Wednesday, January 21, 2009

Three notes on the inauguration and the Constitution

1. I'm reading Laurence Tribe's new book The Invisible Constitution in which the new President's former professor (see p. 201) argues that there are a number of principles and procedures that are not set into words in the great document, but that follow naturally, or even inevitably, from the text. I'll probably have more to say about this later, but for now I just want to note that it dawned on me yesterday that the specifics of the inauguration are a vivid example of this.

Here's why: Article II, Section 1 concludes with this sentence:

"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.'"

And where did Obama take the oath of office? Washington, D.C., of course. But notice there is nothing in the text of the Constitution to require him to have taken it there. What if he'd said, "Hey, I'm from Chicago, I'd like to take the oath there"? Nothing unconstitutional about that based on the written text. But I think we'd agree that it basically follows from having the national government operate out of Washington that the oaths of office need to be taken in Washington. I'm sure the people of the Windy City wouldn't have wanted millions of people clogging Grant Park anyway.

But say for a minute that Obama did raise his right hand on the shores of Lake Michigan. When should he do it? The Twentieth Amendment mandates that the term of the outgoing President ends at noon on January 20th, and thus the new presidency begins. But noon on January 20th where? It doesn't say. So if Obama took the oath of office in Chicago, would he have to do it at 11:00 local time so it would be noon in the capital? Or would he take it at noon Central Time? (Cue Alan Jackson and Jimmy Buffett singing "It's Five O'clock Somewhere.")

Isn't it great having the inauguration in the District so we don't have to worry about this stuff?

2. Okay, I'll admit it, I thought Obama flubbed on reciting the oath and didn't realize it was Chief Justice Roberts until the matter was brought up later. But I assumed the error was the President's for the logical reason that it never would occur to me that Roberts might try to administer it by memory, thereby running the risk of what happened actually happening.

Here's the bigger question. Even if the Chief Justice wants to try to recite his lines from memory, shouldn't there be some large, grand, leather bound, gilt-edged Constitution he holds in front of him for an occasion like this? A splendid Constitution that lives in the National Archives and is only taken out once every four years on January 20th? We always hear about what Bible the President chooses to take the oath, but in a county with a secular government, shouldn't it be as big a deal what Constitution is up there at the podium at the same time?

3. I didn't get nearly as much of a chuckle over the flubbed exchange between Roberts and Obama as I did over Aretha Franklin's hat. Okay, that has nothing to do with the Constitution, but I wanted to write it anyway.

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