Yesterday, U.S. Supreme Court Chief Justice John Roberts erred in delivering the constitutionally prescribed oath of office to President-elect Barack Obama. In an apparent effort to avoid public offense to the Chief Justice, Obama repeated the incorrect phrasing. The 35-word oath is the only sentence given in quotes in the U.S. Constitution. Just last week, a federal district court paved the way for the words "so help me God" to be added to the sentence (see my earlier blog). The ad hoc alteration and the permissible addition of words have legal scholars divided on whether the textual requirement of Article II, Section I of the U.S. Constitution is symbolic or legally significant. If symbolic, Obama became the 44th President of the United States yesterday upon his swearing-in at the Capitol, regardless of the actual content of the oath. If legally significant, Obama must deliver the oath again -- verbatim -- from the U.S. Constitution. Purple ticket holders for the swearing-in, many of whom were trapped in a highway tunnel during the inauguration, welcome a "do-over" ceremony, just in case the strictest constructionists and textualists are legally correct.

Constitutional Requirement for Oath of President

The oath of office as prescribed in Article II, Section I of the U.S. Constitution requires the following 35 words:

What Chief Justice Roberts and Obama Actually Said:

Roberts: "Are you prepared to take the oath, Senator?"

Obama:  "I am"

Roberts: "I, Barack Hussein Obama,"
Obama:   "I, Barack,"
Roberts: "do solemnly swear"
Obama:   "I, Barack Hussein Obama, do solemnly swear"
Roberts: "that I will execute the office of president to the United States faithfully..."
Obama:   "that I will execute..."
Roberts: "faithfully execute the office of president of the United States..."
Obama:   "the office of president of the United States faithfully..."
Roberts: "and will, to the best of my ability,...
Obama:   "and will, to the best of my ability,...
Roberts: "preserve, protect and defend the Constitution of the United States,..."
Obama:   "preserve, protect and defend the Constitution of the United States,..."
Roberts: "so help you God?"
Obama:   "so help me God."

Full Text of What Obama Actually Said:

"I, Barack Hussein Obama, do solemnly swear that I will execute the Office of President of the United States faithfully, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States, so help me God" (emphasis added)

Legal Issues

If President-elect Obama did not accurately deliver the oath as required by the text in the U.S. Constitution, is Obama legally the President? For analysis, let's break that down into three legal questions:

1. Did switching the placement of the adverb "faithfully" within the sentence invalidate the oath?

2. Does adding the words "(comma) so help me God" to the sentence invalidate the oath?

3. Does the 20th Amendment supersede or augment the oath requirement in Article II, Section I?

Argument: Inaugural Oath Is Symbolic

Prof. James Thurber, the Director of the Center for Congressional and Presidential Studies at American University, endorsed the interpretation that the oath is symbolic on the Diane Rehm public radio show this morning. A caller brought up the issue. All three guests -- author Jabari Asim, Washington Post Report Anne Kornblut, and Prof. James Thurber -- supported the position that Obama became the 44th President regardless of whether he gave the oath verbatim.

Prof. Jonathan Turley, a professor of constitutional law at George Washington University, told the Washington Post that "I don't think it's necessary, and it's not a constitutional crisis. This is the chief justice's version of a wardrobe malfunction." Still, he recommends that Obama "should probably go ahead and take the oath again." He explained: "If he doesn't, there are going to be people who for the next four years are going to argue that he didn't meet the constitutional standard. On his blog, Turley writes: "The easiest solution is to simply retake the oath, which was done by Calvin Coolidge and Chester Arthur."

Argument: Inaugural Oath Is Legally Significant: "Fixed and Exclusive" Wording

A strict constructionalist or textualist would argue that the error by President-elect Obama is legally significant because the text of the Constitution is unambiguous, fixed, and exclusive. Thus, they would argue, there is no legal authority to alter the 35-word oath, absent a constitutional amendment to change the wording.

The plaintiffs in Newdow v. Roberts argue that it is impermissible to add words "so help me God" to the oath because Article II, Section I should be considered under the "fixed and exclusive" standard of constitutional interpretation. I discuss the Newdow argument more in-depth in an earlier blog posting.

An argument also could be made that the addition of the name after "I" is legally impermissible. (i.e. "I, Barack Hussein Obama, do solemnly swear.") Unlike in Newdow where the additional words are for religious purpose, the addition of the person's name serves as identification of the taker of the oath. In comparison, the legislative oath for federal justices requires the candidate's name as part of the oath. My oath for bar certification at the state level also required my name as part of the oath. Yet, the Constitution omits the name requirement for the Office of the President.

Under textualism, even a minor modification of the oath would be fatal. A textualist believes that judges should adhere to the text when the text is on point, clear, and unambiguous. Here, the Constitution is explicit in its instructions that the President-elect needs to take a 35-word oath as it appears in quotes.

Similarly, a strict constructionalist believes judges should strictly apply the text and should not exercise discretion to read further meaning into the document. Thus, a strict constructionalist would end the analysis if the text is on point and clear. No further analysis of original intent, legislative history, or evolution of norms would be necessary. President Bush advocated for increased strict constructionalism by Supreme Court justices. In 2007, President Bush stated: "Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy—and it needs to stop."

No word yet from Supreme Court Justice Scalia, a proponent of strict constructionalism, on whether he would require the officiator of the oath to deliver it verbatim or whether he considers the text to be fixed and exclusive. Because the U.S. Constitution does not require the oath to be delivered by the U.S. Supreme Court Chief Justice or accurately, the error in delivery by John Roberts arguably likely would not be legally significant. Rather, the error of response is legally significant and could necessitate repeating the oath accurately.

Prof. Akhil Reed Amar, a a professor of constitutional law at Yale University, told the Washington Post: "Out of a super-abundance of caution, perhaps he should do it again."

Argument: Inaugural Oath Is Not Required and Has Been Superseded by Amendment 20

The legal question is whether Article II, Section I of the Constitution was modified or superseded by Amendment 20. It establishes terms of the President and Vice President. As of ratification of the Amendment in 1933, the terms end on January 20 at noon. Amendment 20 also states: "and the terms of their successors shall then begin." If Amendment 20 modified Article II, Section I, the president-elect must still render the oath. Presumably, the President-elect would need to state the oath prior to the noon deadline for a seamless transition of power at the noon hour.

If Amendment 20 supersedes Article II, Section I, no oath is required for the incoming president to assume office. The phrase, "and the terms of their successors shall then begin," would be controlling. The succession of presidents would be automatic. I find this argument unconvincing. The oath, being the only sentence in the U.S. Constitution to be in quotes, is a vital part of the original intent of the Constitution. Moreover, the oath reflects a strong tradition for peaceful, democratic transitions of governance and accountability of the highest elected official. Also, the practice of the oath of office continued after the ratification of Amendment 20. One also could look at the construction of the Amendments to determine if any other Amendment provides greater clarity in superseding the original text rather than augmenting it.

What Oath Did John Roberts, Jr. Have to Take for the Supreme Court?

For comparison, the oath of Supreme Court justices is prescribed by legislation in Title 28 of the United States Code:

• U.S. Constitution
• 2009 Inaugural Oath, Video on YouTube
• Official Website for The White House