Wednesday, January 21, 2009

New Days, Pete Seeger, Constitutional Questions

January 21, 2009, 8:00 a.m.

The Dawn
(Brought to you by*)

As the sun slowly rose this morning it truly was "a new day."

My time in a segregated South during the 1950s -- Austin, Houston, and then traveling through Louisiana, Mississippi, Alabama, Georgia and Florida with the U.S. Court of Appeals, 5th Circuit, Judge John R. Brown for whom I was clerking -- with "Whites Only" signs in restaurants, "white" and "colored" water fountains, a racially administered poll-tax system to keep African-American citizens from voting, and the KKK's crosses burned in Fifth Circuit judges' lawns, meant that I, too, had a dream that yesterday would someday come to America. And now it has. Surely it was a much more special day for those whose ancestors were slaves, but it was a day that all Americans could celebrate with pride -- and did.

Beyond that, there is little unique that I could add to the millions of words and pictures from millions of Americans about January 20 -- in emails, blogs, conversations between themselves, and the mainstream media -- so I won't spoil it by trying.

Below, however, is another of what was a moving inaugural moment for me. Pete Seeger who has been giving of himself to movements and progress since I suppose the 1930s; Pete Seeger, with whom I appeared in rallies in the 1960s and '70s, and in whose home we've visited; Pete Seeger, at 92 or 93, beaming at the thousands before him at the Lincoln Memorial who had helped make this inauguration possible; Pete Seeger, who had done it probably thousands of times before, leading a crowd in a very triumphant group singing of "This Land is Your Land."

What would you do?

There was a constitutional law professor's moment yesterday during the swearing in. I'm sure you caught it, but you may not have thought about its possible significance.

The Chief Justice, John Roberts, "administers the oath of office" that turns a "president-elect" into a president.

Article II, Section 1, Paragraph 8 of the Constitution provides:

"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."

The need for this oath would seem to have been modified by the 22nd Amendment, which provides simply, "The term of the President and Vice President shall end at noon on the 20th day of January . . . and the terms of their successors shall then begin."

Without that interpretation, the United States would have been without a president from noon until about 12:05 p.m. yesterday -- since the terms of Bush and Cheney "shall end at noon" and President Obama could not "enter on the execution of his office" until "he shall take the following oath." Thus, Obama became president at "noon on the 20th day of January" with or without an oath.

If that is not the proper constitutional interpretation there is then a remaining reasonable question as to whether President Obama did, in fact, take the oath required by Article II, Section 1.

The Chief Justice recited "I do solemnly swear that I will execute the office of President to the United States faithfully . . .." Obama, a former constitutional law professor and newly elected president, presumably knew the Chief Justice had misspoken. He paused. What to do? With all the planning, every detail attended to, two or three days of celebration without a hitch, what President-elect could be expected to have prepared for the possibility the Chief Justice would screw up the oath of office in this unanticipated moment? The Chief Justice attempted to recover. Obama, confronted with the choice of reciting the oath as written, thereby embarrassing the Chief Justice of the United States, or reciting the oath as presented to him by the Chief Justice, chose the latter -- thereby failing to take the oath contained in the Constitution.

One would have thought the Chief Justice would either have previously known the oath; or if not, read and memorized it ahead of time; or if not, had an accurate copy from which to read, and -- if he feared nervousness on such an occasion -- practiced reading it correctly ahead of time.

But judges, even Chief Justices, aren't consistently perfect. I recall an occasion when clerking for Justice Black that I walked into his office and found Chief Justice Warren and Justices Black and Harlan staring at the bound Supreme Court opinions on Black's shelves, unable between them to think of the case they were trying to remember. Justice Black was known for the little dog-eared copy of the Constitution he always carried in his coat pocket. When Eric Sevareid and Martin Agronsky interviewed him for a CBS documentary, Martin asked him, "Mr. Justice, why do you carry that Constitution with you? I would think by now you'd know it by heart." Justice Black replied, with his famous smile, "Because I don't know it by heart." Apparently neither does Chief Justice Roberts.

(The error is easily remedied, if thought necessary, as it has been in the past -- if one doesn't wish to rely on the 22nd Amendment interpretation -- by President Obama's simply taking the oath, correctly, a second time, which could be in a small private ceremony if adequately documented. [That is what they ended up doing later on Wednesday: Jeff Zeleny, "I Really Do Swear, Faithfully: Obama and Roberts Try Again," New York Times, January 22, 2008.])

What would you have done in that situation?

* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself. -- Nicholas Johnson

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