"Originalism" Applied

Most folks know about the oft-publicized faux paus during Obama's recitation of the Oath of Office. Now, although a normal human being may find this only marginally comical, some so-called "Originalists" must be petitioning the Supreme Court at this very moment, attempting to invalidate the 44th president. As absurd as this may sound, it's not entirely made up. In order to elucidate the point, I direct your attention to this parody. It contains the "logic". I will re-post it in its entirety for 2 reasons; 1) because it made me giggle truthfully several times, and 2) since I have complete editorial control of this site, I have given myself permission... I know what you are saying: Didn't Barack Obama and John Roberts repeat the oath of office before the cameras on Wednesday?They did. But it makes absolutely no difference. Barack Obama is still not President and may not execute the powers of that office.To begin with, it is completely clear that Obama did not recite the oath prescribed in the Constitution at his inauguration on Tuesday. Article II, section 7 provides: 7. 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 the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." At Roberts' suggestion, Obama placed the word "faithfully" after the word "States." This should make no difference, you may say. But no, the text of the oath is prescribed in the Constitution and it may not be varied in any way in order to be legally effective. Anyone who says differently does not understand what it means to have a written constitution. Do you mean to suggest, for example, that Obama could add the words "hey nonny nonny and a hot cha cha" in the middle of the oath and it would be equally effective? Can he add the words "only if I feel like it" at the end of the oath? Surely you jest! And if your position is that he can make any changes he wants as long as they do not materially alter the oath, who is to decide whether the changes are material or not? That is why we have a written constitution, a Constitution that makes clear that he shall say just these words, and no others. Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly. If he flubs it, that's it! He can't execute the powers of his office. After all, Unitary means "one." Clearly if the President could take the oath repeatedly, he wouldn't be very Unitary, now would he? Suppose, however, that one rejects this utterly compelling argument based on the sacred and indisputable doctrine of the Unitary Executive. Obama's do-over still fails. That is because Obama callously deleted words from the oath and added words that are not in the Constitutional text. Surely if he may not move the word "faithfully" around in the text he may also not add or delete words either. In this case, Obama added the words "Barack Hussein Obama" after the word "I" and "So help me God" at the end of the oath. Furthermore, he deleted the words "(or affirm)." The mind boggles at this display of utter lawlessness. How could Obama and Chief Justice Roberts engage in such blatant editing of the sacred constitutional text? Can't they just read the words of the Constitution without editorializing? It is precisely this hubris on the part of judges and politicians that leads to the dreaded disease of "living constitutionalism," in which government officials add words to the constitutional text that aren't there and delete words that they find inconvenient. It is simply outrageous that both Roberts and Obama feel that they must flaunt their living constitutionalism before our very eyes in their faux Presidential oath of office! But you may object, no president since George Washington himself has read the constitutional text verbatim since the founding of the Republic. They have all inserted their names into the text in a raw display of egotism, and then added the words "So help me God." In addition, all the Presidents have deleted the words "or affirm" with two exceptions, when a President-elect deleted the words "swear" and "or." If the addition and deletion of words in the oath makes the oath ineffective, you may argue, no President has ever legitimately executed his office. To which I say, so what? Are we a government of laws or a government of men? Do we have a written constitution that is the supreme law of the land or do we simply have a set of suggestions that can be cavalierly discarded whenever they would offend the sensibilities of a President-elect? The Constitution's text is clear. It is up to us to follow it with blind and mindless obedience. If a President-elect cannot read a simple text faithfully without editorializing, he doesn't deserve to be the President. And if no President has been able to resist thinking he knows better, then none of them have lawfully acted as our nation's Chief Executive. But, you may object, didn't Barack Obama became President anyway on noon of Inauguration day, because of the 20th amendment? Of course not. The text of the 20th amendment is perfectly clear on this point: 1. The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. It is obvious to any schoolchild that the phrase "the terms of their successors" refers to the terms of Senators and Representatives, and not to the terms of the President and Vice-President. That is because an all important comma separates the two clauses. Moreover, the Twentieth Amendment did not explicitly repeal the Oath Clause of Article III, and it is clear from this clause that the President cannot begin to execute the powers of his office until he takes the oath. I am sure that many people wish that the President could edit the oath of office however he likes, for example, adding his own name and the words "so help me God." But these people do not understand what it means to have a government founded on a written constitution. Perhaps the failure of Barack Obama to become President, and the crisis that ensues, will serve as a lesson to them to hew more closely to the genius of our founding fathers. Lol... Can't people understand the clear meaning of the Constitution?? Must it always be explained?? This parody includes many topics that I have mentioned before, such as the legal significance of comma placement and the status of originalism with respect to US law. The interesting thing is to read the response from a self-described "originalist" - and usually a moderately decent guy - Michael Stokes Paulsen. His response is here: Touche! I greatly enjoyed Jack Balkin's skewering of strict textualism and formalism ("Why Barack Obama Still Isn't President"), even though I am an apostle of these methods. Alas, I was hoping Jack was serious. But sadly (for the house conservative), I must concede that Barack Obama lawfully holds, and properly could "enter on the execution of" the Office of President of the United States. Reeling, knocked to the ground by Jack's devestating demolition of originalist textualism, struggling to pick myself up, and depressed generally, I am driven by desperation to suggest some saving constructions for originalist methodology. Is it possible, for example, for a departure from the Constitution to be a real, actual departure from the Constitution (understood according to its original public linguistic meaning) but yet be of no constitutional consequence? Is there a (legitimate) doctrine of "harmless constitutional error"?... Perhaps, for additions, rather than deletions, a better term would be extra-constitutional, so long as what is added does not subtract or detract from what remains. George Washington's traditional addition "so help me God" does not so much "violate" the Oath Clause (we will save for another day whether it violates the Establishment Clause) as add something of his own -- a little presidential speech, as it were, no different in principle from the giving of an Inaugural Address (which also goes beyond the Constitution's requirements). So too, "hey nonny nonny and a hot cha cha" adds something -- akin to Inaugural balls and parties. If it subtracts anything, it subtracts dignity and gravitas. It does not subtract from the oath. The accidental rearrangement of "faithfully" strikes me as a deviation from the Constitution that does not subtract or detract from the oath. But for the sake of argument let's call the deviation "unconstitutional." What is the legal effect of this constitutional violation? Can a violation of the Constitution ever be "harmless," in the sense that it does not matter to anything? I, too, along with a fearful nation, was greatly relieved that the oath was, later, faithfully executed. But even a pig-headed formalist (like me) thinks that some "violations" of the Constitution simply are not material. They do not affect constitutional powers or privileges in any way. Apparently, the purported death of Republican humor has been (only) slightly exaggerated. Paulson absorbs the hit almost with comedic grace. Then, however, he sets off explaining how the parody is almost accurate... the "originalist" then starts discussing something truly spooky - how violating the Constitution may be "not material"?? Holy crap, we argue more or less forever about the legal significance of particular words and punctuation, and then we decide that the resulting interpretation is immaterial? Sounds awfully progressive to me...