CONSTITUTIONAL CROWDING AND ARTICLE II.

• Author: Vora, Amit

INTRODUCTION

When President-elect Obama and Chief Justice Roberts fumbled the presidential oath of office, most observers were amused but unconcerned. Despite grumbling at the margins, legal academics and lawyers largely agreed that the bungled duet was sufficient to strip the "-elect" designation from Obama's official title--and that, even if not, the Chief Executive and the Chief Justice could take a mulligan and recreate the scene. (1) The oath had symbolic significance, but in the final analysis, both casual and professional constitutional scholars viewed the oath's administration as a ceremonial device that merely marked the transition of presidential power. (2) Since then, President Trump's rise, fall, and possible return to public life has invigorated popular interest in the oath's substantive and normative implications. (3) Those implications remain mysterious, however.

On one hand, it is sensible to disregard the pomp and circumstance surrounding the oath's administration. On the other, it is shortsighted to undervalue the oath's role in our constitutional system. Unlike the Vesting Clause and the Take Care Clause, the Presidential Oath Clause is linguistically remarkable: "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." (4) Indeed, among all the sentences in Article II, only the oath reflects the teachings of the post-revolutionary period and the spirit of The Federalist No. 70, where Alexander Hamilton demanded executive "energy." (5) Plus, unlike Article VI, which obligates officers to take an oath to "support this Constitution," the presidential oath's precise content is specified in the Constitution. (6) And while officers swear to "support and defend the Constitution" under the statute that implements Article VI, the prerogative to "preserve, protect, and defend the Constitution" resides in the office of the president alone. (7)

Beyond the text, the Presidential Oath Clause's importance is thrown into even starker relief when the historical context of its birth is viewed through the contemporary lens of social science. Given the competing demands of creating an executive office that was neither incompetent nor monarchial, the Article II that emerged from Constitutional Convention was, to put it mildly, under-specified. Yet modern lessons from social science about motivation crowding suggest that Article II's peculiar structure--a blank slate plus an oath--could be a design feature, not a bug.

THE PRESIDENTIAL OATH CLAUSE'S ORIGINS AND NORMATIVE FUNCTIONS

The framers constructed the Presidential Oath Clause without much fanfare. (8) Upon deciding that the President should take an oath of office, some delegates to the Constitutional Convention preferred to leave the specific language of the oath to Congress. (9) Nonetheless, on August 5, 1787, the Convention's Committee of Detail drafted an embryonic Presidential Oath Clause: "[b]efore he shall enter on the duties of his department, he shall take the following oath or affirmation, 'I,----solemnly swear, (or affirm) that I will faithfully execute the office of President of the United States of America.'" (10) On August 27, 1787, according to James Madison's own notes, he and George Mason "moved to add to the oath to be taken by the supreme Executive, 'and will to the best of my judgment and power preserve protect and defend the Constitution of the U.S.'" (11) Although James Wilson objected that the "general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary," the motion to amend passed by seven votes to one, with two states abstaining. (12) The Committee of Style responded with the following Oath Clause:

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 judgment and power, preserve, protect and defend the constitution of the United States." (13) On September 12, 1787, the Committee made two final stylistic revisions--substituting "on the execution of his office" for "duties of his department" and "ability" for "judgment and power"--and the Presidential Oath Clause was born. (14)

The rest of Article II's text, however, is less exciting. The oath is a lyrical reprieve. History hints at an explanation. Federal ineptitude during the post-revolutionary period had moved the Framers to dismantle the Continental Congress, to scrap the Articles of Confederation, and to fashion a strong national executive office. (15) Hamilton thus conveyed the Framers' eagerness for a robust executive branch in The Federalist No. 70, where he advocated executive "energy." (16) As Hamilton explained, an energetic president was essential for national security, for the "steady administration of the laws," to protect "property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice," and to secure "liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (17) The central objective of their Article II project was to fashion an executive authority that was dynamic enough "to vindicate the spirit of the laws" and to "keep the ship of state afloat," as Akhil Amar puts it. (18) Always vigilant, never asleep, the president was authorized to keep the United States running as a going concern. (19) Then again, the Framers were loath to replace one King George with another. Hence James Madison's warning: "[y]ou must first...