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Friday, January 23, 2009

Harmless error, unconstitutionality, textualism, and the oath kerfuffle

Two (typically) good Balkinization posts on the oath controversy, one from Jack Balkin and one from Mike Paulsen. Paulsen is trying to explain why the misstated oath does not matter. But he makes the argument in the course of distinguishing what the Constitution requires from the consequences of failing to abide by the text.

I and others have noted that no one takes the presidential oath precisely as written, because everyone adds his name and "so help me God" and omits "(or affirm"). And if those additions/omissions do not matter (a point on which everyone agrees), we have to figure out why transposing the word "faithfully" matters. Paulsen argues, and I think I agree, that the question is whether the deviation (whether addition, deletion, or alteration) "matters," whether it "detracts" from the substance of the oath; presumably that question focuses on whether the deviation from text changes the meaning of the oath. Adding a name or "so help me God" does not; neither does omitting "(or affirm)" (which would make the oath incoherent); and neither would inserting random mumbo-jumbo in the middle of the oath. Transposing a word also does not change meaning--"faithfully" still is an adverb modifying "execute." Replacing a word might not matter if it did not change meaning (say a Jewish President said "Hashem" rather than "God"), but it would matter if it did change meaning (Paulsen uses the example of replacing "faithfully execute" with "probably execute").

Here is where Paulsen is doing something different. Most people (myself included) argue that because the transposition did not change meaning, just as adding "so help me God" does not change meaning, the Constitution was not violated by the oath at the Inauguration. But Paulsen argues that it did violate the Constitution (because the focus is purely on the text and the way the oath always is inconsistent with the text); in fact, every President since Washington has, formally, violated the Constitution by adding "SHMG" and their names. But, because meaning has not changed, the unconstitutionality (the "constitutional error," if you will) is harmless; it does not matter and does not require any remedy.

So in asking whether transposing "faithfully" renders the oath invalid, the question is not whether the oath was unconstitutional; it was unconstitutional, as has every other oath since 1789. The question is whether the unconstitutionality matters. Interesting take that matters for the broader Originalism/Textualism debate (which is what Balkin was taking on in his post), although not necessarily for putting the current oath nonsense to rest.

Posted by Howard Wasserman on January 23, 2009 at 04:02 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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We already have times that constitutional violations go unenforced. The doctrine of harmless constitutional is well-established. Paulsen is trying to bring that doctrine into other areas, including provisions that enforced by the popular branches rather than the courts.

Posted by: Howard wasserman | Jan 24, 2009 7:44:18 AM

Does anyone seriously doubt that "(or affirm)" is intended as an alternative to "swear"? So of course it should be dropped.

Adding a name, or moving an adverb, however, strike me as unconstitutional. So yes, I agree with Paulsen that every inaugural oath has been unconstitutional. But should we really be drawing distinctions between "constitutional errors" that matter and those that don't? Doesn't that undermine the point of a constitution altogether?

Why have one if we trust popular opinion to determine when it does and does not need to be followed?

Posted by: ColumEx | Jan 24, 2009 1:09:49 AM

Seems to me that "the following Oath or affirmation" refers to the textually-expressed meaning, not the words themselves, just as taking the Article VI oath means promising to support the textually-expressed content of the Constitution, not just the words. See here at 21-22. So adverb placement &c. don't matter.

Posted by: Chris | Jan 23, 2009 7:07:10 PM

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