did not recite the oath prescribed in the Constitution at his inauguration on Tuesday. Article II, section 7 provides:

7. 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."

Do you mean to suggest, for example, that Obama could add the words "hey nonny nonny and a hot cha cha" in the middle of the oath and it would be equally effective? Can he add the words "only if I feel like it" at the end of the oath? Surely you jest! And if your position is that he can make any changes he wants as long as they do not materially alter the oath, who is to decide whether the changes are material or not? That is why we have a written constitution, a Constitution that makes clear that he shall say just these words, and no others.

Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly. If he flubs it, that's it! He can't execute the powers of his office. After all, Unitary means "one." Clearly if the President could take the oath repeatedly, he wouldn't be very Unitary, now would he?

Suppose, however, that one rejects this utterly compelling argument based on the sacred and indisputable doctrine of the Unitary Executive. Obama's do-over still fails. That is because Obama callously deleted words from the oath and added words that are not in the Constitutional text. Surely if he may not move the word "faithfully" around in the text he may also not add or delete words either.

In this case, Obama added the words "Barack Hussein Obama" after the word "I" and "So help me God" at the end of the oath. Furthermore, he deleted the words "(or affirm)."

The mind boggles at this display of utter lawlessness. How could Obama and Chief Justice Roberts engage in such blatant editing of the sacred constitutional text? Can't they just read the words of the Constitution without editorializing? It is precisely this hubris on the part of judges and politicians that leads to the dreaded disease of "living constitutionalism," in which government officials add words to the constitutional text that aren't there and delete words that they find inconvenient. It is simply outrageous that both Roberts and Obama feel that they must flaunt their living constitutionalism before our very eyes in their faux Presidential oath of office!

But you may object, no president since George Washington himself has read the constitutional text verbatim since the founding of the Republic. They have all inserted their names into the text in a raw display of egotism, and then added the words "So help me God." In addition, all the Presidents have deleted the words "or affirm" with two exceptions, when a President-elect deleted the words "swear" and "or." If the addition and deletion of words in the oath makes the oath ineffective, you may argue, no President has ever legitimately executed his office.

To which I say, so what? Are we a government of laws or a government of men? Do we have a written constitution that is the supreme law of the land or do we simply have a set of suggestions that can be cavalierly discarded whenever they would offend the sensibilities of a President-elect? The Constitution's text is clear. It is up to us to follow it with blind and mindless obedience. If a President-elect cannot read a simple text faithfully without editorializing, he doesn't deserve to be the President. And if no President has been able to resist thinking he knows better, then none of them have lawfully acted as our nation's Chief Executive.

But, you may object, didn't Barack Obama became President anyway on noon of Inauguration day, because of the 20th amendment? Of course not. The text of the 20th amendment is perfectly clear on this point:

1. The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd 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.

I am sure that many people wish that the President could edit the oath of office however he likes, for example, adding his own name and the words "so help me God." But these people do not understand what it means to have a government founded on a written constitution. Perhaps the failure of Barack Obama to become President, and the crisis that ensues, will serve as a lesson to them to hew more closely to the genius of our founding fathers.

Full post as published by Balkinization on January 22, 2009 (boomark / email).