Constitutional expectations.

• Author: Primus, Richard
• Position: Equality on political representation in the House of Representatives

INTRODUCTION I. THE OATH II. EXPECTATIONS III. THE ACT IV. CHANGE A. In General B. In Particular C. Timing CONCLUSION INTRODUCTION

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. (1) The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. (2) Or that, at least, is what everyone thinks happened. (3) What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. (4) But the second time, nobody minded. Or even noticed. In that unremarked feature of an otherwise trivial affair lies a deep truth about the role of text in American constitutionalism. And as the outlines of the great are sometimes visible in the small, careful attention to the "corrected" inaugural oath can reveal something important about how larger constitutional questions are resolved.

Consider the more significant issue, now before Congress, of whether to give the District of Columbia a voting seat in the House of Representatives. (5) Many people consider giving the District a representative flatly unconstitutional, (6) and their view has a reasonable basis. The Constitution says that members of the House shall be chosen "by the People of the several States," (7) and the District of Columbia is not a state. But the kerfuffle over the inaugural oath suggests two lessons. The first is that the text of the Constitution need not prevent D.C. from sitting in Congress. The second, however, is that passing the District of Columbia House Voting Rights Act might have the unintended effect of delaying the enfranchisement of District residents. If the inaugural oath played as constitutional farce, passage of the Act might lead to constitutional tragedy.

To understand why, we should start by going back to the inauguration.

1. THE OATH

   Recall what happened on Inauguration Day. According to Article II of the Constitution, the President is supposed to swear that he will "faithfully execute the Office of President of the United States." (8) When prompting the President, the Chief Justice mistakenly put the word "faithfully" at the end of the phrase, so the inauguree swore to "execute the Office of President of the United States faithfully" instead. (9) In all likelihood, the error had no legal significance. But as a matter of statesmanship, botching the Constitution was unfortunate, and self-appointed watchdogs began to chatter. (10)

   Just to be sure, the President and the Chief Justice restaged the swearing-in one day later. When Chief Justice Roberts asked whether the President was ready to take the oath again, President Obama replied, "I am--and we're going to do it very slowly." (11) There was no room for mistake; everything should be perfect. White House Counsel Greg Craig emphasized this exacting approach to the oath in an official statement:

   We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday. But the oath appears in the Constitution itself, and out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time. (12) Given all that, one might think that the Chief Justice and the President adhered scrupulously to the text of Article II on their second try. But they did not. Taking his cue from the Chief Justice, President Obama began his second attempt at the oath with the words "I, Barack Hussein Obama, do solemnly swear...." (13) As should be obvious, Article II does not contain the words "Barack Hussein Obama." Nor does Article II say "I [insert name here] do solemnly swear." What the Constitution says, quite clearly, is, "I do solemnly swear...." (14) So when President Obama inserted his name be tween "I" and "do," he deviated from the text of the Constitution just as surely as he had the day before.

   The point here is not that the President got the oath wrong by inserting his name, much less that he and Chief Justice Roberts need to do a third take. For one thing, this second deviation from the text is legally inconsequential. But that was true of the oath as spoken on January 20, too. The important point is that on the second try, the President got the oath exactly right, albeit without conforming to the words of the Constitution. The first deviation from the text struck people as wrong--wrong enough to warrant staging the ritual again. The second deviation from the text struck people as right--right enough as to be the way that the ritual was conducted under conditions of maximum exactitude. People who were exercised about the first textual departure were happy with the second one: the cable news commentariat and the blogosphere, both of which had field days with the January 20 oath, seemed fully satisfied by the January 21 version.

   The reason why is deeply planted in American legal culture. It has to do with something we might call constitutional expectations.

2. EXPECTATIONS

   Constitutional expectations are intuitions about how the system is supposed to work. They arise from a combination of experience, socialization, and principle. Obviously, Americans do not all share a single, precisely defined set of expectations. Indeed, conflicts among rival sets of expectations help to account for many disagreements about constitutional law. Over a relatively broad domain, however, informed Americans share expectations about the rules of government. Those expectations are often closely related to the constitutional text, but the text does not always capture them precisely. On the contrary, our shared expectations go well beyond the strict textual requirements of the Constitution.

   We all expect that members of both parties will stand up and applaud when the President enters the House chamber to deliver a State of the Union Address. More consequentially, we all expect that elections will be held on a certain Tuesday in November and that the party in power will not move election day to a time more favorable for its own partisan political fortunes. Political parties in other democracies routinely engage in election-timing gamesmanship, and we do not think that our elected officials are above partisan tactics, but moving election day is something we expect them not to do. The Constitution does not forbid it; on the contrary, Article I empowers Congress to pick the date. (15) But as informed and experienced members of this society, we have a different sense of the rules of the game, and we firmly expect that those rules will be observed.

   Constitutional expectations can supplement the Constitution's text. We all agree that the President may not censor speech critical of his administration, even though the First Amendment is addressed only to Congress. (16) And sometimes our constitutional expectations actually override the text. For example, Article III says that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." (17) In practice, criminal defendants in federal courts routinely waive jury trial, opting to be tried by judges alone. We read Article III as if it said that a defendant may choose a jury trial, even though it actually says that a jury trial is mandatory. Almost nobody minds that we deviate from this text. (18) We think of a jury trial as a right of the accused rather than a necessary structural feature of adjudication, and we have done things this way for a long time, so nothing strikes us as strange when a judge grants a defendant's request to skip the jury. Our constitutional expectations are not offended, and we do not pause much over the language of Article III, if we notice it at all.

   Our shared constitutional expectations explain why the constitutionally correct form of the inaugural oath began "I, Barack Hussein Obama, do solemnly swear," even though the text of Article II says something else. With the exception of Lyndon Johnson on the day of his emergency inauguration aboard Air Force One, every President since Franklin Roosevelt has inserted his name into the oath. (19) Few Presidents inserted their names prior to Roosevelt. Some did not personally recite the oath at all, instead merely responding "I do" after someone else recited the oath in question form. (20) But as a result of a nearly continuous practice over the last seventy-six years, each of us today who remembers previous inaugurations--or has seen recordings or fictionalized representations--expects to hear the name. Those expectations define the operative constitutional norm, even though the text reads differently.

   Our organic sense of the ritual defines the constitutional norm so powerfully that we depart from the text even when going slowly and carefully so as to get every little thing exactly right. This does not mean that we disrespect the Constitution. The Constitution is sacred to Americans, just as Scripture is sacred to believers. But as people of many faiths know, sacred texts are often approached through the lens of traditional practice, and the expectations that practice creates are often more powerful than words on paper. So when we have a settled practice of doing something different from what is written in the text, the text tends to give way.

   When that happens, Americans rarely say, "We are now departing from the text." Our genuine regard for the document and our self-conception as a political community governed under a written constitution are too powerful to permit that move, or at least to permit it frequently. More often, we reread the text to make it match our practices, either by giving new content to specific terms or by deciding that what a textual passage reasonably means is different from what it literally says. And sometimes--indeed, more often than most of us realize--we just...