Google+
Close

Bench Memos

NRO’s home for judicial news and analysis.

Messing Up the Oath—Part 2



Text  



In my initial post on Cornell law professor Michael C. Dorf’s essay about President Obama’s do-over oath, I called attention to Dorf’s mistaken factual assertion about the official acts that Obama took between the oath on Inaugural Day and the do-over on the evening of January 21.  In a post on his own blog, Dorf accepts my correction.

In this post, I turn to the heart of Dorf’s argument—his claim that textualists like Justice Scalia are unable to justify the conclusion that the first oath was constitutionally adequate.

The constitutional question at issue is whether (to borrow from contract-law jargon) the president’s ability to exercise executive power requires that he have strictly complied with the Oath Clause or merely that he have substantially complied.*  In lay terms, must he have recited the prescribed oath exactly, or is it enough that his deviations from it were immaterial—and, if the latter, how measure materiality?

Dorf’s basic argument is that (1) textualists “reject evidence of the subjective purposes of laws (such as legislative history) and they also reject objective purposes attributed to the text” (emphasis added); (2) as a result, “if they are performing their task honestly, textualists are inevitably thrown back onto something like literalism”; and (3) “[t]aken to its logical extreme, the textualist’s philosophy would leave … no way to distinguish between merely technical deviations from the oath and substantive ones.” 

The foundational flaw in Dorf’s argument is his assertion that textualists like Scalia “reject objective purposes attributed to the text”.  That assertion strikes me as either flat wrong or as a gross overstatement.  In A Matter of Interpretation, Scalia defends a rule of construction in which judges, instead of looking for “subjective legislative intent[,] … look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law.”  It is true that he states his belief that judges have no authority to pursue the “broader social purposes” that a law is designed to serve.  But that means only that judges may not invoke a statute’s broader purpose to trump its actual text.  Scalia argues that a text “should be construed reasonably, to contain all that it fairly means”, and I see no reason to read that proposition to exclude all consideration of objective purpose (or “‘objectified’ intent” or what Scalia elsewhere refers to approvingly as “objective import”).  Indeed, Scalia explicitly distinguishes textualism from literalism, and he invites full consideration of a text’s context, which would seem inevitably to blend into some consideration of purpose.

How, then, would a textualist decide what satisfies the Oath Clause? As Dorf fairly summarizes Justice Scalia’s original-meaning textualism, legal texts “should be interpreted ‘reasonably’ in light of the public meaning of their words at the time of their adoption”.  So textualists, in discerning that reasonable public meaning, would consider the same objective purposes of the Oath Clause that Dorf invokes.  And in making distinctions between material and immaterial deviations, they would impute to the reasonable public at the time of the Framing the same “commonsensical” judgments that Dorf sensibly makes.  They would also consider, for example, whether George Washington’s addition to the oath of “so help me God”** triggered widespread objections that he had failed to satisfy the oath requirement and whether other contemporaneous oath requirements were deemed unsatisfied by the ordinary minor confusions, word switches, mispronunciations, and stammers to which even the most intelligent humans have long been vulnerable. 

It would be premature to predict the result of an original-meaning textualist inquiry before all available evidence is known and considered.  (One disadvantage of being an original-meaning textualist is that you have to do real work, unlike the living constitutionalists and non-textualists who can just make it up.)  But there’s certainly nothing in textualism that forecloses “honestly” reaching the conclusion that Obama’s first oath satisfied the Oath Clause.

One additional (and very, very minor) note:  In his blog post, Dorf complains that I said “his claim that textualists can’t fairly read the Oath Clause as being satisfied by substantial compliance with its terms is baseless.”  Dorf contends that he “did not exactly say” that textualists “can’t fairly read” the Oath Clause that way, but only that “it would be hard for them to do.”  But what Dorf really said is that genuine textualists can’t  reach the conclusion of substantial compliance “if they are performing their task honestly” and follow their methodology “to its logical extreme”.  The more modest language he uses for Chief Justice Roberts reflects his assessment that Roberts, rather than being a full-fledged textualist, “is somewhat more eclectic in his jurisprudential views” and merely has “textualist sympathies”.   (Imagine that:  A Supreme Court justice—Chief Justice, no less—with “textualist sympathies”!)

* Like Dorf, I assume for purposes of my discussion (both in this post and the previous post) that the Article II provision that the President take the oath of office “[b]efore he enter on the Execution of his Office” establishes a genuine condition precedent to the president’s exercise of executive power.  I assume, in other words, that the president can’t lawfully exercise executive power until he has satisfied the oath requirement.  I will note that it’s not obvious to me that my arguendo assumption is correct.  (If the assumption isn’t correct, then the entire question about the adequacy of the first oath is insignificant.)

** Update:  A reader calls to my attention that it is disputed whether Washington in fact added these words.  My point, of course, is merely to illustrate how originalist methodology would operate, not to take sides in that dispute. 


Tags: Whelan


Text  


Sign up for free NRO e-mails today:

Subscribe to National Review