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Friday, November 21, 2008

Weekend Reading: Honor's Constitutional Moment

Ask and you shall receive.  Just after the election, I wrote on Prawfs that one of the legal issues that is especially pertinent at this moment, and that deserves much more attention, is the law -- constitutional, administrative, jurisprudential -- that surrounds presidential transitions.  It's a surprisingly understudied issue in the legal academy (less so in poli sci), although there have been a few terrific articles on the subject, and there does seem to be a resurgent interest in legal transitions more generally.  The transition from Bush to Obama in some ways raises questions about presidential transitions in a particularly stark manner, although it would seem the incoming and outgoing administrations have both been pretty good about cooperating to ease the process.

Well, I'm now happy to announce that Colloquy, the online supplement of the Northwestern University Law Review, will be running over the next few weeks a series of virtual symposium pieces on the law of presidential transitions.  A number of superb authors are lined up, and I hope we will have more.  (If you might be interested in contributing or responding, let me know!)  I think this is an extremely timely issue that's worthy of serious discussion, and I'm so glad Colloquy agrees; it's exactly the kind of issue for which online law review supplements and virtual symposia were made.  If you are interested in these issues, watch this space.

In the meantime, I have posted on SSRN a draft -- fairly polished but not final, so comments are very welcome -- of my own contribution to the symposium, titled Honor's Constitutional Moment: The Oath and Presidential Transitions.  As the title suggests, it focuses on the implications for presidential transitions of the Presidential Oath Clause.  The abstract is after the jump.  Again, comments are welcome, and I hope it will provoke some legal blogospheric thoughts about the nature and significance of not only the presidential oath and what it means, but all constitutional oaths.  Enjoy.

This Essay is part of a virtual symposium on the law of presidential transitions which will run in the coming weeks in Colloquy, the online supplement of the Northwestern University Law Review. This contribution to the symposium focuses on the implications of the Presidential Oath Clause.

Drawing on Bruce Ackerman's language, the Essay argues that every presidential transition is, in an important sense, a constitutional moment. That moment is instantiated in a single act - the taking of the presidential oath. The oath is both an official act and a deeply personal one, in which the oath-taker stakes his honor on the preservation, protection, and defense of the Constitution. In doing so, the new President necessarily must come to his own understanding of what the Constitution means and what obligations it imposes on him. The President's duty to consider what the Constitution means, and thus what his oath requires of him, is indefeasible: he cannot simply defer to the constitutional views of the courts, of Congress, of prior presidents, or even of the people who elected him.

This understanding of the presidential oath as constitutional moment carries with it a host of possible implications. They involve competing understandings of the nature of executive power, of whether the President is obliged to preserve only the Constitution or the nation itself, and of whether the new President is obligated to revisit and either ratify or rescind - or even prosecute - every action taken by the prior administration. In confronting these questions, the new President will also consider competing informational influences and policy considerations that may weigh on his choices. Ultimately, however, the Presidential Oath Clause makes clear that the new President is oath-bound to independently consider what the Constitution means and what it requires of him, and to act accordingly.

Posted by Paul Horwitz on November 21, 2008 at 03:59 PM in Paul Horwitz | Permalink

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